The Laws of Lashon Ha-ra and Rekhilut (2)

THE LAWS OF LASHON HA-RA AND REKHILUT – PART II*

 

 

 

            The Gemara in Bava Batra 39a states:

 

Rabba the son of Rav Huna said: Any [disparaging] remark made in the presence of three persons does not constitute lashon ha-ra.

 

            This position is quite surprising: how does the presence of three people resolve the problem of lashon ha-ra?

 

            The Tosafot (ad loc., s.v. let bah {the latter}) explain:

 

This means, for him who says it in the presence of three people.

 

            That is, a person who speaks disparagingly about another person in the presence of three people is not considered as having spoken lashon ha-ra. But the question remains why the fact that the remarks were made in the presence of three people should solve the problem.

 

The Chafetz Chayyim writes in several place that the rule of "in the presence of three" cannot be understood in its plain sense. He brings, among other things, the words of Tosafot in Arakhin 16a relating to that statement:

 

This means, like in the case of "there is a fire in the house of So-and-so," as it might be understood that he did not say it in slanderous fashion. But if he said something vexing about his fellow, even if he said it in his presence, it is considered lashon ha-ra.

 

            It would appear that according to the Tosafot, and so too according to Rashi, the idea is that when a person says something in the presence of three people, it is as if he said it in the presence of the person himself about whom the remark was made.

 

            In any event, the Tosafot explicitly state that this is only permitted in the case of a remark that is not clear-cut lashon ha-ra, such as, "there is a fire in the house of So-and-so," meaning a statement that could be understood in two ways – to the person's credit or to his disfavor. But if a person says something that is clearly disparaging, even if he says it in the presence of three people, it is lashon ha-ra. The reason is that when a person says something in the presence of three people, it is considered as if he said it in the presence of the subject of the remark (the person about whom it was said).  When such an ambivalent statement is made in the subject’s presence, he has the ability to defend himself and explain his side.  However, if it is a clearly disparaging remark, this will not be effective.

 

            The Chafetz Chayyim explains, based on the words of the Tosafot, that in the case of a remark that could be understood in two ways, since he says it in the presence of three people, he presumably says it with good intentions, and the listener will interpret his words in a positive manner. That is to say, the three people serve as a means of determining how the remark was made, in a negative sense or in a positive one. When three people hear the remark, it may be assumed that the speaker made it in the positive sense.

 

The principle that emerges from the words of the Chafetz Chayyim is that a clearly disparaging remark may not be made even in the presence of the person himself about whom the remark is made, and this is true even if the speaker includes himself as a target of the disparagement, and all the more so is this forbidden if the remark is made in the presence of three people who merely pass on the information to the subject  of the remark.

 

There is an alternative understanding of Tosafot to that of the Chafetz Chayyim. The plain sense of the Tosafot is that the person made the remark with no intention of causing harm, and the three people cause him to be careful in his words, because he does not wish to cause his fellow any harm.

 

The Rashbam in Bava Batra (39a s.v. de-mit’amra) understands the matter differently:

 

There is no lashon ha-ra if they will go and tell that person: This is what So-and-so said about you. And the reason is as is explained in Arakhin: “Why is it permitted?  Because ‘your friend has a friend’ [and the word will spread]. And Abaye said there that anything that is likely to become revealed is not considered lashon ha-ra.

 

            This does not mean that the person who made the remark did not violate the prohibition of speaking lashon ha-ra, but only that if those three people go and tell the person that this is what the other person said about him, that is not lashon ha-ra. The reason is that once a remark is made in the presence of three people, it will presumably reach the person about whom the remark was made, and therefore one is permitted to go and tell him directly.

 

            In this context there is an important point to be noted. When we talk about intention to harm, it does not mean that the person actually wanted to cause harm, but rather that harm could result from the remark, even if the speaker had no intention of causing harm. When, however, the remark is made in the presence of three people, it may be assumed that sooner or later it will become a matter of public knowledge, and therefore a person may go ahead and publicize it sooner, if he has some good reason to do so.

