Question: I work in a cemetery on upkeep in the area of the graves. May I listen to Torah shiurim with earphones on site?

Answer: The gemara (Berachot 18a) forbids "holding a sefer Torah and reading it, wearing tefillin on his head," wearing tzitzit in an obvious manner, davening, and reciting Kri’at Shema in a cemetery/close to the deceased, due to the concept of lo’eg larash (literally, mocking the pauper). Chazal applied "One who mocks the pauper blasphemes his Maker" (Mishlei 17:5) to one who performs actions (especially mitzvot) in front of the deceased in a way that "reminds" them that they are now incapable of doing such special activities. The Shulchan Aruch (Yoreh Deah 367:3) forbids speaking words of Torah there even if not from a sefer, and there is a question whether holding a sefer Torah without reading from it is forbidden (Pitchei Teshuva ad loc. 2). The Beit Yosef (Orach Chayim 23) infers from the gemara’s language of tefillin on the head that tefillin shel yad are not a problem because they are not visible. He rules, therefore, that covering tefillin shel rosh (Shulchan Aruch, Orach Chayim 45:1) and tzitzit (ibid. 23:1) is sufficient.

How should we view listening to recorded Torah with earphones? In certain contexts, limud Torah refers to that which is spoken. The Shulchan Aruch (OC 47:4) rules that one does not need a birkat haTorah before learning Torah in his head, and this apparently includes reading with his eyes only from a sefer (Taz ad loc. 3; Mor U’ketzia, OC 47 may disagree). The Gra (ad loc.) disagrees because contemplating Torah is included in the mitzva. In that context, the Shaarei Teshuva (47:2) reasons that listening to divrei Torah is like speaking them; it is unclear if that applies to listening to a recording rather than a person (see Halichot Shlomo 6:5).

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Rabbi Daniel Mann

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However, it is likely that what defines limud Torah in our context is different. It is apparently assumed that one may not read Torah with his eyes from a sefer in a cemetery because it is clear what he is doing. Presumably all would forbid one to listen to a shiur without earphones. In the other direction, we have seen that full-fledged mitzvot such as wearing tefillin may be done when the mitzva is concealed.

How noticeable must something be to be forbidden? Reciting Kri’at Shema and tefilla are forbidden even though they need not be audible or from a book (Shulchan Aruch, OC 62:4). Is that because it is usually discernable, or because it is active, which may make it worse than just leaving covered tefillin or tzitzit on? If so, is listening (and/or putting on the recording) to a shiur active, or do we view it as coming from an outside source to a passive listener?

Some sources may indicate that a mitzva can be forbidden even if not seen, if there is a visible sign that it is taking place. The Taz (OC 45:2, accepted by Mishna Berura 45:3) says that one needs to cover not only the tefillin shel yad but also the retzuot on the finger. Presumably it is not because of the retzua on the finger itself (which is not a full-fledged mitzva), but because it is a sign that he is wearing tefillin on his forearm. Similarly, the Shiltei Gibborim (45:1) says that one may not carry a sefer Torah in a cemetery even if it is fully covered because people realize what the bulge is. Would we say, then, that someone who sees you with the earphone will figure out you are listening to a shiur? Is it enough that you might be using it for something else? Would we follow what one would guess about you or about most people?

We have been unable to conclude that your situation is discernable enough to be forbidden. We add in the leniency of the Netziv (Ha’amek She’ala 14:6) that since in our days, bodies are buried deeper than ten tefachim, lo’eg larash does not apply. So we will not rule to deprive you of the opportunity of limud Torah. You should seek your employers’ agreement, to ensure you are not guilty of lowering the quality of your work or upsetting others around you. Also, try to conceal what you are doing as best as you can.