The argument against anti-defamation laws

Most people accept anti-defamation laws as a legitimate restriction on free speech. For a starters, the laws have always existed so it just seems normal to keep them. If we remove them then society would be plunged into chaos as everybody accused everybody of being a paedophile, a thief, or a murderous nutcase… and if those rumours are believed then they could cause lots of damage to the victims, such as loss of work and/or loss of friends. And that’s just not fair.

Perhaps. But before we give up on fully free speech we should fully understand the arguments.

Defamation involves (1) somebody lying about you, leading to (2) other people holding a bad opinion about you, leading to (3) a bad outcome for you because of lack of trade. None of these things are nice. But they are all voluntary and, all else being equal, none of them should be illegal.

There are two common confusions at this point. First, some people suggest that they “own” their reputation and so if you damage their reptuation then you have effectively stolen from them. This is clearly untrue. A reputation comes from people’s opinion, and each person owns their own opinion. If you have an opinion about me, that opinion is owned by you, not me. So you are entitled to change your opinion at any time for any reason and you have not stolen from me.

Second, some people take the bad outcome to be proof that something must be wrong. But here they misunderstand two very different sorts of bad outcomes. There is an important difference between stealing something (so you have made somebody worse off) and refusing to give something (so you have refused to make them better off). With defamation, the bad outcome comes because people refuse to interact with you. People may refuse to buy from you, or people may refuse to be your friend. But in a free society nobody has an inherent right to the property or friendship of other people.

So in a perfectly free society (where all human interaction is voluntary), defamation would be legal. But sometimes the voluntary outcome is not the best outcome, and so we should consider whether the government should over-ride freedom to try and create a better outcome.

The goal of anti-defamation laws is to ensure that other people can’t ruin your life by spreading lies about you. That is a worthy goal. But does it work?

As David Friedman showed in his popular economics book “Hidden Order“, the best way to establish a good reputation is to actually be a good person. If most people like you and trust you, then even if some people said bad things about you, you will build a good reputation. If most people don’t like you and don’t trust you, then even if some people vouch for you, you will end up with a bad reputation.

For the vast majority of people, this is how reputation is built and maintained. Some people may lie about you, but ultimately the truth is more likely to win out. Or as Thomas Jefferson said “The man who fears no truth has nothing to fear from lies”. And more to the point, the majority of people cannot afford the cost or deal with the complexity of defamation laws, which effectively puts them out of the hands of lower and middle-income families. For most of us (and for most people around the world and through history) it is as though defamation laws don’t exist.

This may lead to the conclusion that defamation laws are irrelevant, but there is one way that defamation laws do change behaviour. Larger organisations and high-income people are able to afford the cost and so are in a position to sue people (or threaten to sue people) who they see as lying about them.

The problem with legislating about lying is that one person’s lie is another person’s truth… and we don’t have a perfect angel available to uncover who is right. In some cases it’s subjective. In some cases we guess at the truth. In some cases people may know the truth, but be unable to prove it. A law against lying  can easily turn into a law against saying anything unapproved by an official authority.

Of course, large organisations and rich people are the least in need of anti-defamation laws because they are most able to loudly and convincingly defend their reputation. But anti-defamation laws gives them another weapon. For people talking about or writing about large organisations or rich people, the threat of being sued (even if there is only a 10% chance of being found guilty) is a strong incentive not to say anything negative. This stiffling of free speech is very real, but impossible to measure; we cannot count the number of statements that were not said.

The consequence is an uneven playing field where larger organisations and rich people have an extra advantage over the rest of us.

A more balanced playing field would be achieved by having an independent 3rd party (like a court or another trusted institution) making a determination, but without any legal sanction. It could be like a non-government “court of truth” where people go to defend their reputation, but without restricting freedom of speech. People could speak freely without threat of being sued, and people could rest comfortably knowing that they will always have the opportunity to defend their reputation.

A final problem with anti-defamation laws is that once you start undermining freedom of speech it becomes easy to find numerous other excuses to restrict free speech. Consequently, we are now facing a range of laws that prevent people from giving offense, such as anti-vilification laws. It is not nice to lie about people, or to vilify people, or to tease people or offend people… but that is what freedom of speech means. If we re-define “freedom of speech” to mean “saying only nice things approved by the government” then we are making a mockery of freedom.

