In The Ethics of Liberty, Murray Rothbard explained why “slander” and “defamation” could not be outlawed by a libertarian society:
Smith has a property right to the ideas or opinions in his own head; he also has a property right to print anything he wants and disseminate it. He has a property right to say that Jones is a “thief” even if he knows it to be false, and to print and sell that statement. The counter-view, and the current basis for holding libel and slander (especially of false statements) to be illegal is that every man has a “property right” in his own reputation, that Smith’s falsehoods damage that reputation, and that therefore Smith’s libels are invasions of Jones’s property right in his reputation and should be illegal. Yet, again, on closer analysis this is a fallacious view. For everyone, as we have stated, owns his own body; he has a property right in his own head and person. But since every man owns his own mind, he cannot therefore own the minds of anyone else. And yet Jones’s “reputation” is neither a physical entity nor is it something contained within or on his own person. Jones’s “reputation” is purely a function of the subjective attitudes and beliefs about him contained in the minds of other people. But since these are beliefs in the minds of others, Jones can in no way legitimately own or control them. Jones can have no property right in the beliefs and minds of other people.
Try telling that to Daniel M. Snyder, the owner of the Washington Redskins, who plans to sue a small newspaper that published an article criticizing him. Last November, the Washington City Paper published Dave McKenna’s article, “The Cranky Redskins Fan’s Guide to Dan Snyder,” which contained a laundry list of negative anecdotes compiled over Snyder’s 11 years as owner of the city’s most high-profile business. Most of the items are petty gripes, including various claims of price “gouging” and a report from the neconservative American Enterprise Institute describing Snyder’s management of the Redskins as “irrational.”
Last night the Washington Post reported, “Snyder has objected to the article…and has threatened legal action against the newspaper,” as well as demanding McKenna’s firing. The Post cited a letter from Redskins chief operating officer David Donovan to the City Paper‘s parent company stating, in the Post‘s words, “legal action was an option.” This afternoon, John Keim of the Washington Examiner directly quoted Redskins spokesman Tony Wyllie: “We will not put up with lies. Once [the lawsuit] is filed, everyone will know the truth.” (Chris Russell of ESPN 980 radio, which is owned by Snyder, reported late this afternoon that Donovan and Wyllie said Snyder “never asked for anyone ever to be fired.” Russell also confirmed that Snyder will file his lawsuit against the City Paper on Thursday.)
The Post also reported that one of its writers, Dan Steinberg, may be a target of Snyder’s attorneys. Citing unnamed sources, the Post said the attorneys “asked the newspaper to preserve e-mails between” Steinberg and McKenna, who are described as “former neighbors and longtime friends.”
Neither the Post article nor any public comment from Snyder’s representatives specified what false or defamatory statements are contained in McKenna’s article. A Twitter post by “Hogs Haven,” the editor of a Redskins fan blog, said, “I just heard the other side of the story…and I have to say I agree with [Snyder] now…the full details will come out after the Super Bowl.” The writer did not offer any further information. (Chris Russell reported this afternoon that, according to Redskins officials, that the “City Paper has used anti-Semitic tones in the past, and that will be a part of the complaint.”)
Hogs Haven’s tepid assurances aside, it’s hard to see how this anything but Snyder trying to intimidate a critic into silence. The Post quoted Patty Glaser, a Snyder attorney, as saying McKenna and the City Paper “pushed” her client towards a lawsuit. Yet McKenna’s article contained little original reporting; it was a compendium of previously reported stories, some nearly a decade old.
Snyder’s potential lawsuit exposes the inherent fallacy of “slander” and “defamation” lawsuits. As Rothbard noted above, there is no such thing as a right to one’s reputation — i.e., “a function of the subjective attitudes and beliefs about him contained in the minds of other people.” And in Snyder’s case, his reputation prior to McKenna’s November 2010 article was already quite negative in the minds of most people. If anything, this newest report only deepens the public antipathy most folks have towards Snyder.
