Friday, June 19, 2009

There Needs to Be An Apology

Although the title would fit, I have resisted the urge to call this column, “McCarthyism at the Jewish Week.” Week after week and for years, this newspaper has pummeled the Orthodox, the clear intent being to depict this ten percent of American Jewry as engulfed in wrongdoing. The low point was reached last week in an article that purports to deal with what Rabbi David Cohen, a notable scholar and a truly nice person, said more than two years ago on a Shabbos in a Bergenfield shul. The article is an exercise in character assassination.

Guilt by association is a familiar McCarthyistic technique and it is abundantly on display in this article. The headline is “Ohel’s Halachic Advisor: OK to Cheat on Taxes?” I will just note the “when did you stop beating your wife?” question mark at the end. More disturbingly, how did Ohel get into the act? What does Ohel have to do with the talk that Rabbi Cohen gave in February 2007? The strong suggestion is that this newspaper is determined to discredit Ohel, a childcare agency with an exemplary record, specifically including on the hot-button issue of sexual abuse.

Ohel wasn’t the only victim of the nasty embrace of guilt by association. Somehow, the Rabbinical Council of America was also thrust into the same putrid journalistic cauldron. I doubt that we will fully learn by what alleged standard this article was written and published.

Another McCarthyistic staple is the reliance on anonymous sources. No name is attached to the article and it is identified as a staff report; it appears from the sources cited that considerable resources went into the effort to discredit Rabbi Cohen and, by association, Ohel and the Rabbinical Council. There is at least a minyan of anonymous sources which aren’t identified, allegedly because they are fearful of retribution. This claim itself is designed to make the Orthodox look bad. The Orthodox are routinely taken to task, including in the Jewish Week, and the critics are mentioned. What retribution would ensue if this newspaper had identified its sources? When charges are made, the absence of attribution undermines credibility.

McCarthyism is serious business and we should all be concerned about the disgraceful article that was published last week.

The larger issue concerns the story itself, if there is a story. There was no activity by Rabbi Cohen to trigger an article about what he may have said twenty-eight months ago, no new position or publication or pronouncement. If there was something to report, the time was shortly after Rabbi Cohen gave his Shabbos talk. There obviously is no tape of the speech which concerned the obligation of religious Jews to obey civil law. During the question period he was asked about tax evasion, itself an ethical minefield that I shall discuss shortly. Allegedly, he did not come out against tax cheating, although he said that wherever there is the prospect of Chilul Hashem or desecration of G-D’s name, it is forbidden to cheat.

I do not know what Rabbi Cohen said. I know that tax compliance is a complex subject made more complex by the arcane nature of the tax code and also by powerful social realities that affect the extent of compliance and how the government deals with non-compliance. The words “evasion” and “cheat” carry a punch, yet it is mistaken to believe that the issue is simply one of compliance or non-compliance. In a notable tax case opinion two-thirds of a century ago, Judge Learned Hand of the U.S. Court of Appeals for the Second Circuit made the point that it is appropriate for taxpayers to take advantage when they calculate their liability.

I imagine that there are waiters, cab drivers and all those who rely on tips for income who report every last cent, but they are a small minority. I imagine that there are shopkeepers who report all their income, but they aren’t representative of their field. I imagine that there are others who deal with cash who faithfully record every transaction and give the government every last cent it may be entitled to, but they too aren’t representative. I imagine that there are those who have fringe benefits that are taxable who make certain to include the benefits as income, but they are no more than a small minority. I imagine that there are people in newspaper publishing who have barter arrangements providing for trips and other goodies in exchange for advertising who make certain to report this as income, but they too are not representative.

The point again is that social realities are a critical component of the tax system and the terms “evasion” and “cheat” may evoke a reaction, but they do not conform to the reality that the IRS and the Justice Department do not prosecute people for not paying all of the taxes that may be due, except in the most egregious situations. Most people are risk-averse, meaning that if there is the prospect that government will find out, there is compliance. In speaking of Chilul Hashem, I believe that Rabbi Cohen employed a higher standard.

However we look at tax issues, there is no justification for a holier than thou attitude and there was no justification for a nasty, mean-spirited article that largely fabricated a story. There is much to speculate about motivation. The article violated journalistic, ethical and religious standards and needs to be repudiated. It was McCarthyistic, which invites a paraphrase of Joseph Welch’s immortal words to the disgraced senator more than a half-century ago, “at long last do you have no decency?”

The Jewish Week should apologize to Rabbi Cohen and his family and, as importantly, to its readers.