Part I: Sources mentioned by Dr. Benny Brown
A. The Babylonian Talmud explains the statement of Rabbah b. Rav Huna that ‘‘anything said in front of three people is not considered libel,’’ based on the assumption that it will spread in any case: ‘‘Your friend has a friend, and your friend’s friend has a friend.’’133
B. Rabbah stated that it is permissible to say libel in front of the offended party: ‘‘Anything said in front of the person is not considered libel.’’134 He bases this statement on the opinion of Rabbi Yosi: ‘‘I never said anything and turned around.’’ Rashi broadens this leniency even further, holding that to remove the statement from the category of libel, it is not necessary for the person to actually say the statement in front of the offended party, but enough that he is prepared to do so.135
C. The Jerusalem Talmud cites the following statement in the name of Rabbi Yonatan: ‘‘It is permissible to speak libel about quarrel mongers.’’136
D. bYoma states: ‘‘One may publicize the [identity of] hypocrites in order to prevent desecration of God’s name.’’137
E. Rav Ashi stated that ‘‘it is permitted to call a person who has acquired a bad reputation a ’gimmel’ or a ’shin’.’’ In other words, one about whom there are negative rumors138 can be degraded and called ‘‘son of a whore’’ and ‘‘son of a rotten one’’ (or ‘‘son of a stupid whore,’’ or ‘‘son of a Gentile,’’ or ‘‘son of a slave,’’ according to other interpretations), which casts aspersions not only on him, but also on his mother.139 Similarly, Rav said: ‘‘One may flog a person for negative rumors.’’140 Rashi explains that ‘‘a person about whom it is reported that he transgressed is given lashes.’’ bM.Q. records a story in which Rabbi Yehudah allowed himself to excommunicate a scholar because ‘‘bad rumors had been heard about him’’.141 Also among the rishonim (medieval rabbis), we find that it was permissible to impose sanctions based on rumors.
The Hafetz Hayim dedicates several long discussions to speaking libel about someone who has a bad reputation. In general, he objects to relying on rumors, and prohibits spreading them further:
‘‘If a rumor was perpetrated about someone claiming that he did or said something that is inappropriate according to the Torah, be it a severe prohibition or a lighter one, it is nevertheless prohibited to believe it in a resolute manner [...], and how much more so must he be careful, if he wishes to mention it to another person, not to spread it further and publicize it more.’’173 He explains the permit to denigrate, censure, excommunicate, or punish based on rumors in a manner consistent with his general approach, i.e., that it is only for the purpose of censuring ‘‘evil people’’ and excluding them from the protection of the prohibition of libel.174 He therefore limits this permit by establishing a |series of qualifications. First, the permission to speak libel about a person who is the subject of rumors does not apply to a person about whom there are isolated rumors, but only to one who is regularly the subject of rumors.175 The Hafetz Hayim agrees that for this type of person, ‘‘it is permissible to conclude that he is evil and to denigrate him, even a person who does not know him well.’’176 Second, the permit applies only to rumors about the transgression of offenses ‘‘that are well known among all Jews to be prohibited.’’177 Third, one who degrades a person about whom there are rumors can only do so in his presence (‘‘to his face’’).178 Fourth, even after all of these qualifications, the Hafetz Hayim adds an interesting note: ‘‘And I was very much afraid to write this law because of the libel-inclined persons who upon hearing one negative thing, will immediately assume that person to be evil and degrade him, and will justify their behavior as being based on this book. Nevertheless, I did not delete it, for as our Sages said in Bava Batra (89b) about Rabban Yohanan b. Zakkai: ’He said it [openly – a law that the transgressors may abuse] and his source [for that] was this verse (Hos 14:10): For the ways of the Lord are right, and the just do walk in them; but transgressors do stumble on them’.’’179Part II. Niddah(61a) is an important source for understanding the validity of rumor or lashon harah changing a chazkas kashrus.
Raba observed: As to slander [lash harah], though one should not believe it one should nevertheless take note of it. There were certain Galileans about whom a rumour was spread that they killed a person. They came to R. Tarfon and said to him, ‘Will the Master hide us? ‘How’, he replied, ‘should I act? Should I not hide you, they [the Romans] would see you. [and take vengeance] Should I hide you, I would be acting contrary to the statement of the Rabbis, "As to slander, though one should not believe it, one should take note of it". Go you and hide yourselves’.