126 thoughts on “The argument against anti-defamation laws

  1. I still don’t understand why defamation isn’t stealing someone’s investment in their own ‘goodness’ and indeed the goodness itself. Similarly the defamer is stealing the good opinions that others’ hold of the defamed person. In this light defamation continues to be a property rights issue and not a free speech issue.

  2. I think Sinclair is right.

    “If we re-define “freedom of speech” to mean “saying only nice things approved by the government” then we are making a mockery of freedom.”

    Fine, but how about changing the liability of a tortfeasor such that they are liable for the full costs of defamation, regardless of their financial position?

    The current system is merciful compared to such a change.

  3. Sinclair… you don’t own other people’s opinion of you. Each person owns their own opinion.

    As I said: “A reputation comes from people’s opinion, and each person owns their own opinion. If you have an opinion about me, that opinion is owned by you, not me. So you are entitled to change your opinion at any time for any reason and you have not stolen from me.”

    To deny the above paragraph, you need to deny that each person owns their own opinion. I note that neither of you addressed this issue. Do you honestly believe that people don’t own their own minds? And if they do — then free speech is consistent with property rights and there has been no theft.

    It also makes no sense to talk of “stealing” when every action is voluntary and peaceful. Remember, freedom means the freedom to pursue voluntary and peaceful actions… even when other people don’t like our actions. Saying mean things (even when it causes loss) is part of that freedom.

  4. Larger organisations and high-income people are able to afford the cost and so are in a position to sue people (or threaten to sue people) who they see as lying about them.

    That’s not exactly true. Large organisations are specifically barred from suing for defamation.

    I rather like the American approach. To be defamatory, the plaintiff has to prove malice on the part of the defendant. In other words, there must be knowledge and intent to do harm.

  5. John,

    I suspect doctors and teachers would be especially critical of your idea. I don’t think you’ve considered how much more certain professionals rely on reputation than others – (even legally/administratively suspicion can ruin their career or put it on hold). I know your argument is similar to the argument I largely agree with about intellectual property. I agree copyright does violate the self ownership others have. I do not believe that defamation does – I think it protects it. An analogy to summarise my thoughts would be that copyright supports “squatting” whereas defamation restricts externalities.

    I don’t think that (true) defamation is “peaceful and voluntary”. You’ve recognised an economic benefit to reputation. Also note that someone who defames you may only get the non pecuniary, personal benefit of actually defaming you, they get this benefit at your financial loss and worse through dishonesty and malice. How is this “peaceful and voluntary” under the aegis of the *non aggression principal*? It’s not exactly like fraud because the losses may be non monetary and explicit.

    I’ll take this back if under your system we can go back to (wait for it) – duelling! There need to be strong disincentives to damaging economic goods and property of others. You cannot simply promote yourself enough sometimes. Likewise, being a good landholder cannot prevent the loss you suffer if someone dumps soluble plutonium on your land.

    What makes you think that removing a restriction on defamation wouldn’t result in more violence anyway?

  6. As for the idea of the “court of truth”

    How is this not as dangerous as Government sanctioning an opinion? How could you prove that there is no tortious behaviour? What about criminal negligence?

    Defamation may not occur alone and separate to business activity. If it occurs as an anti-social aspect of competition, then the tortious and possibly fraudulent behaviour does not cease to exist if we relax the rules re: free speech.

  7. Of course defamation is “peaceful and voluntary”. It is not violent. And it is not involuntary. Unless we play Orwellian games, words have meanings. Just because you’re sad, that doesn’t mean I’ve done something involuntary or violent. You’re confusing means (voluntary/involuntary) with ends (sad, poor, happy, rich).

    Having a bad reputation hurts people. I said that. If people don’t like you, you might be sad. I said that. The best defence against a bad reputation is to be good at what you do. I said that.

    Saying nasty things might be anti-social. I defend the right of people to be anti-social, so long as it’s peaceful and voluntary.

