Justice Scalia, Talmudic Scholars On Privacy, Free Speech

(lubavitch.com) Gossip columns may plaster the internet and paper newsstands. But is this commerce of secrets permissible according to Jewish or American tradition?

“Jewish tradition is duty-oriented,” explains Rabbi Michael Broyde, “the holder of data has no right to use it indiscriminately; it is his obligation to apply it responsibly.” Broyde is a law professor at Emory University and a member of Beth Din of America, the nation’s largest Jewish court. “American common law,” he contrasts, “protects freedom of speech,” and otherwise assumes a person’s inalienable rights. According to this expert of both legal systems, Jewish law and the American legal tradition “are at two completely different places.”

Not so, opined the Honorable Antonin Scalia, who believes that the American system is based closely on Christian tradition which likewise regards gossip as odious and sinful.

This friendly debate occurred not on the floor of the Supreme Court, where Justice Scalia spends much of his time, but at the offices of Weil Gotshal & Manges LLP abutting Central Park. Over 300 lawyers, judges, and professionals gathered to hear the Justice and a dozen other legal experts discuss the right to privacy and individual liberties. The daylong seminar, sponsored by the Institute of American and Talmudic law, featured a smorgasbord of legal offerings based on the traditional Jewish perspective and that of the American legal system. 

IAT Law, under the auspices of Chabad of Midtown, aims to, “bring the ethics and morals of the Talmud to the masses,” explains director, Rabbi Noach Heber. Since its 2001 inception, the Institute has hosted over 1,000 attorneys at its monthly seminars and annual conferences. Lawyers must complete a certain amount of credit hours (between 24 and 32 in New York state) in order to maintain licensure. Rabbi Joshua Metzger, Chabad of Midtown’s executive director, hopes that lawyers practicing the world’s youngest legal system will learn from the oldest, the 3,300 year old Jewish tradition.  

“The incredible dimension that IAT offers, as opposed to other institutions where I have completed CLE credits, is that it makes an effort to analyze how Talmudic and secular law agree and differ,” states Bernard Maister, a New York city attorney who has attended several of IATL’s programs. “The organization has offered so many varied courses that I have come to realize how Talmudic law truly covers every aspect of human life.”

Vikki Ziegler, a prominent divorce attorney and regular contributor to FOX, CNN, and MSNBC, agrees that, “it is important for lawyers to gain a rudimentary understanding of how the Jewish legal system compares to American jurisprudence.” In her own divorce practice, Zeigler “has an arsenal of rabbis to consult” and assists Jewish clients with obtaining Jewish divorces along with their civil proceedings.

Zeigler has been both a lecturer and student at IAT Law since 2006. “Obtaining CLE credits through the IATL is a cerebral, thought-provoking experience,” she states. “Today we discussed various aspects of the Fourth Amendment. I haven’t thought about the Fourth Amendment since law school over a decade ago.”

The Fourth Amendment, guaranteeing “the right of the people to be secure in their persons, houses, papers, and effects,” served as a springboard to the day’s discussions about privacy from Talmudic times to today’s era of Web 2.0.

It was certainly a hot topic at the main session featuring Justice Scalia, Broyde, Talmudic expert Rabbi Shlomo Yaffe, dean of the Institute of American and Talmudic Law, and Jules Polonetsky, director of the Future of Privacy Forum. Nathan Lewin, a prominent lawyer who both shared a classroom with Scalia at Harvard in 1960 and later argued several cases before him in the Supreme Court, chaired the session. 

“I assume I’m here to talk about federal law,” joked Scalia, “because I must confess that my Daf Yomi (daily study of Talmud) attendance has been lackluster.” Scalia has been opining on issues of federal law since well before his Supreme Court appointment in 1986. A vocal conservative, Scalia believes the Constitution should be interpreted according to its original intent, and not based on evolving circumstances.

Minus his court robes, but still radiating a judicial bearing, Justice Scalia expressed his feelings on the court’s role in deciding privacy-related issues. “The notion that everything is private is extraordinary,” stated Scalia, “and I don’t think that’s what Talmudic law was referring to.”  He noted that medical records and drug prescriptions should continue to be off limits, while a person’s internet searches do not carry the same level of privacy. 

Though the main session was the day’s highlight, it was surrounded by complementary talks given by prominent attorneys and Talmudic scholars of varied backgrounds. “These classes provide opportunities to incorporate Torah teachings of ethics and morality into everyday law practices,” says Yisroel Schulman, president of the New York Legal Assistance Group and cofounder of IATL.

Falling precisely on International Data Privacy Day, the conference melded Jewish and secular, ancient and contemporary, in an effort to understand the range of often complicated privacy issues. This, asserts Heber, is merely following Talmudic tradition in which emperors and scholars consulted with Talmudists to broaden their knowledge.

Perhaps the two legal systems are not that different after all.