According to Rashi, Rav Tarfon is saying perhaps they did in fact kill someone - as the rumors say - and then it would be prohibited to save their lives because they are criminals. Consequently he refused to be involved in saving them and told them to hide themselves. Clearly Rashi understands Rav Tarfon to view the Galileans differently simply because of the rumors - without a psak from beis din.
[This is also be relevant concerning extradition. [see JLaw Article by Prof M Elon] If goyim demanded that someone who was rumored to have committed a crime be turned over to them - - it would seem from Rashi that it would be permitted to give them the accused.]
Both Tosfos and the Rosh strongly reject Rashi's view. [Chofetz Chaim (6:10 takes their viewpoint]
Prof Elon explains
Why did R. Tarfon refuse to help the suspected criminals? Of what specifically was he suspicious? Rashi explains that R. Tarfon told them, "perhaps you killed, and it is forbidden to save you." Tosafot disagrees, and, citing the She'iltot, explains, "perhaps you killed, and if I hide you. I will forfeit my life to the king." According to this explanation, R. Tarfon's refusal to help them was due to concern for his personal safety rather than moral objections. The Rosh (ad.loc. 9,5) rejects Rashi's explanation for the following reason: "Is it possible that because of a mere rumor that someone sinned it will be forbidden to save his life?" He therefore accepts the explanation of the She'iltot. The Maharshal (ad.loc.), commenting on the She'iltot, writes:There is no proof here that one should protect a murderer. Even though we do not have the power to try capital cases, nonetheless it is prohibited to save him. "So shall all Your enemies perish, God" (Jud. 6,31), and our hands should not aid them. The reason it was permitted to save them (in the case of R. Tarfon) was because there was a doubt (whether they were guilty) and (we act to save a life if there is even a possibility that it should be saved). Furthermore, each individual is presumed to be innocent until proven guilty, so we can say that he definitely did not murder anyone.This story, together with all the various commentaries (of which only some have been cited above) embodies the different attitudes toward the question of harboring a murderer. Rashi maintains that it is prohibited, even if there is merely a doubt whether he committed the crime; Tosafot contends that R. Tarfon refused them help because of concern for his own safety and not because it was intrinsically prohibited; the Rosh supports harboring one who is only rumored to have committed a crime; and the Maharshal states unequivocally that one should not help a murderer, except where there is a doubt concerning his guilt, in which case we apply the principle that he retains his presumption of innocence.
In sum, we have two different approaches - but they both can lead to view a person differently simply because of rumor without a psak from Beis Din.
Rashi says is is prohibited to save a criminal even if it just a rumor because perhaps the rumor is true. This is a moral issue. Thus the rumor changes the persons status in terms of aiding him which would include not saving his life. It would also follow that one could fire or refuse to hire a person based on rumor because if the rumors are true then he is not fit for job. This is in fact the view of the Sho'el U'Meishiv and others. A suspected criminal or sinner can be treated as if he is a sinner or criminal.
On the other hand, the Rosh and Tosfos based on the She'iltos says that it is not a question of prohibition to save a criminal - it is whether your life becomes endangered if the rumors are true. Saving someone who is rumored to be a murderer means he might be dangerous to the one who provides the aid either because he is dangerous or because the government will kill the one who helped him. If there were no danger of death - but only loss of money or suffering - than it is reasonable that they would require aiding the rumored criminal or sinner because after all he should be presumed innocent without beis din. Therefore only if there was a possibly of danger to life if the rumor were true - would it be permitted to treat the accused differently. In short the rumors would have to indicate that the accused is a rodef to have an impact on his presumptive status.
However I looked up the She'iltos that both the Rosh and Tosfos base themselves on and there is a major problem. The She'iltos does not say not to save the rumored murderer because it endangers your life. He says because helping might cause suffering. Thus while the She'iltos is disagreeing with Rashi's claim that helping criminals (even rumored ones) is prohibited. He disagrees with Tosfos and the Rosh who say not to help because it is potentially fatal. The She'iltos says it is enough if the helping might cause suffering or inconvenience.
This is the She'iltos (129). There is no alternative version for the word tzar in the Mirksy edition found on Hebrew Books.
. הנהו בני גלילא דנפק קלא עלייתו דקטלו נפשא, אתו לקמיה דרבי טרפון אמרו ליה: אטמירנן מר. אמר להו: אמור רבנן, לישנא בישא אע״ג דלקבוליה לא מיבעי, למיחש ליה מיבעי, דילמא איתא למילתא, ולא מסתייעא מילתייכו, וגרמיתון צערא לדילי נמי, אזילו אתון אטמירו נפשייכו.
To be continued
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