  8. Put it this way… people should be free to do what they like (which is voluntary) unless your proposed government law passes a benefit-cost analysis. The burden of proof is on you. With anti-defamation, there is a cost, and the only benefit mentioned so far is a “vibe”. Not good enough. Freedom comes before a vibe.

  9. God, the phoenix rises from the ashes. Will this one ever get put away?!!

    I understand John’s position. I do think he’s wrong. If someone deliberately and knowingly spreads misinformation that harms someone else then they’re not innocent, and I don’t agree that their actions are consistent with voluntary society. When it comes to the people around me to whom I extend mutual rights, I support their right to their religion, to do whatever they choose with life choices, to whatever value system they like, to even not like me – so long as it doesn’t involve me if I don’t want, in the sense that it affects my daily life. Knowingly and intentionally spreading misinformation to my detriment is not consistent with this mutual agreement.

  10. John – if you think the non-aggression principle is an “Orwellian word game”, you simply have a bad idea. I would say someone else wasn’t a libertarian – but obviously you are.

    If you think I need to explain why your idea doesn’t follow the non-aggression principle, I will. I thought it was obvious why though. In short, someone is destroying your property without your permission. I also thought it was implied that fraudulence was rejected by the principle as well.

    “The best defence against a bad reputation is to be good at what you do.”

    That may be correct in general, and in the context of the veil of ignorance. I’m inclined to believe this. What do you do when someone actually does falsely smear your reputation? How do you get accomodated from losses?

    (PS John – “anti-social” isn’t used here as a weasel word used in particular by Anglophone liquor and gaming regulators. “Disutilitarian” may be another way of saying the same thing, as utilitarian would be the same as “pro-social”. After all, we’re aware that the straw man that says that laissez faire and social liberal policy is “anti-social”, is false).

    More or less I agree with Michael and think my position can be summed up with the comparisons of squatters/IP law and defamation/externalities.

  11. Adding to my points above I agree with John that the ‘you own your reputation like property’ argument is not valid.

    However, as seems to be with so many libertarian positions, I’d happily work towards abolishing anti-defamation law on the basis that no law is better than bad law and the chances of getting a non-bad law in this area is hopeless. I certainly believe that if a law was put in place consistent with my argument above it would provide a net benefit to civil society, it would be used extremely rarely, and when it was used you’d find that public opinion was universally in favour of the decision and that the guilty party deserved what they got. But the standard libertarian lament applies: law of this quality is so rare it’s best not to try to go in that direction.

  12. I think the libertarian philosophy revolves around coercion, which includes a lot more than just violence.

    To publicly accuse someone, falsely and maliciously, of being a pedophile is profoundly coercive. It can do a lot more harm than cause hurt feelings. If it was made about a childcare business, for example, it may put it out of business and cause innocent people to lose their livelihoods.

    Unless there is public prohibition of that sort of thing (ie criminal defamation), there has to be a civil remedy. Even then, a private remedy (ie a baseball bat or 9mm) might be preferred.

  13. “To publicly accuse someone, falsely and maliciously, of being a pedophile is profoundly coercive.”

    It’s not nice but it isn’t coercive. If the accusations are false there is a chance it might backfire on the accuser telling the lies and may even benefit the accused when they are publicly vindicated. The accuser has to take the gamble on trashing their own credibility/social standing. There is no literal assault on person or property and saying so seams to me to be crossing the line into creative metaphorical word concept twisting.

  14. It’s not coercive in the sense of a threat of force, but in the sense of being manipulative it has exactly the same effect as coercion, viz: 1. the person who receives the misinformation will behave differently than they would have otherwise, 2. the way they will now behave is not in their own interest, and 3. afterwards all the parties to the event will regard the coercer in almost the same was as if he used force.

    The crux of the matter is that no one is going to voluntarily enter into a relationship of non-violence with another person who is actively working against them in an underhand way. Certainly there are costs and risks to these people, but emperical evidence suggests clearly that there are many people who make their way through life like this. A libertarian society presents these people with exactly the same option as it does other people who more clearly do not want to live by positive, rational and objective values – shut your mouth and go quietly about your business leaving others alone, or face some violence. And as we’re civilised and this doesn’t require the immediate use of force to ensure righteousness, we’ll get it via the state. So we need a law.

