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.”
{ 23 comments }
Well, if someone has the “right” to knowingly print falsehoods about someone else, then people have the right to defend themselves against those falsehoods. Does anyone disagree with that? If this Redskins guy can prove that McKenna knowingly lied about him, then why can’t he bring a civil suit against him? It’s akin to fraud in my view.
How can it be fraud when there is no contract between the two?
It seems to me McKenna can defend himself without resorting to the courts. He merely needs to demonstrate that the newspaper is lying, or is simply wrong, about what he has (supposedly) done wrong.
He could issue his own ‘press release’, and, line by line, show how the paper is wrong. If he can show that they printed certain allegations but had facts to the contrary, he can claim that they lied.
The paper stands to suffer a blow to its own reputation if he can show this. Assuming it bills itself as a place to get up-to-date and quality information its sales would suffer. In fact, he may come out looking even better afterwords (as a ‘victim’).
Sure. If someone has a “right” to print falsehoods about you, you have a “right” to print falsehoods about him. What’s the problem with that?
Hi Peter,
Under the current legal system, two wrongs don’t make a right. On the other hand, there is nothing preventing anyone from using any means at his disposal to deny or rebut public accusations.
At some threshold under the current legal system a public relations war may become a legal cause of action. I am pretty sure, however, that not every slanderous comment ends up in court. The potential harm and likely recovery must be weighed against the cost of litigation and costs of losing the case.
Rothbard’s idea seems to be that there is never any reason to go beyond a PR war.
Of course like many things in a “purely libertarian” world, those with resources can buy better “justice”.
No, Rothbard’s idea is not “there is never any reason to go beyond a PR war”, but rather, there is no property right to a reputation.
Wildberry,
Yet again you try to divert the flow of the debate by confusing and making up new stuff. I never said that lying is “a wrong”. Rather I said that if you lie about others, others should be able to lie about you too. I see no reason why this should be different depending on whether it is right or not. If it is right, everyone should be able to do it anyway. If it is wrong, the appropriate “punishment” for lying should be equivalent: the criminal should be the made target of the lies. Whether this is done by a DRO or a state court is also irrelevant.
But slander and libel do not work this way. They are based on a monetary compensation. The alleged victim does not want to be compensated by the allegedly high value immaterial goods. He wants the material goods (at least usually, in some rare cases the victim is satisfied with an apology and only requests symbolic material compensation).
Yet again, the self-contradiction of the “theory” is demonstrated. I know that it has no impression on you, and you’ll make up a lot of irrelevant nonsense as a response, but at least your fraud will be better exposed.
Peter,
First you said this above:
“If someone has a “right” to print falsehoods about you, you have a “right” to print falsehoods about him.”
Then you said this:
“Yet again you try to divert the flow of the debate by confusing and making up new stuff.”
I’ll excuse this baseless accusation. I don’t know where you get this stuff.
I never said that lying is “a wrong”. Rather I said that if you lie about others, others should be able to lie about you too.”
As I said, two wrongs don’t make a right. Either harmful lies are acts of aggression, or they are not. Since you apparently have no problem with them, everyone one is free to engage in their propagation. Do I understand you correctly?
“I see no reason why this should be different depending on whether it is right or not.”
I do, if by “right” you mean moral conduct tied to a non-aggression ethical principle. Without a clear system of recognizing a breach of one’s rights and the “common-sense” understanding of why that is so, it is more difficult for populations of strangers to get along.
“If it is right, everyone should be able to do it anyway.”
I have trouble with the concept that propagating harmful lies with the intent to damage another is ever something that could be “right”.
“If it is wrong, the appropriate “punishment” for lying should be equivalent: the criminal should be the made target of the lies. Whether this is done by a DRO or a state court is also irrelevant.”
This sounds like “eye for an eye” legal theory. “Equivalent” does not mean “identical”. It implies proportionality. Death for lies is not proportional. An injunction and/or money damages might be.
“But slander and libel do not work this way. They are based on a monetary compensation. The alleged victim does not want to be compensated by the allegedly high value immaterial goods. He wants the material goods (at least usually, in some rare cases the victim is satisfied with an apology and only requests symbolic material compensation).”
Monetary compensation is the traditional way of awarding damages in a successful civil court action. Since it is compensation, and since lies can never be destroyed once propagated, the victim can never be put back in the position he would have been had they not been told. Telling more lies doesn’t do it, either.
“Yet again, the self-contradiction of the “theory” is demonstrated. I know that it has no impression on you, and you’ll make up a lot of irrelevant nonsense as a response, but at least your fraud will be better exposed.”
Those are strong words, Peter. I object and take offense. I think you are narrow minded and confused, but I’ve never accused you of being a fraud. I think you owe me an apology.
You actually said that sometimes they don’t and sometimes they do. But you fail to explain the difference.
This is technically correct, but vague and misleading. The concept of a “harmful” lie is bogus. The distinction that is relevant from point of view of rights is whether the lie happens in a violation of a contract or not. To cover all related fields, I can imagine a third situation, where a lie made by person A causes B to aggress against C, but that has nothing to do with lie per se, rather than with causality, so it is not relevant for this debate.
