On this daf, we continue dealing with a fascinating מחלוקת (disagreement) between Rabbi Akiva and Rabbi Yehuda ben Beseira, regarding the identity of the מקושש (the person found guilty of gathering wood on Shabbos.)

Every cheider kid will tell you that there is no question here- it was obviously צלפחד, the man whose daughters were later granted his estate.

However, nowhere in the text of the Torah is his identity mentioned, and it is Rabbi Akiva, who derives it from a גזירה שוה (an orally transmitted tradition hinted at by use of similar language in the text.)

This identification of the מקושש as צלפחד seemed so radical to Rabbi Yehuda ben Beseira, that he rebuked Rabbi Akiva with the argument that if he was wrong, he was guilty of false accusations, and even if he was right, he was guilty of revealing information that the Torah had chosen not to reveal!

The Gemara questions how Rabbi Yehuda could take issue with Rabbi Akiva, given that a גזירה שוה is a legitimate form of interpreting the Torah, and in fact, anything derived from one is considered as if it was actually written in the Torah explicitly!

The Gemara responds that Rabbi Yehuda ben Baseira had not received that גזירה שוה in his oral tradition from his Rabbi.

The nature of דרשות in general, and a גזירה שוה in particular, could make an essential study in its own right, perhaps in a later post, but for today, I wish to focus on the 2 things that Rabbi Yehuda ben Beteira accused (irony noted) Rabbi Akiva of doing, i.e.

i. Possibly falsely accusing צלפחד of something he never did

ii. Possibly revealing the identity of the מקושש when the Torah had chosen to cover it up.

The Gemara proceeds to record a similar debate, where Rabbi Akiva claims that Aharon was punished the same as Miriam for speaking lashon haRah about Moshe, and became a מצורע (lepor) too.

Once again, Rabbi Yehuda rebukes him for either spreading falsehood about the righteous Aharon or revealing the fact that he was equally implicated and punished, when for some reason the Torah had chosen to cover it up.

The Gemara later on brings Reish Lakish who claims that Moshe Rabbeinu himself was afflicted with צרעת on his hand because he had falsely suspected the Jewish people of not being open to listening to his message- He learns from this a general rule that anyone who falsely suspects an innocent person will suffer physical afflictions on his body.

The Navi Yeshayahu too, appears to have fallen prey to this sin during his initiation as a Navi (Yeshayahu 6/5), when he accuses the nation of being a nation with impure lips- We see there as well that the angel strikes him on his mouth as a punishment.

Those who have learnt Brachos might also recall the famous story with Chana and Eli (Brachos 31b) where he accused her falsely of being drunk, and she responded that he needed to bless her in compensation.

There too, we see reference to the biblical case of a Sotah, who if falsely accused by her husband of adultery, is blessed with having children (Bamidbar 5/12.)

It is important to note that Rabbi Akiva does not in any way minimize the severity of false accusations, or revealing what the Torah covered up- he simply has a received oral tradition that his facts were correct, and thus also believed the Torah had never covered them up.

While anyone who has ever been falsely accused of anything can testify to what a crushing experience it is, It is also important to note that Rabbi Yehuda ben Beteira rebuked Rabbi Akiva for this in two cases where the relevant person was already dead and would not suffer the results of the accusation, at least as we livings humans do (what the dead do or don’t feel is another subject- you might recall the discussion on this in מי שמתו)

It seems that this would thus apply even more so to falsely accusing someone who is still alive (though one could also argue to the contrary, the living are able to defend their own reputation, but the dead cannot.)

Yet surely there is also a time when one needs to take the risk of falsely accusing someone?

The case of a Sotah is a clear example of this- the accusation is allowed, and the woman subjected to a very unpleasant procedure, and if it is false, she is compensated.

If there is compelling evidence that someone is a dishonest in business, even if it cannot yet be proven in court, is it not necessary to take the risk of publicizing this in order to protect others, and later compensate him if the proof is found wanting?

If there is compelling evidence that someone is a child molestor, is it not necessary to first warn people to keep their children away from, and later compensate him if the evidence is found to be lacking?

As to the second rebuke of Rabbi ben Beteira, is he really discouraging freedom of reporting? Does he really suggest that terrible travesties should not be publicized by those who know about him, because the authorities that be have decided to cover them up?

This question is extremely complex and lies at the heart of the way Jewish leaders need to deal with such things. It is certainly not solvable in the few lines that make up this essay, and requires, amongst much else, a thorough analysis of the idea of חושש מבעי (although one may not believe lashon haRah, one may sometimes take it into account in order to prevent harm- see Niddah 61a and Chafetz Chaim/Lashon haRah 6.)

However, it seems clear that one must very carefully weigh the damage done to the victim of possible false accusations against the damage that could be done to innocent people if the charges are true.

Sages like Rabbi Akiva and Rabbi Yehuda ben Beteira knew how to make these calls. In the case of the Sotah, we had the miraculous bitter waters to make the call for us- for us, it is much harder.

Similarly, there are times that it is constructive to publicize the confirmed sins of people, particularly great people, for the public good- Yet there are also times that such revelations are not constructive.

The Torah is certainly the supreme authority over such decisions and can hardly be accused of covering up the sins of great people, as any biblical student can attest.

During the times that the Torah does choose not to publicize something, it is not for us to reveal it, and we must assume that doing so is not sufficiently constructive to justify it.

This fits in well with the fact that lashon haRah is forbidden even if it true unless there is justifiable benefit to spreading it.

Our great prophets and sages struggled with these choices and sometimes even they failed.

How much more so must those of us responsible for such decisions in our time, relate to them with great trepidation and after coming to a rational halacha based decision, daven hard שלא תבוא תקלה על ידי (that no damage should be caused by my decision.)