Monday, February 24, 2003

Book Burning and Other Publishing Sins

Books should not be banned or burned, although some certainly deserve to be and although many have sinned against the environment by causing trees to be cut down for no useful purpose. The argument against book burning is invariably couched in constitutional rather than utilitarian terms. Of the rights guaranteed by the First Amendment, the most protected and therefore the one nearest to being an absolute is freedom of the press, which in practical terms means that there cannot be prior censorship of publications.

A published book that is banned is a book that is getting tons of free advertisement. As forbidden fruit, it is likely to attract more interest and readers than it would get if it were left alone. Likely, much of this increased attention comes from the inside of the circle that is most affected by the ban. Simply put, it’s poor strategy to label any writing as treife.

Contrary to the impression that some have, “One People, Two Worlds” – the dialogue between two Rabbis, one Reform and the other Orthodox – was not banned. It was, however, severely criticized by rabbinical leaders, as it deserved to be. It has some standing as a gimmick of the sort that has become popular in publishing. But as a serious discussion of Judaism and contemporary Jewish life, it is entirely bogus because the Reform movement and the Orthodox do not constitute one people. Individual Reform Jews do, but not all that many; the movement does not.

To maintain otherwise is to be in denial, to cling to a convenient fiction and to believe that intermarriage, patrilineality, snap conversions, homosexual unions and the wholesale abandonment of tradition, observance and belief have not exacted a terrible toll and destroyed the concept of one-ness.

The protected status of publishing extends beyond what the constitution directly provides. Those who control what is printed or conveyed by other media have the power to choose what the public reads and sees and what it does not read and see. We regard censorship as wrongful, while, in fact, many editorial decisions border on censorship, as when materials submitted for publication or broadcasting are edited and their meaning is distorted, not because of style or space considerations but because of their content.

I recognize, of course, that editorial decisions must take into account relevancy, the public interest in what is being submitted and the constant competition for space in the print media and for time in the broadcast media. There obviously is no obligation to publish all letters that are sent in or all articles that are drafted, even by writers who have been asked to submit their material. Hidden censorship – it’s hidden because readers or viewers are blind to what has transpired – occurs when the decision not to publish or broadcast is predicated on ideology or personal likes. A good example of this form of censorship and also of mega-hypocrisy was provided recently by the New York Times when it suppressed articles submitted by regular columnists that deviated from the newspaper’s attitude toward the Masters Golf Club’s refusal to admit women.

Since editors exercise discretion by deciding what they will not publish, they are directly accountable for what they do publish, without cowardly hiding behind the First Amendment. There is no constitutional obligation to publish or air material that is tawdry or cruel or rumors that are dressed up as news. The expanding media tendency to indulge in sensationalism and half-truths is explained – it certainly cannot be justified – as giving readers and viewers what they want to read or see and hear. When I taught constitutional law, there was no obligation for the media to pander. I doubt that this has changed.

Even the feeble explanation that economic pressures require the media to lower their standards cannot be employed when hateful material is published. Few of us would defend on First Amendment grounds a newspaper that publishes anti-Semitic or racist writing.

When serious wrongs are committed by the media, they are scarcely counteracted by letters to the editor or discrete correction notices and certainly not by litigation. Little comfort can be taken from Justice Holmes’ famous statement about a marketplace of ideas. There is no such marketplace and the metaphor is blind to social and psychological reality. Far more likely, a Gresham’s law is at work and the bad that is communicated by the media drives out the good.

Some publishing wrongs border on the bizarre. I am shocked by last week’s back-page column in this newspaper by a writer for The New Republic who extolled in rhapsodic language the autobiographical sketch of a young woman who converted from Judaism to Christianity. Whatever the merits of the work, we need not be told in American Jewry’s leading newspaper - and this is a community newspaper – that “there is something electrifying” about the book and that it is “profoundly moving, profoundly spiritually nourishing.”

At a time when our community is trying to resist the well-financed activities of Jews for Jesus and other missionary activity aimed at Jews, we do not need to read the following in the Jewish Week: “While her move from Judaism to Christianity might be far from what you might wish for your daughter, I believe that Winner’s ferocity of spirit, scrupulous self-consciousness and her devotional faith – compel a different response.”

I do not intend these words as criticism of the article; they are meant to protest against the decision to publish it.

Newspapers have power and power always corrupts, to one extent or another. Since newspapers have nearly absolute power, Lord Acton’s famous statement certainly applies to them. We read a great deal about media responsibility. Strangely, the more we read or hear about the subject, the less responsibility there is.

