Freedom of speech?
By: Rabbi Baruch Meir Levine of The Bais HaVaad Institute

Reuvain wakes up one morning to find an off-white blotch on his hand. Nervously, he makes his way through the desert to Shimon the Kohen’s tent. After carefully studying Reuvain’s hand, Shimon pronounces the dreaded word, “tamai”. Reuvain is now a metzora. Reuvain slowly trudges back to his tent, bracing himself for a week of confinement outside the Jewish encampment. On his fifth day of confinement, Reuvain receives a surprise visit from Shimon. Shimon explains that he had mistaken the halacha of a white blotch with that of an off-white one, and in fact Reuvain was never a metzora in the first place. After apologizing profusely, he pronounces the word “tahor”, and Reuvain is free to go home. But Reuvain’s sense of relief is overcome by his feeling of resentment towards Shimon. Couldn’t Shimon have double checked the halacha with one of his peers before issuing a ruling of such magnitude?

Fast forward 3300 years… On May 10, 2010, after spending 8 years in prison, Zhao Zuohai was found not guilty of his charges, after a court retried his case. Zuohai was convicted in December of 2002 on manslaughter charges based on the testimony of a single witness, and was sentenced to 29 years in prison. On April 30, 2010, the man Zuohai was convicted of killing was discovered to be alive. The local court acted with lightening speed and only ten days later retried and acquitted Zuohai. He was immediately released from custody. Subsequently, he was awarded compensation of 650,000 yuan (about $96,000) for his wrongful imprisonment.

Although this is an extreme case of judicial misconduct, the fact is that it is possible for (l’havdil) a Dayan or a Kohen to issue an erroneous ruling, whether by mistaking the halacha or by misjudging its application. What compensation, if any, does halacha entitle one who is punished through a mistaken ruling? Is Shimon the Kohen liable in any way for his misjudgment?

Liability for judicial misconduct

The Shulchan Aruch in (Choshen Mishpat, 25; 1-3) states, “ a judge who issued a ruling in error… and the judgment cannot be undone, such as if the plaintiff already received money from the defendant and can no longer be located, or if he (in this case, a Rov) erroneously ruled a certain piece of meat as non-kosher, and it was subsequently fed to the dogs… they (the judge or the Rov) are not obligated to pay for these losses since they did not have intention of causing damage¹”

The Sm”a questions this halacha from the fact that one is often held liable for indirectly causing damage to another even when done unintentionally, as long as he was negligent to some degree. For example, the Shulchan Aruch (Choshen Mishpat, 306; 4-7) discusses a coin inspector that was hired by a merchant to advise him on accepting a certain coin from a prospective buyer as being genuine. The Shulchan Aruch there rules that if he recommended the coin as being genuine and it was later discovered to be counterfeit, he would be responsible to reimburse the merchant for his loss, provided that other professionals in the field would have picked up on the coins nature. This type of damage is referred to as garmi, (lit. causing). Why then should a Dayan or a Rov not be held personally liable for the damage caused by their error in ruling?

The Sm”a explains that a special takana was instituted protecting Dayanim and Rabanim from personal liability of mistaken rulings, for if not, people would refrain from becoming Dayanim or Rabanim. Therefore as long as they acted in good faith they would not be liable for an error in judgment, even if it were due to negligence on their part.

However the Shulchan Aruch does state that if the Dayan or Rov was not adequately knowledgeable to issue rulings in that field but did so any way, he would be liable to pay for the damages. Obviously the above mentioned takana would not extend to such a case.

Getting back to Reuvain the (mistaken) metzora, if it was indeed determined that Shimon the Kohen was not knowledgeable enough to issue rulings regarding tzara’as, would he be made responsible to offer compensation to Reuvain for his unwarranted confinement?

The truth be told, it would be difficult to extend the Shulchan Aruch’s ruling to this case. This is because Reuvain did not suffer any financial loss as a result of Shimon’s ruling. Although causing one to be wrongfully locked up even in prison would certainly be prohibited, and would be punishable by Hashem, it is not recognized as damage that a Bais Din can seek retribution for. However if Reuvain operated some sort of business in the dessert and can prove that he had a loss of revenue due to his confinement, according to the view of some Poskim, (Ma’asas Binyomin, 27) Shimon would be obligated to reimburse him for this loss.

Other forms of causing damage verbally

The truth is, that delivering improper rulings or advice are not the only instances where one can be liable for the damage caused by his speech. For example, the Shulchan Aruch (Choshen Mishpat, 388; 2) rules that one who discloses the location of his friend’s money to a bandit, would be responsible to pay for any money that the bandit ends up taking.

Another example would be the following incident which was brought before the Terumas Hadeshen (307) in the fifteenth century. Rumors had been circulating in the town that the Chazzan had engaged in improper behavior. Because of these rumors, the town committee went and removed him from his post. After a while, though, it became evident that these rumors were totally baseless and were in fact all started by one individual. However by that time the committee had already hired a new Chazzan and thus the former Chazzan was unable to regain his job. The question was, could the slanderer be made responsible to pay the Chazzan for his lost wages? The Terumas Hadeshen ruled that the lost wages were too indirect a damage for Bais Din to impose payment for, however the slanderer had an obligation to reimburse the Chazzan on his own initiative.

The bottom line

And so we see, there really is no such a thing as “freedom of speech”. Rather speech is a tool just as sticks and stones are. And although it cannot break any bones it can do much harm. It can cause a Chazzan to lose his job, a merchant to accept counterfeit coins as payment, and even one to be erroneously placed in confinement for a couple of days. And as with any other tool, one can be financially liable for the damage he does with it.

And when we think about it, perhaps this is precisely the lesson the Torah is trying to teach the metzora. As Chazal explain, the affliction of tzara’as came as a punishment for speaking lashon hora. One who speaks lashon hora is not acknowledging speech as a tool which needs caution. After all, there’s “freedom of speech”. The procedure of tzara’as then shows him the very real ramifications that speech can have. The word “tamai” causes him to get sent away for a week and the word “tahor” causes him to be returned, hopefully a changed person.    

This article has been written by The Bais HaVaad L’Inyonei Mishpat and is meant for awareness purposes only. A slight variation of the facts can significantly change the Halacha. For Choshen Mishpat related questions or services please contact The Bais HaVaad office located on 32 Fifth St. in Lakewood N.J. or call 1.888.485.VAAD(8223) or email [email protected] For articles and for other forms of Choshen Mishpat content please visit www.BaisHaVaad.com