Perfidy 2023 – Part 1: Sticks and Stones

 

 

Author’s note – Like many other posts, this one was meant to be a short post about what I believe is a miscarriage of justice, but it overflowed its banks. As such, I need to divide it into two parts. Here is Part 1.

The discussion of Lashon Hara in this post is exclusively secular legal Lashon Hara by Israeli civil law (Libel). It is not discussing the Halachic Shmiras Halashon of the Chofetz Chaim.

 

I went to visit my friend the Eldest Oyster not long ago. Yep, he’s still around. He told me that people have been calling him all kinds of slurs. “Anti-vaxxer”, “conspiracy-theorist”, “menace to society”, “hazardous waste”, that kind of thing.

I told him that when I was a kid, we used to have a little jingle that would neutralize all the name calling. The jingle went, “Sticks and stones may break my bones, but names can never hurt me.”

He said that would never work in his community. I asked why, and he said, “Oysters don’t have bones. But we have hard shells. And the older we get, the harder the shells.” “Of course,” he continued, “folks still try very hard to irritate us. They put sand under our skin shells. But all we do is make pearls out of them. The more irritating, the bigger the pearl.”

I guess his message is that we need to take insults with a grain of sand.

I told him that we writers get this a lot. This is especially true when one has the temerity to write about highly charged, religious, political, or emotional subjects. It is common that readers may choose to feel threatened or antagonized. When this happens things can become unpredictable.

Most calm, mature readers won’t react at all. Or they may respond with a rebuttal or legitimate criticism or debate. Sadly, many of those who react are not the calm, mature kind. They may react with hostile remarks, insults, personal attacks, defamation, libel, character assassination and name-calling.

In more extreme situations, a respondent may take steps to silence or censor the writer or initiate legal action to “punish” him or her.

The original writer needs to know the occupational hazards. He (or she) must not be thin-shelledskinned and hypersensitive. For sure, any op-ed writer needs to be prepared for debate and to handle the rebuttals and legitimate criticism. In fact, they also need to be able to handle some of the nasty stuff like those hostile remarks and even insults and name-calling. But we certainly need to draw the line at personal attacks, defamation, libel, and character assassination. In these cases, the respondent is not trying to debate what you wrote, set the record straight, rebuke, or educate you. They are trying to harm you and falsely discredit (i.e., defame) you. More so if they initiate frivolous legal action to censor you and to pick your pocket.

In such cases, it is justified for the initial writer to be the one to initiate legal action to defend his reputation and right of expression.

What comes out from all this is that legal action for the sake of censorship, “cancelling”, silencing and bullying would be considered unjustified. Likewise, legal action because a writer or public figure was insulted by harsh remarks or even slangy name-calling is cowardly and petty, especially if the response was triggered by their own public actions or writing, even more so if the writer tends to use this type of terminology as well. This is like school kids who don’t get along snitching to the teacher or inmates snitching to the prison guard when they get “dissed”.

On the other hand, legal action to protect one’s reputation when it is unjustly tarnished with lies and false information and to protect one’s right to express his/her opinion on a controversial matter would be justified. This is what we need the civil laws of slander, libel, and defamation to do.

In short, the civil laws of Lashon Hara are intended to prevent false defamation and character assassination. As we say: Lashon Hara kills three people. The laws are there to prevent one from presenting a false or distorted picture of another in order to damage him. Facts should not be bent or fabricated to be used as a weapon.

On the flip side, the civil laws of Lashon Hara are not meant to protect people who act out publicly or who present unorthodox or offensive views from being called out or criticized. It is not meant to censor or stifle those who do the calling out or criticizing. It is not meant to become a political weapon wherein anyone with an agenda can push his agenda and get shielded from opposition by the biased courts.

Calling out or criticizing a fanatical player is merely presenting an opposing opinion. Officially, this is protected speech. It needn’t be insulting or abrasive. People should always speak nicely. But, even if it is, this does not constitute civil Lashon Hara or an excuse to claim compensation.