Tuesday, February 18, 2003

Our Religious Courts

Like Ole Man River, the Lanner case just keeps on rolling, begetting new progeny of contentiousness and accusation. We now are at the beth din stage, the revisiting of a proceeding conducted thirteen years ago by three deservedly respected rabbinical figures at Yeshiva University. There is disagreement over what transpired then, although it is now generally agreed that there is a need to offer an apology to the families – children and parents – who were hurt by Lanner. I expect that this will happen quite soon.

I doubt that this will bring an end to the finger-pointing, if only because Lanner is appealing his New Jersey conviction and there are those who have a stake in prolonging the story. We should be mindful of the point I made weeks ago that despite unprecedented attention to clerical abuse, especially in the Catholic church, there have been no additional charges of abuse in our community.

There is also an opportunity to reflect on the role of beth dins or religious courts. They are important institutions in our religious life, but even many Orthodox Jews do not understand how they operate or the limitations on their authority.

Jerome Frank, once a noted legal philosopher and jurist who is no longer noted, wrote two generations ago that except for sickness or death, he most feared being a party to a legal proceeding. Religious Jews who are subject to the jurisdiction of beth dins have said much the same thing about our religious courts. In my three score and nearly ten years of residency on this planet, my direct involvement in either civil or religious tribunals has been thankfully meager, despite an active life that includes much involvement with courts and lawyers. Limited though my experience has been, I do not relish the thought of being a party in any kind of trial.

The unease that people feel about civil cases or beth dins is commonly attributed to the feeling that judges and courts are unreliable, even untrustworthy, and that they are weak instrumentalities for the achievement of justice. It’s also said that there is an abundance of corruption and incompetence and chapter and verse are offered in support of such accusations.

There are, for sure, corrupt judges, especially in lower level civil courts, although at times the buying of judicial votes can reach high up into the judiciary. If the notion of corruption is extended to include situations when a judge is “reached” – and not merely financially – by party officials or a well-connected lawyer or in some other fashion, it’s certain that civil courts are awash in corruption. In Brooklyn, to provide one fetid illustration, the entire court system is a stinkpot.

There are instances of corrupt dayanim or religious court judges. But I believe that the situation is far better in these courts than it is in civil courts. Competency is another matter and it is made more problematic for beth dins because our religious court system is largely ad hoc and even chaotic. In an important sense, a beth din is simply the coming together of three rabbis for the purpose of deciding a particular case, an arrangement that smacks too much of pot luck.

In an interesting way, beth dins acknowledge the tenuous nature of their fact-finding when they require litigants to sign a document acknowledging that the ruling to be issued may be a compromise that is close to what religious law obligates. Although they operate under the authority of state arbitration laws, which means that their decisions are binding unless there is credible evidence that the dayanim acted improperly, it is appropriate for beth dins to acknowledge their limitations. Despite strong communal and religious mores that proscribe going to civil courts to resolve disputes among religious Jews, it’s no secret that many such Jews avoid beth dins and prefer ordinary civil proceedings. While beth dins can issue statements saying that persons who have so acted have violated halacha or religious law, only rarely do such pronouncements have an impact.

When parties agree to go to a beth din and settle on which one to use, the religious judges have truncated authority. As a rule, they cannot compel the presentation of evidence or punish those who refuse to testify or witnesses who lie. Their rulings are based on what they hear and read, which heightens the prospect for error. I believe that the honorable dayanim who heard the Lanner case probably erred because they did not have all of the evidence and some of what they heard may have been tainted.

Ordinarily – and this means nearly always – beth din opinions are terse, certainly far briefer than what secular judges often produce. This is one reason why beth din proceedings are far quicker and far less expensive than civil cases where extensive delay is par for the course because of crowded court calendars and legal maneuverings. Justice delayed is often justice denied and so on this ground alone, beth dins should be preferred.

Apart from their relative brevity, beth din decisions come without dissenting opinions, a feature that litigants who are unhappy over the outcome interpret as proof that they haven’t received a fair hearing. Most beth dins consist of three dayanim and while disagreement is not as widespread as it is in appellate American courts, it does occur. In line with the goal of arriving at a consensus that may reflect a compromise, disagreements are usually resolved by the dayanim. When they are not, so that the decision is in effect 2-1, there is no indication of dissent. Dissenting opinions, it is believed, weaken respect for beth dins.

A similar attitude works against post-decision explanations or apologies, even at times when new evidence casts serious doubt on the ruling. To have dayanim explain or clarify or apologize is viewed as cheapening the beth din process. The Lanner case is extraordinary and therefore it justifies departure from the usual procedure.