  15. An action can either be voluntary or involuntary. Saying whatever I like is voluntary. Therefore it is not involuntary. Therefore it is voluntary. Therefore it is not involuntary.

    Does anybody really disagree with this?

    I mean… wow… really?

    Coercion means “threat of violence”. Saying “Michael abuses little boys” might be mean, but it is not a “threat of violence” therefore it is not “coercion”.

    Saying “voluntary is involuntary” and “no threat of violence is a threat of violence” is exactly what I mean by Orwellian word games.

    SRL — I am being fully consistent with the non-aggression principle. Saying “you like to rob old grannies” is not aggressive. But you getting the government to come and steal my property because you don’t like what I said is aggressive. I also find it amuzing/strange that you continue to persist in saying that my mind is your property. No. It. Isn’t. Just no. To put it in other words — no. Absolutely not. Na-a. Negatory. Nein. Bu shi. I own my mind. I do. Not you. Me. Really. Me. Let me know if I’m not being clear enough. 🙂

    There is little to no evidence that anti-defamation laws have done any good. People assert it all the time. But their evidence is “the vibe”. That’s the same evidence used to prove that guns & drugs are bad, and that without welfare society would crumble into a quivering heap.

    Michael — I made no agreement with you, and if I did, it would include the right to call you all manner of evil things. Just for fun. ;p

    Though I think that many people are likely to introduce minimum standards of behaviour on their private property, perhaps including about what can be said — and so I agree entering that property would involve entering into an agreement. There will be a range of different rules, and those rules which prove most popular will likely be imitated by other property owners and voluntary communities (ie body-corps and similar). Ah, the joys of freedom. No need for another inherently corruptible government program here.

    And another thought for you nay-sayers against absolute freedom of speech… once you start letting the government restrict speech, they aren’t going to stop when you tell them to. We already have “anti-vilification laws”. They are a very logical next step once you accept that government needs to limit free speech in the name of ensuring a good outcome.

  16. If coercion is only defined as “threat of violence” then defamation is not coercive. But coercion is often accepted as also meaning manipulation of someone’s ignorance or position of lesser power (eg convincing a minor to have sex with you).

    Given the latter definition lying, which defamation falls under, is a form of coercive behaviour. As is fraud. As is false advertising. If one can prove they incurred a loss through lying of some form then I think they should be able to recoup those losses.

    Freedom relies on the ability of individuals to make informed decisions- if someone is distorting the ability of an individual to make an informed choice then they are depriving that individual of freedom. If my entire world is filled with misinformation and lies but there is no government I have the illusion of freedom as there are no laws binding me and I can do whatever I like. But as the decisions I make are based on false information they aren’t really legitimate choices.

    The importance of informed and meaningful choices in freedom is made clear by the fact that libertarians support laws such as the age of consent law, or laws protecting children or those not of sound mind. It is not the role of government to ensure everyone has the information they need to make an informed choice- but it is the role of government to ensure those stopping others from making informed choices are held liable.

    Defamation laws, I think, are consistent with freedom.

  17. Oh and if it wasn’t clear from what I said above- I believe that tort law is sufficient for covering cases of defamation. I’m definitely not in favour of statutory law to cover such cases.

  18. “Coercion means “threat of violence”. Saying “Michael abuses little boys” might be mean, but it is not a “threat of violence” therefore it is not “coercion”.”

    No, but stopping you from saying such things might require violence on someone else’s behalf. Just like stopping you from committing fraud.

  19. Fraud is gaining benefit through deception. Defamation is causing harm through deception. If you do away with one then why not the other. Arguably fraud entails the removal of actual property so I suppose that is a difference. Personally my problem with defamation revolves around the burden of proof.

  20. A little Law 101 might put things in context here.
    There is Property, Contracts and Torts.

    Defamation is just another tort based on speech rather than acts. The English common law which has led to the economic advancements of centuries developed these three strands of law, evolved over the ages. By the accumulated experience of time they obviously have worked well which is not to say they are perfect.