Even for cases of defamation or slander, money should only come as a result of damage, be it tangible or potential, or as an impetus to force compliance when the slander continues and the offender doesn’t want to delete it.

Does all this make sense?

It should and it used to. In the old days, all of this was elementary. And judges judged by the rules. And the basic rules were this:

If it’s true, it is not [actionable] defamation. Period.

The legal definition (at least in the Western world) of defamation, which includes slander and libel, is as follows (see source HERE):

Defamation is a false statement presented as a fact that causes injury or damage to the character of the person it is about.

From this same source:

If you are accused of defamation, slander, or libel, truth is an absolute defense to the allegation. If what you said is true, there is no case. 

This means that it doesn’t matter that the statement(s) are critical, hurtful, or even damaging. If it’s true, then it’s the truth that is doing the damage.

So, in a case of explicit defamation (i.e., not merely slurs), the first and most important factor is whether or not the allegation is entirely true. One cannot argue with the truth or litigate against it.

In the event that it is not entirely true or even entirely false, then it is technically defamation. But now comes a second consideration: is it damaging?

After all, the plaintiff is suing for damages. He needs to claim some monetary value for compensation or there is no reason to litigate. As such, from a perspective of liability, some other factors may come into play:

• Did the offender know it was false? Did he have reason to believe it was true?
  
  
• Did the plaintiff complain to the offender and notify him that his statement is defamatory before taking action? Did he give him an opportunity to retract and edit before taking action?
  
  
• Was the defamation presented in the presence of the subject or behind their back?
  
  
• Was it said or written to a wide audience or to a closed circle?
  
  
• Was it said directly to the plaintiff as a second person dialog (i.e., you are a pervert), or was it in third person (i.e., he is a pervert)? If it was primarily second person dialog, there are grounds to say it isn’t defamation even if it is false (see my previous source).
  
  
• What kind of damage could it cause? How extensive? For how long?

All of the above factors are weighed to limit or impose liability in the case of defamation. But none of it should be necessary if the allegations are true.

Truth is supreme.

As I stated earlier, it is not supposed to matter how insulting or hurtful or even damaging the true allegations are. Defamation is not meant to be defined as offending someone. It is defined as falsely maligning somebody. The courts are not here to protect crybabies from getting their feelings hurt.

All the above is US law. But, this is how it was even here in Israel a generation ago.

How do I know?

Like many people in my generation, we learned about how libel cases work from reading a very controversial and monumental work: Perfidy.

Perfidy was written by Irgun sympathizer Ben Hecht in 1961 and it was banned in Israel by the left-wing government. (We also learned about left-wing censorship from Perfidy.) It started reappearing in the US in a blank jacketed version in the 1970s. That’s when I read it in yeshiva, about 45 years ago.

Perfidy tells the story of the high-profile libel trial that took place in 1954-55. You can get the complete synopsis HERE.

Briefly, in 1954, a religious Jewish Hungarian holocaust survivor, Malkiel Grunwald, put out a leaflet in which he accused a fellow named Rudolf Kastner of collaboration with the Nazis. This Kastner fellow was, at the time, a high-ranking employee of the Jewish agency and a political socialite. The government cronies of Mr. Kastner wanted to teach this Grunwald fellow a lesson and so they sued him for libel.

Big mistake.

As secular as the irreligious left-wing government and judiciary were, the judge in the case, Chaim Halevi, happened to be Orthodox. Regardless, Judge Halevi was concerned about one thing and one thing only – were the allegations in the leaflet true?

Of course, the allegations were offensive to Mr. Kastner. Yes, they were hurtful. Yes, they were critical. And, yes, they were damaging. But were they true or false?