Monday, February 10, 2003

Children at Work

It’s stunning to follow newspaper coverage of Orthodox Jews, the ten percent of American Jewry who get ten times the coverage of Reform and Conservative Jews combined, much of it unflattering. In this newspaper, we learn regularly about trivial happenings in Brooklyn shuls, but we don’t read that there are data showing that the Conservative movement is losing members at an accelerating rate or that membership figures for the Reform are largely fantasy or that the Federation world is going downhill fast. When one of the Orthodox is indicted or convicted, we are likely to read about it, but it’s apparently not relevant that the chairman of the International Board of Governors of the Jewish Agency is awaiting trial in federal court on charges involving hundreds of millions of dollars.

Just when I thought that reportage could not sink lower, along came last week’s front page story – yes, front page! – on sheitelmachers and domestic abuse among the Orthodox. It was at once sick and silly. I will limit my criticism to a single point, it being that when a story describes in considerable detail a person’s divorce battle as this one did, a minimum respect for journalistic and ethical standards requires that it not be one-sided.

What I or others say about the phenomenon of yenta journalism will not bring about improvement and there is some prospect that criticism will result in further deprecations as those who wield the pen will use it as a sword to inflict gratuitous pain. There is growing anger, especially among modern and centrist Orthodox, over how this community is being covered in this important newspaper.

Is it possible to get the message across that yenta journalism is not journalism as it should be practiced, that like other groups there are Orthodox who do silly things and others who do wrongful things and yet there is a far larger picture that is being lost among the reams of gossip that now serve as a surrogate for news reporting? Can it be understood that gratuitous pain is sinful and a form of abuse?

Perhaps I am too harsh. Yentering is not solitaire. It’s a relationship among people trafficking in tidbits and gossip. Yenta journalists rely on being fed and when the feeders (and those being hurt) are themselves Orthodox, the pain is self-inflicted. If a silly person who happens to be Orthodox gives a reporter a silly story on a silver platter – which I think usually is the case – can we blame the reporter for running with it?

One benign example of this tendency was on display several weeks ago in a New York Times article on the alleged reaction of Orthodox Jews to the kosher certification status of Stella D’Oro cookies, especially the high calorie chocolate fudge. We read that initially there was great despair among the Orthodox who feared that the company would no longer seek certification and then there was joy when the news came that the kosher status would be maintained. This bit of infantilism did not come out of thin air. In one way or another it was generated by persons within the community, presumably with a yen for chocolate fudges.

The sheitelmacher article is far more serious business. Whatever its precise origin, it essentially arose out of an environment in parts of Orthodoxy that gives priority to that which is tendentious and foolish. In fact, Borough Park has just been blessed with a conference on the role of sheitel makers in family issues, held in the “Grand Ballroom” of a wig emporium and sponsored by a Task Force that proclaims, “it has come to our attention that many women feel comfortable talking to sheitel machers about personal family crisis issues.”

Alas, women – Orthodox and others – who are not bewigged are being deprived of a vital communal resource that may protect them against their husbands and others. The Task Force should consider a special conference for milliners.

Domestic and other forms of abuse is dangerous and must not be ignored or explained away. The current obsession with abuse is also dangerous, if only because it heightens the risk that innocent people will be wrongfully accused. The involvement of wigmakers sounds like a sick joke. Worse yet, harm can be caused in homes where an ordinary, but certainly regrettable, marital dispute will receive undeserved attention and will thereby be transformed into a serious incident of domestic abuse.

Why stop with these women? Why not train the mikveh ladies and also friends, neighbors, relatives, classmates, personnel at fitness clubs and swimming pools, store clerks and others to be on the lookout for signs of abuse and to become part of an ever-vigilant anti-abuse network?

The sad thing about the emerging scenario is that the Orthodox are more alert to abuse issues than other Jews. In some perverse fashion, their alertness is being translated into evidence of a greater incidence of domestic abuse in Orthodox homes, primarily because the media are invited to get into the act by organizations and individuals with a stake in abuse issues.

They can gain public funding, which has become more abundant post-September 11 as grants are being made to an array of agencies that specialize in psycho-babble. This issue deserves public scrutiny because as workers are being laid off and there are cutbacks everywhere in public services, huge sums are available for sham exercises allegedly aimed at addressing all kinds of emotional problems attributable to September 11.

The Orthodox – and notably the dynamic yeshiva-world sector – needs to show greater restraint in dealing with the media and government, else there will certainly be a continuing flow of self-inflicted wounds. Prospects for this are not bright because there is a paucity of leadership and far too little discipline among these Orthodox. Contrary to the familiar view that sees these religious Jews as being led from the top by respected rabbinical figures, the reality is one of near anarchy. A price is being paid, although that scarcely seems to be a deterrent.

