Halachic Talking Part IV

C. Analysis of the Sources and their Implications

The earlier sources that discussed microphones and hearing aids have a very liberal definition of what is considered producing sound in halacha. In effect, they argued that any sound that is produced due to human intervention is considered sound. Therefore, sound produced by use of a microphone and speaker will still be attributed to the person who spoke into the microphone as the resultant sound would not have occurred without the human intervention. The same argument can be presented in a slightly different way. The initiation and perception of the sound was accomplished in a natural way, the intermediary that amplified the sound is irrelevant.

            To avoid a reductio ad absurdum, this presentation requires several important limitations. Human intervention needs to be conservatively limited to use of the vocal cords. Otherwise, by simple pressing a button that then produces the required sound the halachic requirement, of for example hearing shofar, would be fulfilled. More significantly, there is a need to include a time delay requirement where only sound that is produced near-instantaneously after speaking would be considered halachic production of sound. Otherwise, any recording of, to use our previous example, blowing shofar would constitute hearing the shofar on Rosh Hashana.

            Reconstructing the above definitions in light of these limitations results in the following: any sound produced due to the natural and without time-delay human intervention through the vocal cords would be considered halachic sound. It is then obvious, that any mitzva that requires hearing can be fulfilled by use of a microphone.

            In stark contrast, the opposing view argues that for sound to qualify for halachic needs it must imitate the biological sound described in the introductory section. That is, air pushed through the vocal cords and resonates through the upper airway tract produces halachic sound. In physical terms, the vibrations of the vocal folds that result in sound waves are uniquely considered halachic sound. A microphone that picks up those sound waves, converts them to an electrical current and then produces new sound waves through a speaker is not considered halachic sound. On the contrary, those new sound waves are attributed to the device. And since devices are not obligated in mitzvot they cannot fulfill the obligation for a person that is.

            These two views have numerous implications for practical halacha in addition to those already discussed throughout the above presentation. Most recently, many of these issues were analyzed during the COVID-19 pandemic when restrictions on public gatherings limited the ability of people to participate in religious communal obligations. One responsa argued that grandparents would be allowed to stay home and use Zoom to participate in their families seder, including fulfilling their obligation of kiddush. Aside from the numerous electricity on Yom Tov issues[1], this argument would only be considered valid according to the positions that maintain that sound heard over a speaker can be attributed to the person talking. Interestingly, this position would also resolve another issue that would be encountered on using speakers on Yom Tov and Shabbat.

            An early gezira enacted by Chazal disallowed the use of musical instruments on Shabbat for fear of shema yitakon; the instrument may break and the biblical transgression of boneh would be violated. The Rema[2] argued that this gezira would be extended to any item used to make noise, such as a knocker on a door. Nevertheless, the Biur Halacha[3] limited his expansion to situations which do not have a “great need.” The application of this gezira to the use of speakers should depend on our discussion. Assuming that a speaker is a new sound not attributed to a human voice would necessarily result in its prohibition on Shabbat as it is an instrument used to make sound. However, if the sound heard over a speaker can be considered human voice then it should allowed on Shabbat as talking should not be considered a musical instrument.

            This analysis is not completely supported by the sources. Rabbi Feinstein[4] did not allow the use of microphones on Shabbat because of shema yitakon. As discussed above, our analysis of Rabbi Feinstein’s position assumed that he considered human sounds heard over speakers are qualified as halachic sound. Therefore, he should not have argued that microphones were disallowed on Shabbat due to shema yitakon. We then necessarily conclude that these are separate issues. Halachic sound is that which is produced by a person’s mouth, irrespective of what form it takes after the person disseminates the sound waves. Shema yitakon, as described by the Rema, is a prohibition of using any device whose purpose is to create sound. Therefore, the sound that is amplified would be prohibited, even though it is classified as halachic talking. Importantly, as quoted above, the Biur Halacha who allowed shema yitakon in a situation of great need would obviously allow the use of hearing aids on Shabbat[5].