The root cause of Snyder’s unpopularity is the fact the Redskins have struggled to win games under his ownership. It’s a near-universal law of sports fandom that “winning cures all ills.” Rothbard himself offered similar thoughts:
[P]eople’s subjective attitudes and ideas about someone or his product will fluctuate continually, and hence it is impossible for [anyone] to stabilize his reputation by coercion; certainly it would be immoral and aggressive against other people’s property right to try. Aggressive and criminal, then, either to outlaw one’s competition or to outlaw false libels spread about one or one’s product.
Snyder’s threats of litigation are foolish. He can’t restore a reputation he never had through litigation. Indeed, that’s probably not his goal at all. Snyder has access to multiple media outlets. He owns the largest sports-talk radio station in the DC area, in addition to various “exclusive” content deals with various television and Internet outlets. If Snyder simply wanted to refute what he believed were McKenna’s false charges, he could take his case directly to the public without any legal intermediaries. He could plop himself in front of a microphone on his radio station and speak for three hours uninterrupted if he so desired.
So we’re back to concluding Snyder is just trying to silence a critic. And he’s prepared to employ the aggressive apparatus of the state to do so “legally.” As Rothbard noted, “the current system discriminates against poorer people in another way; for their own speech is restricted, since they are less likely to disseminate true but derogatory knowledge about the wealthy for fear of having costly libel suits filed against them.”
Whether or not McKenna intentionally made false statements about Snyder is not the point. Nor is this even about whether Snyder is the devil incarnate or a misunderstood businessman. The moral here is that the existence of the state’s monopoly court system and its protection of subjective non-rights like “reputation” create an attractive nuisance for men of means to avoid directly confronting their critics and instead threaten to blow them out of the water. The “law” allows Snyder to bring a government-owned bazooka to a knife fight, even though Snyder already owns several guns of his own. He doesn’t even require the state’s “protection,” yet he still seeks it.
The irony, as Rothbard concluded, is that protection of one’s “reputation” against false and malicious reporting would actually be easier in a libertarian free market:
[I]n the current situation, when false libels are outlawed, the average person tends to believe that all derogatory reports spread about people are true, “otherwise they’d sue for libel.” This situation discriminates against the poor, since poorer people are less likely to file suits against libelers. Hence, the reputations of poorer or less wealthy persons are liable to suffer more now, when libel is outlawed, then they would if libel were legitimate. For in that libertarian society since everyone would know that false stories are legal, there would be far more skepticism on the part of the reading or listening public, who would insist on far more proof and believe fewer derogatory stories than they do now.
UPDATE: Details of the lawsuit have started to emerge. The City Paper released a copy of a letter from the Redskins David Donovan to the newspaper’s owners dated last November 24. Donovan accused the City Paper of waging “an ongoing campaign…to smear [Snyder's] personal and business reputation.” Donovan cited a snarky remark by McKenna about Snyder’s wife, Tanya, and an “anti-Semitic” depiction of Snyder as the devil. Snyder — whose team mascot has been frequently criticized as racist and insulting to Native Americans — was described by Donovan as “insulted” and “offended” by the depiction, which Donovan noted, “has been used to demean Jews since the Middle Ages.”
The core of Snyder’s pending lawsuit, however, revolves around a paragraph in McKenna’s story that claimed Snyder’s former company, Snyder Communications, forged customer names as part of its telemarketing operations. Donovan said it was a false statement that was libelous on its face. The balance of the letter complains about other charges in McKenna’s article and is replete with various threats against the City Paper and its ownership.
In a statement by publisher Amy Austin, the City Paper stood by the story and said they repeatedly offered Snyder a chance to publish a response to McKenna’s article, which Snyder has declined.
2ND UPDATE: Snyder has now filed suit against the City Paper‘s owners in Manhattan State Supreme Court. He’s seeking at least $1 million for damages to his “reputation and standing in the community, shame, mortification, hurt feelings, embarrassment, humiliation, damage to peace of mind, emotional distress, and injury in his occupation” and accuses the City Paper of “oppression, fraud, and malice.”