That’s not what I was talking about, but I find it odd you mention “clear system” as an explanation of your position, whereas it is anything but. I have been attempting to show you how it is impossible to derive clear conclusions from your assumptions. Vagueness is the number one reason why I disagree with your statements.
That is because you do not have a coherent framework for evaluating human action. The “damage” and “harm” you are referring to are metaphorical. What actually happens is that when you lie “harmfully” about someone, you change other people’s opinion about that someone in a way that that someone does not approve of. But that someone has no right the other people’s opinion about him, they do. So there is no logical foundation for a legal recourse. You yourself admit that in the case of market competition, causing an outcome that the losing competitors disapprove of is not an aggression.
I fail to see how forced labour or expropriation is proportional to lying. Proportional compensation for a violation of a right to immaterial (if such a right existed) should be immaterial too.
On some level, I can agree with this, but it still does not explain why is lying back an inappropriate response.
This is so vague that it is completely pointless to address it.
Again, there is no coherent explanation why the one who is lied about should be regarded as victim. Not liking a situation does not mean your rights were violated. You don’t have a right to other people doing business with you or to interact with you socially or to have a accurate opinion about you.
Well then, why are you not fixing the logical errors in your arguments like I have been asking you since the beginning? Why the constant evasive maneuvers?
What you think and what you can prove are two different things. Your claims are vague and often devoid of any meaning. You are not expressing yourself intelligibly. If you are not a fraud, then you’re an incompetent debater. Take your pick.
I have since the beginning explaining that my arguments merely demonstrate that my opponents contradict themselves. There is no need for them to agree with any assumptions I might be making. They merely need to defend the consitencey of their own assumptions. I also try to avoid arguments that require a specific moral stance. I attempt to formulate my claims in a falsifiable manner (e.g. the claim that immaterial goods are an interpretation of the physical can be easily disproved by providing an example of an immaterial good which can be interacted with without the use of the physical world).
In my opinion, that counts as quite a generous and the same time scientific approach to alternative opinions. But you call me “narrow minded”. Either you do not comprehend my arguments, or you are not genuinly interested in the debate.
And I think you owe me a debate, something which you are avoiding at all costs.
“And I think you owe me a debate, something which you are avoiding at all costs.”
Peter,
As you well know, I have engaged you tirelessly to no avail.
It appears that just because you read some Aristotle and latched onto his Principle of Non-Contradiction, you seem to feel entitled to require me to resolve a philosophical debate that has not been resolved in over 2000 years of discourse.
Merely because you insist that that something I have said violates your philosophical sensibilities does not oblige me to endlessly indulge your sense of intellectual superiority. In my view you simply use this technique to mask the true nature of the unanswerable challenges you post. I grow tired of this. I do not intend to endlessly wriggle on the enigmatic hooks you devise for your own amusement.
If you wish to ask me something in a clear a respectful manner, I will consider my willingness to answer. I owe you nothing.
A typical answer. Metaargumentation, avoiding direct confrontation, no substance, no point, and attempting to portray the outcome as my fault. You are unwilling to participate in a scientific discourse and take offence when your opponent takes the same approach as you do.
From my perspective, what you did is to try to tire me out. Turns out it didn’t work. I’m participating in the debates to find the truth (well, the falsehood, since I’m a falsificationist) rather than to show off. My goal isn’t to be correct at the beginning of the debate, but at the end of it. Apparently, there are people who take it very personally when their assumptions are challenged.
I’m sure there are activities in which you are more successful as well as you find more enjoyable.
lain,
It is likely that this lawsuit will be dismissed in summary judgment.
Snyder is a public figure, so he would have to show malice. Also, he would have to show he was damaged. If his reputation already sucked, that would be hard to do.
Rothbard claims that there is no legitimate property right in a reputation, much like he denies propery rights in IP, because they are intangible.
The real issue here is not property rights, but aggression with an aim to harm. All people have a negative right to be protected from malicious acts initiated by others which are harmful to them. On the other hand, people have the positive right to free speech. When these rights conflict, civilized societies develope the means, through legal rules, of resolving them peacefully.
There is no need for Rothbard to surmise that we would all be more free if liable and slander were as common as the wind. The reality is that this cause of action exist at the boundary of one persons right to freedom from aggression, and another’s right to freedom of expression.
The rule of law will handle this simple case easily and quickly. No need to invent something new.
No, that’s not the reason. At least not the primary reason. The reason is the same I’ve been, unsuccessfully, attempting to get you to understand for quite some time: the rights in reputation or “IP” or any other interpretation of phenomena (other than the physical one, obviously) contradict physical property rights. The intangible is an interpretation of the tangible. It’s not something else.
The contradict property rights because they fail to recognize that all rights are property rights; they fail to realize that things they call rights (right to freedom of speech, etc.) are all just consequences of basic property rights. In conflating consequences of rights with rihgts they get a vague and fuzzy notion of what rights themselves are, and so are less restrained at inventing new ones–which instead of being consequences of property rights (and thus a harmless confusion) are actually contrary to property rights.