    However any radical and seemingly arbitrary overhaul based on singling out *one* part of tort law i.e. defamation because of glibertarian word games like subjectively judging things on ‘peaceful and voluntary’ needs justification which John doesn’t give other than to keep repeating the ‘peacful and voluntary’ mantra. This is one of the reasons I don’t call myself a glibertarian anymore,.

  21. I’d like to see how John justifies laws against fraud based on his ridiculous ‘peaceful and voluntary’ word game btw. If this is all its boils down to I don’t think his position even deserves a response. it is self evidently absurd.

    let’s just abandon all policy analysis. all his economics are just a fig leaf for his already foregone conclusion – all the problems in the world reduced to word games

  22. People defending defamation laws just prove another point – that they prefer others do their thinking for them. If anyone was allowed to defame, then people would require evidence for it. They wouldn’t just believe what people say. You are being big goverment babies. You want to take care of people who are too stupid to think for themselves.

  23. I think that a lot of expense would be saved if people were clear about what they were saying. If you clearly say that this is your opinion, then you should be free to say it. It is my opinion that X is a paedophile, should not be some thing that I should be accountable for in a court of law. X is a paedophile, is a statement that I should be required to prove in a court of law.
    We should have freedom of opinion, so long as you state that it is an opinion, meaning not something that you can prove at the moment.

  24. Coercion is obviously not limited to violence. It includes such things as theft, fraud and blackmail, none of which necessarily requires actual or implied violence.

    Given that, it is quite obvious that malicious defamation is coercive. It might be characterised as theft (stealing the property value of a reputation, for example) or fraudulent (inducing someone to change their actions based on false information). Even threatening to defame someone (ie blackmail) has the potential to be coercive.

    Everyone has a right to protect themselves against coercion, or to seek a remedy when it has already occurred.

  25. “If anyone was allowed to defame, then people would require evidence for it.”

    You and John suffer from the same problem – not the “libertarian fragility”, which I think is a myth, but a similar problem – “I’m nice so everyone else is”.

    John’s wrong about the law and he’s abusing the non aggression principle to the point where I no longer recognise it. He’s usually right but he won’t explain why he is right about defamation as compared to fraud or blackmail, (explained in obvious terms) but then says his opposition are arguing on the “vibe” of things.

    Clearly Jason Soon is a libertarian and John is just wrong on this issue.

    “You are being big goverment babies.”

    I have some very ardent and uncompromising policy ideas actually. This is just silly. Maybe you’d like to argue about the legal & economic theory instead?

    “You want to take care of people who are too stupid to think for themselves”

    No, I want there to be a disincentive to dishonest people in influencing the opinion of people who are stupid such that the dishonesty of the first party does not harm party third parties.

    Defamation is like fraud but with a reversed payoff matrix. It is well known that it is used fraudulently in market competition.

  26. Nuke – so out of the following the first is acceptable but the second isn’t?

    1. In my opinion you’re an idiot.
    2. You’re an idiot.

  27. TerjeP, yes. The first one should not be subject to any law.
    The second statement, being presented as fact, would be something I might decide you need to prove in a court of law.
    Oh, and I apologise to X for any inferences drawn from my comment above. I do not really believe that X is a paedophile!

  28. When I say Kevin Rudd is an idiot I think it is quite reasonable for me to expect that people infer this to be my opinion. If I have to say “in my opinion” before every statement of opinion it is going to get quite tedious. In my opinion.

  29. “When I say Kevin Rudd is an idiot I think it is quite reasonable for me to expect that people infer this to be my opinion. If I have to say “in my opinion” before every statement of opinion it is going to get quite tedious. In my opinion.”

    But Kevin Rudd IS an idiot and we have enough evidence on this blog to be able to assert this as fact and not personal opinion or a blatant lie. Rudd would surely lose his defamation suit in this instance.

  30. Sinclair — nobody said that all theft involved violence. You’re making random and unrelated comments. Trees have green leaves.

    Jason & Terje — Fraud is a breach of contract (which is theft). Defamation is not a breach of a contract.