Monday, February 03, 2003

A Change for the Worse

Shinui is not Israel’s first anti-religious party. That dishonor goes to Labor which for the better part of Israel’s existence dominated the country’s politics and nearly from the beginning of the state waged war against religion in such vital areas as education and absorption. While it weaned North African immigrants away from tradition and relegated them to second-class citizenship, Labor poured huge sums into kibbutzim, those oases of Ashkenazi privilege that masquerade as harsh outposts of sacrifice.

Then there was Meretz, avowedly ultra-secularist and more openly hostile than Labor to religion. In short, there has always been a hard core of Israeli Jews – now estimated at 20% - whose political agenda gives priority to governmental actions that are harmful to traditional Judaism. Interestingly, the ultra-secularists have never explained how absent any religious and historical claim, Jews have a right to the land. Some believe, in fact, that the Jewish claim is weak, even bogus.

Now we have Shinui led by Tommy Lapid – ten times cruder and one-hundred pounds heavier than Yossi Sarid – capitalizing on the decline of Labor and Meretz and certainly on public animosity toward Orthodox, especially charedi, Israelis. Since Shinui will have one-eighth or fifteen of the seats in the next Knesset, in this early stage of post-election maneuvering it is hard to see how it will not be a major player in the new government. Religious parties and their constituencies are in for tougher times.

Apart from the stark bigotry of Lapid’s message – he would discourage Orthodox Jews from North America making aliyah – there is an important distinction between the old Labor party and Shinui, for Labor acknowledged the place of religion in the Jewish state and David Ben-Gurion entered into the Status Quo Agreement with the religious parties which provided for Israel having a religious public persona. Shinui would tear down whatever remains of the Status Quo; in fact, as a consequence of legal rulings, legislation and social practice not much remains.

Whatever governmental coalition emerges, the election results and, more fundamentally, the winds of public opinion ought to result in serious reflection among Israel’s religious leaders and parties, an exercise that they have not demonstrated being adept at. There is a public relations problem and while religious leaders must not follow either election returns or opinion polls, there is a difference between paying attention to public opinion and yielding to it. Attention must be paid, if only because reaching out to marginally observant Jews is high up on the agenda of Orthodox activity in Israel and its effectiveness depends largely on how such Jews look at religious life and leaders.

The point is made in a surprising article by Moshe Schapiro in the post-election issue of the U.S. edition of Yated Ne’eman, the main charedi newspaper. He writes that the election results convey the message “that our level of unpopularity among the populace at large has reached new heights.”

There is little that the Orthodox can do to win over Meretz and Shinui adherents, the ultra-secularists whom I regard as a clear and present danger because Israel cannot survive without fidelity to what has always maintained us. There is, however, much that turns off Israelis who are not hostile to religion, as for example, the constant re-inforcement of the perception that religious parties are primarily interested in getting more shekels. While the characterization is unfair, it is a dynamic element in Israeli life.

It is unfair because outsiders and especially those who are lower socio-economically tend to conduct their political transactions out in the open, thereby always seeming to be making monetary and other demands, while those who are in power and privileged conduct their raids on the Treasury with stealth and leave few fingerprints.

It is unfair because the funds allocated to religious causes provide important services. Shas – it receives by far the lion’s share of such funding – illustrates the point. It has established a network of schools, after-school programs, youth groups, summer camps and other services aimed at improving the lot of disadvantaged Sephardim. That explains why Shas did better than expected in the election. While the media regularly portray it as an ultra-Orthodox party, its rank and file are overwhelmingly traditional but not especially observant Israelis who have seen how Shas has improved their lot.

Even on the hot-button issue of payments to yeshiva students, unless we are willing to ignore the value of Torah study, it’s hard to understand why they should not be entitled to the same treatment accorded to university students. Incidentally, yeshivas contribute importantly to Israel’s economy because they receive outside contributions, there are fund transfers from overseas to students in Israeli yeshivas and parents of foreign students visit and spend money in Israel. This is a subject that merits analysis.

But for all of the gratuitous hostility aimed at the Orthodox and especially the charedim, there is much self-harm to the religious cause in the handling of the military service issue. Schapiro rightly asks whether charedim “show enough sensitivity to the tens of thousands of parents out there who do send their children to the army for three long years?”

The answer is that they do not and it was demonstrated not long ago when the charedi camp rejected the modest proposal that yeshiva students do public service during their intercessions, rather than go on vacations while other Israelis – many of them observant – look on in disgust. There was no excuse for this super-insensitivity. Was it necessary to be so provocative, to further alienate Israelis and give aid and comfort to Shinui? Charedim gave Tommy Lapid a gift on a silver platter and he took full advantage.

I believe with full faith that Torah study and yeshivas are essential to Israel’s security, that without the devotion and sacrifice of yeshiva students, Israel would be endangered. This is all the more reason why the yeshiva world must not endanger itself through gratuitous intransigence and a perception of insensitivity.