Hi Stephan,
“The[y] contradict property rights because they fail to recognize that all rights are property rights; they fail to realize that things they call rights (right to freedom of speech, etc.) are all just consequences of basic property rights.”
By “they” you mean reputation and IP, taken together?
I think the only way to make your statement work is to assert that because neither reputation rights nor IP rights exist, there is no remedy for what would otherwise be considered a breach of those rights. Therefore, the “slanderer” has unconditional rights to free speech, and the victim has only equal rights to free speech to rebut and nothing more. Do I catch your meaning?
Of course, if you begin your analysis of slander with the premise that all people have the right to freedom from harmful aggression (assuming you agree that harmful lies are an act of aggression), you arrive at a different outcome.
“ In conflating consequences of rights with [rights] they get a vague and fuzzy notion of what rights themselves are, and so are less restrained at inventing new ones–which instead of being consequences of property rights (and thus a harmless confusion) are actually contrary to property rights.”
I gather from this that an exercise of one’s right to enforce a right is not equivalent to the right itself. I can agree, I think, although it seems to me that a right without a right to enforce its violation is not really a right at all, and therefore “rights” and “consequences” arising from those rights are reciprocal in nature and cannot be separated entirely.
I think what you mean is that since property rights can only be defined narrowly, (natural rights and “homesteading”), there is no right to reputation or IP, and therefore there can be no consequences for breach or infringement of that non-existent right.
As I said to Peter, this leads you to a strange conclusion, as I view Rothbard’s view on this subject. It requires you to deny that any aggression actually took place, for if you acknowledged the aggressive act of slander, you must also recognize the consequences available to the victim. If you deny legal remedy, as you do, then you must find that the act was not aggression because you cannot infringe upon a right that doesn’t exist.
According to this view, both “aggressor” and “victim” are left in the same position they were before the act. Neither has done other than exercise the natural right of free speech, and therefore no right of retribution arises. The only course of action available to an aggrieved party is to respond in kind, and see who can “out-slander” the other.
This is what I meant when I said Rothbard recommends that victims simply should be satisfied with engaging in a PR war with the aggressor, provided s/he can afford the time and money to do so. Not a very satisfactory or equitable outcome, in my view.
Peter,
Cognition is not the same phenomena as expression, while the former preceeds the later. The only way you can make your theory work is if you negate the existence of any intangible phenomena, like cognition. You would have to postulate that only tangible forces can modify tangible matter. You can build a world view on that postulation, but it delivers you to some strange conclusions about reality.
But nonetheless, it is your theory and you are apparently very fond of it.
Wildberry,
another typical example of your methodology. You make up new phrases and divert the flow of conversation to other questions. The arguments to bring up do not confront my arguments. They confront other arguments, which you made up and pretend that they have to do something with our debate. They don’t. Did I say that I negate the existence of any intangible phenomena? No. Did I say that only tangible forces can modify tangible matter? No.
On the other hand, have you shown up any example of anything intangible which can be used, created, disseminated, thought about, referred to, or any-other-verb-ed, without altering physical matter? No. So, my argument stands.
I agree that the issue is aggression. The aggression of the one who does not like what others say, and decides to use aggression to make them stop or pay to him.
Yet again, you want to have your cake and eat it to.
Peter,
Cause and effect, action and reaction.
If one person first performs an aggressive act, rights of retribution arise in the person thus offended.
One could argue that such retribution is an act of aggression, and therefore equally wrong, as you seem to be doing. I do not.
Also, one could argue that only certain forms of retribution are “legal” or moral, while others are not. I personally hold such a view.
You seem to be arguing that response in kind is acceptable, because the original act is not “illegal”, but I see that subsequent act as a separate offense.
Rothbard seems to be arguing that “PR wars” are the appropriate response to the initial aggression, while I believe that while not prohibited, as rebuttal, legal and equitable remedies are also available, provided that the “victim” can make a case.
I fail to see how you conclude that I want something both ways, if a catch the meaning of your criticism.
That’s not what I said.
Well, then you should be able to conceptually grasp my objections when I protest against expropriation of physical property, be it through taxation or IP, and to my objections that merely not liking something is an insufficient argument for retribution.
That makes no sense to me. If you do not agree that “lying back” is the appropriate response, then what is the appropriate response? Expropriation of physical property (=financial compensation)? Forced labour (=apology)?
You want lying to be illegal, which means expropriation of physical property, and violations of this rule should, apparently, also be punished by redistribution of physical property.
Wildberry,
What if you make your living selling lemonade and I don’t like you. In order to make your life miserable, I open a lemonade stand across from yours and sell lemonade far more cheaply than you, and eventually drive you out of business.
Would you categorize my action as “aggression with the aim to harm”?
I don’t see how any articles can do any further damage to Snyder’s reputation. His team is the most notoriously mismanaged team in the NFL. Everybody who closely follows the NFL knows that Snyder is the worst owner in the league. Even in our present statist society, it is not a violation of “defamation” laws to print the truth and that is the defense that the newspaper should use in court.
Richard M,
No.
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