[Avodah] Halachic Analysis: The Hillary Photo Controversy

[Micha Berger]

I fear there are many of you I still didn't convince that geneivas
daas has nothing to do with whether the person being fooled is harmed
by the misinformation.

So, here is something from R' Yehoshua Pfeffer's discussion
of the permissability of hiring a performer to do a magic show
<http://www.dinonline.org/2010/06/24/a-halachic-glance-at-magic>:

    It is forbidden to steal the heart of creatures, even the heart of
    a non-Jew. How is this so? One may not sell non-kosher meat to a
    non-Jew, under the pretense that the meat is kosher... one may not
    plead insistently with one's fellow that he should dine with him,
    in the knowledge that he will not do so... one may not open numerous
    barrels in someone's presence, feigning that he is opening them in his
    honor, while in fact he must open them for trading purposes. This, and
    anything similar -- even a single word of deception -- is forbidden;
    rather, one's tongue should be true, one's spirit sincere, and one's
    heart pure of all corruption and crookedness.

    According to certain authorities, the prohibition of deception is
    a Torah transgression, derived from the instruction not to steal,
    which includes all forms of theft (even "theft of the heart"). Thus
    Semag (Negative Commandment 155) and Shulchan Aruch Harav (Onaah 11)
    note that the prohibition is a Torah law, whereas Semak (262) and Bach
    (Choshen Mishpat 228) write that the prohibition is of rabbinic nature
    (Rambam makes no mention of the prohibition in his Sefer Ha-Mitzvos).

    One way or another, Chazal note the special severity of geneivas
    daas. Tosefta (Bava Kama 7:3), as cited by Ritva and other rishonim,
    states that of several forms of theft, geneivas daas is the most
    severe. Ordinary theft relates to the most external part of man:
    his possessions; geneivas daas strikes at the innermost layer of
    the human heart.

    Not Every False Impression is Deception

    However, not every case of incorrect representation is considered
    deception. The Gemara (Eiruvin 100b) teaches that a man should
    appease his wife by telling her of his intention to buy her an
    exquisite garment, thereby expressing her stature as deserving of
    such grandeur. Ultimately, however, he reveals the truth: he lacks the
    means to purchase the gift. The original declaration is not considered
    deception because of the intention: not to deceive, but to flatter.

    A similar application is found in one of the halachos referred to
    in the above citation from Rambam, which teaches that one may not
    repetitively invite another to one's house in the full knowledge
    that he will not come. The essence of this prohibition is that the
    inviter gives a false impression of a burning desire to serve and
    wait upon the invitee. Through creating this impression, the inviter
    hopes to extract future favors from the other.

    If, however, one invites another to be one's guest, once again in the
    full knowledge that he won't accept, but for the genuine purpose of
    honoring the invitee, no prohibition is transgressed. On the contrary,
    it is considered good manners to offer a guest a cup of tea or a
    glass of water even when one is entirely sure that he will decline
    the offer. The prohibition of geneivas daas is a matter of deception;
    when the intent is purely positive, there is no prohibition.
    ...

    Differing Views of Different Generations

    According to Bach, deceptive magic tricks thus transgress a full Torah
    prohibition of me'onen, ASIDE FROM THE TRANSGRESSION OF GENEIVAS DAAS,
    DECEPTION [emphasis mine -mb], mentioned by Rambam. Shach (Yoreh De'oh
    179:17) cites the ruling of Bach, and concurs, as does Chayei Adam
    (89:6) and Mishnas Chachamim (47; see also Pischei Teshuvah Yoreh
    De'oh 179:7 and Darkei Teshuvah 37).

    Chayei Adam adds that one who orders and pays for such a magician
    would thus transgress the prohibition of placing a stumbling block in
    front of the blind. He further states that it is likewise prohibited
    to view a magic show in which such tricks are presented.

    Harav Moshe Feinstein zt"l, however, finds this ruling most difficult
    to accept (Iggros Moshe, Yoreh De'oh 4:13). It is implausible,
    he reasons, that mere sleight of hand should involve a Torah
    prohibition. Surely, he continues, we find that individuals gifted
    with wondrous powers are permitted to make use of them...

    Being wary of disputing those who prohibit it, Iggros Moshe thus
    concludes that if he would be asked, he would attempt to shy away
    from answering the question; were he unsuccessful, he would permit
    the performance of "magic tricks," provided the magician declares that
    his acts are perfectly natural, and involve no supernatural phenomena.

    In a similar vein, Harav Betzalel Stern (Betzel Hachochmah 4:13)
    cites several Rishonim who imply that the prohibition of deception
    of the eye applies solely to the use of supernatural powers such
    as witchcraft. Based on a statement of Chinuch (mitzvah 250), the
    Kloisenberger Rebbe (Divrei Yatziv, Yoreh De'oh 57) also writes (in
    a speculative rather than Halachic manner) that one may be lenient
    concerning the matter, provided the magician makes it clear that no
    supernatural forces are involved.

    Harav Moshe Sternbuch (Teshuvos Ve'hanhagos 1:655) also mentions,
    in the name of the Chazon Ish, that NO PROHIBITION APPLIES WHEN THE
    AUDIENCE IS AWARE THAT IT IS ONLY A TRICK [emaphasis mine -mi].

    True Deception?

    Based on the above introduction concerning the prohibition of geneivas
    daas, we might explain the different opinions based on changes in
    the general attitude of people towards magic tricks.

    Whereas in medieval times supernatural forces were widely believed
    in, today (certainly in the Western world) they are largely
    dismissed. While in generations past the first impression of an
    audience would be to see a magic trick as a supernatural phenomenon,
    today's audience will be largely unmoved, thinking more of how the
    trick was done than about supernatural powers.
    ...

If the audience are children who won't rule out actual magic, or ancients
for whom actual magic was a real possibility, a magic show would be
geneivas daas.

And a magic show is no more relevant to the audience's life than who is
in a newspaper photo.

:-)BBii!
-Micha

-- 
Micha Berger             A cheerful disposition is an inestimable treasure.
micha at aishdas.org        It preserves health, promotes convalescence,
http://www.aishdas.org   and helps us cope with adversity.
Fax: (270) 514-1507         - R' SR Hirsch, "From the Wisdom of Mishlei"