It turned out that for all the details except one, they were true. Totally true. It was true that Mr. Kastner collaborated with Adolf Eichmann, ym”sh. One can argue whether this collaboration was virtuous or monstrous, but there is no arguing that it truly did take place. It was also true that Mr. Kastner testified on behalf of Kurt Becher at the Nuremburg trials. The only thing that Grunwald could not prove was his allegation that Kastner shared some of the material payoff that the Nazis got for the famous “Kastner Transport” that was released. Consequently, Grunwald was mostly acquitted (if my memory serves, he got a small fine for the payoff part).

Once again, the primary issue is whether the defamatory statements are true. This should apply to any defamation that is a narrative. The basic gray area is what we can call slurs, insults or name-calling.

This is because Israeli law is a little different than other Western countries. Other countries define defamation as a “false statement.” Israeli law is different. It defines “Lashon Hara” as a statement that is meant to put down or disgrace another person and/or to make him/her a target for disdain. The implication is that this may hold even if the derogatory language is true.

Only later (Clause 14), does the law state that “I am saying the truth” is a legitimate defense. Though, this somehow falls short of calling it an absolute defense. This gives a lot of subjectivity to the judges to deny the defense.

 

So, back to name-calling.

If you refer to somebody as a “nutcase” (meshuganeh), “idiot”, “sicko”, retard”. Is this defamation? What about calling someone a “pig’ or equating one to a vulgar part of the anatomy or a mother dog (or just plain dog) or the offspring of one? What about calling somebody a “goniff”, “pervert”, “mushchas”, or “mamzer” (in any language)? What about a Nazi?

The courts have debated this issue for decades, and it is still not fully resolved. As such, this depends on no small measure of subjectivity, but also, it depends on the context. What is the context of the name-calling?

Usually, the name-calling is just a put-down, such as calling somebody an “idiot” or “nutcase” or “SOB” or a vulgar part of anatomy. As such, it is clearly not meant to be taken at face value. We can call this “subjective slang”. It’s a way of the offender expressing that he does not think highly of the plaintiff. And it’s his opinion. But he’s really not doing a literal characterization. As Supreme court Judge Dorit Beinish wrote: “It’s not a clinical diagnosis.” Nor is it an analysis on his parentage or zoological status.

These expressions are not indicative of anything, nor do they do any substantial damage. They are just hurtful and insulting. The civil laws of Lashon Hara are not meant to protect people from getting their feelings hurt. So, it really shouldn’t be actionable.

However, sometimes the name calling is relational – i.e., calling somebody a goniff in relation to financial misdeeds, or a “pervert” in relation to sexual misdeeds, or a literal mamzer, or a Nazi. If this is the case, the judgement should go back to whether the basis for the relational epithet is true or not. Is the person really a financial miscreant or a sexual one or emulating the policies of the Nazis? If so, it should not be construed as defamation because it is true. If it is not, then, of course it should.

To summarize, if you call a woman a shoteh, it’s one thing. But if you call her a soteh, it’s quite another.

Although it must be difficult to distinguish what kind of name-calling is subjective slang and what kind is relational, an honest judge will use his head. A biased judge will use her feelings.

The upshot of all this is that the civil laws of defamation – the Chok Lashon Hara – are meant to protect people from damage. They are not meant to be political tools to allow a court to take sides as to which opinions are valid – in their eyes - and which are not, and to silence people who speak out on controversial matters.

So, I find it very disturbing to see just that.

All this came to play in the defamation case that I was involved with, but I am not going to discuss it here. Hopefully, I will do so in a future post. I was assuming and hoping that it was only me that had the misfortune to fall into the clutches of a judge with a personal agenda. But once I see it happening in other cases where religious ideology doesn’t play a part, it tells me we are living in a different generation than Malkiel Grunwald.

What I really want to discuss in the case of Ron vs. Versano.

It seems like our kindergarten jingle of “Sticks and stones may break my bones, but names can never hurt me” never graduates from elementary school. And by the time one reaches Law School, it is totally forgotten. Kids don’t get insulted, but grownups do.

It’s a pity.

Stay tuned for Ron vs. Versano in Part 2.