            The opposing view would also allow for the use of hearing aids on Shabbat but for a very different reason. As they do not consider the sound produced by the speaker to be a human voice, there are one of two possible halachic considerations. The first, shema yitakon, as above, and the second avsha milsa. Avsha milsa is the rabbinic decree to not allow the use of devices that violate one of the 39 melachos on Shabbat, even if they were turned on before. The classic example is using a windmill on Shabbat, the windmill is not activated on Shabbat but it results in grinding occurring on Shabbat. There are two possible reasons for this decree, either we do not want one of the 39 melachos to occur on Shabbat, irrespective of when the initiation of the process was performed, or we are afraid people will assume the melacha was initiated on Shabbat and they may erroneously assume it is permitted. The same argument can be applied to hearing aids and microphones as even if they are turned on before Shabbat their use should still be prohibited because of the concern of avsha milsa. Nevertheless, as explored in an essay by Rabbi Rosen[6] most microphones do not qualify for one of the 39 melachos (provided they were turned on in advance). The sound produced by the speaker does not result in any increase in electrical current and as such is not prohibited. Therefore, there is no concern of avsha milsa and the only issue is shema yitakon which can be overlooked with hearing aids as per the Biur Halacha quoted above.

Another area of concern during the isolation caused by COVID-19 was the need to limit the number of people that can attend shul. A possible solution was to host a virtual minyan over Zoom. A minyan requires the gathering of ten men together in one room. By necessity then, a quasi-virtual minyan would need to be utilized such that ten men gather in one room and then broadcast their prayer to people that sign in over Zoom. Anyone not in the room where the minyan is physically occurring would not be able to say kaddish or the like. However, according to the positions that assume a speaker can be considered halachic talking they would be able to fulfill their obligation of megillah or shofar[7].

More commonly, microphones are considered for use in big Shuls or weddings where it is difficult to hear the chazzan or person reciting the bracha. As discussed above, the requirement of ten men in a room to constitute a minyan will be met. For the positions that assume speakers can amplify halachic sound, it should then be obvious that a microphone can be utilized in such situations[8]. However, even for the opposing view such a system can be utilized provided certain conditions are met. The Gemara discussed the synagogue in Alexandria, Egypt that was so large there was no way for everyone to hear the chazzon. They therefore utilized a system of signals such that all in attendance would know when the chazzon finished his bracha so they can answer amen. It seems that there should be no distinction between using signals or a speaker to let people know when they can answer amen. Importantly however, they would not be able to fulfill their obligation of shofar and megillahh with such a system.

As disclosed by Rabbi Reichman, this was relevant by the seyium hashas two cycles ago. Rabbi Reichman was chosen to lead the prayer and was concerned that they would use a microphone so all in attendance would be able to hear him. He related that he was reassured that Rabbi Eliyashiv allowed using a microphone provided that there are ten people close to him who hear him directly. Interestingly, in the previous seyium hashas this was not the case. The chazzan stood on his own dais with no one next to him and as such the only way he would have been considered praying with a minyan is if we assume that speakers are considered halachic talking. This is a similar concern to that which occurs in wedding halls where the person reciting the sheva brachos uses a microphone instead of amplifying his own voice for all, and especially the bride and groom, to hear.

[1] These issues include turning on a computer on Shabbat and writing on Shabbat.

[2] ש”ע או”ח שלח ס”א

[3] ד”ה הואיל וכלי מיוחד לכך

[4] שו”ת אג”מ

[5] There is however, one more area of halachic concern. Within the concern of shema yitakon, the Aruch Hashulchan argued that such a prohibition would be extended to turning on a device before Shabbat and leaving it on for the remainder of the day. As such, in addition to the prohibition of leaving a TV on before Shabbat for the remainder of Shabbat due to the shema yitakon, there is also a concern of leaving it on from before Shabbat starts. Nevertheless, Rabbi Aurbach points out that as a matter of principle we do not extend gezira to anything past the original decree.

[6] https://www.zomet.org.il/eng/?CategoryID=198&ArticleID=283#c3

[7] Interestingly, all position should allow using Zoom to make a seyium to be allowed to eat erev Pesach. A seyium allows firstborns to eat by facilitating their participation in a happy event. There is no requirement to hear the physical seyium. As such, merely participating over Zoom should suffice to allow eating on erev Pesach.

[8] There is however one more area of possible concern. There is a gezira that we do not use instruments in Shul to oppose Catholicism. If a microphone can be considered a musical instrument their use would be prohibited in Shul.