    Jason — nearly all of my post was a consequentialist argument. I just briefly made the self-evident point that anti-defamation laws violated freedom (ie voluntary & peaceful action) and then got dragged into that discussion because some people wanted to argue that “voluntary is involuntary”. I find the diversion painful too. Calm down big man. And I’m not the one playing word games. I’m one of the few that clearly defines terms and then uses words consistently. Doing otherwise makes discussion impossible. Finally, common law is good, but that doesn’t mean it’s perfect.

    DavidL — you don’t own your reputation. How many times must I explain this very simple point. I own my mind. I own my mind. I own my mind. Who owns my mind? That’s right… me! Yay for logic! You do not own my opinion of you.

    Also, just because violence & theft are bad, that doesn’t make them coercion. That is why I (and other libertarians) often write out in full that we are against “violence, coercion & theft” so that we cover all elements of non-voluntary behaviour (even that needs to be qualified by “initiation of…”). Fraud is theft by breach of contract. The semantic confusion is why I now prefer to simply use the terms “voluntary” and “involuntary”. Some blackmail is coercive. Some blackmail (give me $100 or I’ll tell your wife you’ve been cheating) should be legal because it’s voluntary and peaceful.

    http://dictionary.reference.com/browse/coercion

    SRL — your arguments comes down to “but.. but… but… NO!” I clearly explained that me talking is not aggressive, but that you putting me in jail is aggressive. Do you really not agree with this? Do you still think you own my opinion of you? If you use violence to shut me up, then it is YOU (not me) that has initiated violence. You have broken the non-aggression principle. Naughty, naughty.

    I notice again that people simply refuse to engage in parts of the debate they find uncomfortable. Like the likely consequence that once you give the government the power to restrict absolute free speech, they might not just use it as you prefer. And the ambiguity in any argument (saying “Kevin Rudd is an idiot” may breach the current law in some States). And the negative impact on free discussion. And the fact that there’s nearly no evidence that anti-defamation laws have actually provided any functional benefit.

    Instead, we have Jason getting sad because I used the word “freedom”, several people claiming they own my opinions, many people instinctively supporting the status quo without fully understanding the issue and SRL says that if I have to use violence to shut you up, then you caused the violence!! WTF?

  31. Nuke – are you accusing me of being a denialist? I know a good lawyer so be very, very careful. I deny nothing. I admit everything.

  32. As Nuke says… if you want to engage in robust criticism, you should do it quietly and make sure that not too many people hear you. That sort of “extreme” free speech is very naughty. Shhhh…. We must protect innocent victims like Kevin Rudd.

  33. Terje, I think your claims regarding your statement on Kevin Rudd are perfectly reasonable, and would pass the ‘reasonable person’ test in a court. If there was good legislation put in place it be used very rarely, as you’ve pointed out above, because proof is so hard. Having said that, it also means that the people convicted by it would be scumbags who were working to undermine peaceful society.

  34. John – fraud does not need to entail a breach of contract. If I tell the bank that my name is John Humphreys and I’m here to collect his money then assuming they comply what contract have I breached?

  35. “John – fraud does not need to entail a breach of contract. If I tell the bank that my name is John Humphreys and I’m here to collect his money then assuming they comply what contract have I breached?”

    That is theft.

  36. “That’s peaceful and voluntary, Terje. So that’s okay.”

    Its not voluntary. John owns the bank deposit and did not agree to give it to the John impersonator. The John impersonator misrepresented himself in order to take position of property he has no right to.

    “John – fraud does not need to entail a breach of contract. If I tell the bank that my name is John Humphreys and I’m here to collect his money then assuming they comply what contract have I breached?”

    You have willfully misrepresented yourself which is fundamental to contract.

  37. How is that so different to me mischaracterising someone for the purpose of depriving them of property, often so I can benefit at their expense.

    If I defame a rival business owner so I can increase my market share at their expense is it really that different?

  38. “If I defame a rival business owner so I can increase my market share at their expense is it really that different?”

    Nobody has any property rights to market share.

    “How is that so different to me mischaracterising someone for the purpose of depriving them of property, often so I can benefit at their expense.”