 

            The Rambam in Hilkhot De'ot 7:5 writes:

 

If such statements were made in the presence of three people, [one may assume that the matter] has already become public knowledge. Thus, if one of the three relates the matter a second time, it is not considered lashon ha-ra, provided his intention was not to spread the matter further and publicize it.

 

            The Rambam follows the approach of the Rashbam, and understands that the Gemara is dealing with the case where one of the three people relates the remark to another person.

 

The Rashbam in Bava Batra 39b brings another viewpoint in the name of his teachers:

 

And all of our teachers explain that “protest” involves lashon ha-ra, for he says: So-and-so is a thief. Therefore, according to Rabba bar Bar Huna, if [the “protest”] is made in the presence of [only] two people, it is not “protest,” for it involves lashon ha-ra.

 

            The Gemara arrives at the rule regarding lashon ha-ra said in the presence of three people from the discussion regarding presumptions of ownership in the case of fields. The Rashbam's teachers explained that the whole law of "in the presence of three" relates only to a case where a person has to protest against another person having illegally taken possession of his fields (this formal act of protest is required for him to maintain his legal standing regarding the fields in question). In such a case, in order that his protest not be regarded as lashon ha-ra, it must be made in the presence of three people. It turns out, then, that the law of "in the presence of three" is not an allowance, but rather a stringency in the laws governing “protest.”

 

            The logic is, as we explained above, that the speaker assumes that his remarks will become a matter of public knowledge, and therefore he is careful about what he says, and speaks the truth, so that he not get into a fight with the subject of his remarks. The novelty of this statement is that even where there is a benefit for the speaker, and together with that another person suffers harm, if the subject did nothing wrong, the speaker is forbidden to make the remark; however, if the subject's behavior justifies the statement, the speaker is permitted to make the remark, provided that three people are present.

 

            Rabbenu Yona in Bava Batra (Aliyot de-rabbeinu Yona, 39a, s.v. ve-amar) explains the rationale for this:

 

It may be explained that we are dealing with remarks that are permitted if they are true, e.g., one who complains about another person in the presence of other people for the theft that the subject committed against him, or one who relates about the damages that the subject caused him… But certainly regarding interpersonal matters where no resolution can be had until he makes an account, or appeases his fellow, but he refuses to do so, or regarding other sins that he performs intentionally… there is a mitzva to denounce him in public… And about this they said: Any [disparaging] remark made in the presence of three persons does not constitute lashon ha-ra.

 

            This is similar in approach to the position of the Rashbam's teachers, but here there is an important expansion that is exceedingly relevant in our times.

 

The speaker believes that his publicizing the matter will not only bring about his own personal benefit, but that it will help lead the subject away from sinning. In such a case, Rabbenu Yona rules that this is permitted. Precisely because the information is not being transmitted secretly, an act that will not lead to any improved conduct, but rather it is being told in a way where it can serve as a corrective, where the speaker is driven by a worthy motivation.

 

We can even extend the allowance and say that this notion can serve as the basis of the idea of "the people's right to know," based on the assumption that publicizing a person's offenses will cause him to think twice about doing them again in the future, or at least discourage others from doing similar things.

 

It may be also be suggested that the fact that the story itself is told may be regarded as a punishment. Publication of the negative things that a person does serves as a punishment for those actions.

 

This principle is firmly entrenched within us, since it is a foundation of democratic society. The laws of libel are restricted to cases where the slanderous remarks are untrue. Civil law does not address the issue of saying negative things about a person when they are true, and the common attitude is that if a person does not want people to speak badly about him, he should refrain from doing bad things.

 

Nonetheless, it is important to emphasize the difference between Halakha's position, which also finds expression in the words of Rabbenu Yona, and this attitude. Not every person is fit to punish sinners, nor can every person judge and execute his own verdict; an ordinary person is forbidden to punish his fellow person.

 

Most of what is published in the media of this type is outright lashon ha-ra. There are certain people – public figures – who have essentially granted others permission to write about them. The public certainly has the right to know who they are, and therefore it is permissible to publicize negtive things about them. Not out of a desire to punish, but rather out of a desire to bring the matter to the public's attention. But if the reporter's intention is to punish, even when there is some benefit to be derived, it is forbidden.

 

(Translated by David Strauss)