    You don’t already have property rights to the property you expect to receive in the future before the business you expect to happen even takes place. You cannot be “deprived” of property any other way then it actually being contractually owned by you and then removed from your possession involuntary.

  39. An example of fraud that is neither theft nor breach of contract would be to sell pills to pregnant woman with a false claim that the pills will help ensure the baby is a boy. If sold with a money back guarantee and that guarantee is honored (when girls are born) then the agreement is fulfilled but the seller still gains a financial advantage via deception.

  40. These days, the term ‘idiot’ can also be used affectionately, so it doesn’t seem like much of an insult. Now, ‘Labor-Voter’ is my new ultimate swear-word!

  41. Terje — Not all contracts have to be written, and indeed they do not have to be stated. When you eat at a restaurant there is a clear implicit contract implying that you’ll pay the price written on the menu next to your meal’s name. You don’t need to make a verbal or written agreement. If you eat and run, that is theft via breach of contract.

    I suggest the implicit contract going on between my imposter and the bank is “if I pass your requirements then you will give me the money”. One of those requirements is to be me. They are not me, so they have breached that contract. So that is theft via breach of contract.

    When I sit at my home and tell my friends (who are there voluntarily) that your name is pronounced “turg” then I am being a mean bastard, but I have not breached any contract — written, spoken or implicit. There has been no theft, no coercion, no violence and no involuntary action.

    Though of course… I would never say that. 🙂

  42. So John- are you leaving it up to the law makers to decide what passes as an implicit contract?

    Considering you don’t trust them to define “acceptable speech” why are you trusting them to define what kind of implicit agreements are accepted as contracts?

  43. OK, what about David L’s example of competing chilcare businesses where one party spreads misinformation that their competitor has previously been convicted of pedophilia including puting forward fabricated evidence, and there is measureable drop in their existing clients?

    What about MP Jackie Kelly’s husband who spread that pamphlett just prior to the last election claiming that Labor had endorsed the building of a new mega mosque in St Marys (which was a complete fabrication)?

    What about the guy who yells ‘fire’ in the old folks home to manipulate his granny to jump out the third story window so he can get his inheritance early?

  44. “Jason & Terje — Fraud is a breach of contract”

    No. Fraud is gaining advantage by deception. To protect against fraud, the innocent party may have to use violence. The guilty party forces them to use violence and hence that is an initiation of violence. Unless on planet Humphreys the non aggression principle means something different.

    “SRL — your arguments comes down to “but.. but… but… NO!” ”

    My argument John is actually that you don’t know what you’re talking about anymore.

  45. John – we have an implicit contract. It goes like this. You don’t call me turg and I don’t call you shit for brains. 😉

  46. My first thoughts (without being an expert in any way) was that defamtion draws some parallels to fraud and that it is consistent with freedom. I agree with comment 14.

    A defamation conviction as I understand it, requires proving both financial loss and also malice on the part of the alleged defamer. So I would have to prove I have been harmed in terms of physical, material possessions (loss of income) and I would have to show that it was intentional.

    These two requirements would restrict the majority of mis-use of the legislation IMO.
    Admittedly, the legal system is overly expensive. But libertarians should be able to identify many other ways to reduce costs.

    Does anyone have good examples of specific problems with modern defamtion law, or examples where the law was mis-used or abused? There’re probably quite a few if it’s anything like tort law.

    John, I think that law should be as objective as possible in all areas and that these days there are many areas of law where subjectivity has crept in or was never eradicated.

  47. Shem — the “reasonable people” tests are a necessary part of any legal system. No way to avoid that.

    Michael — I can find lifeboat examples that “prove” that no system of anything works… and that extends beyond politics. Society, sport, family, everything. And yes, there would be instances in a free society were people would say mean things and that would lead to sadness. I have never denied this (indeed, said it several times in my article) so I’m not sure why people keep bringing it up.

    With your “fire” example, that would be covered by implicit (or perhaps even explicit) contracts regarding use of private property. If you e-mailed “fire” or said “fire” in your property, or posted a letter saying “fire” then I think that should be perfectly legal. I don’t think the speech should be banned, but as I’ve said above, people will set rules of behaviour on their own property.

    With the “lost business” example, they didn’t actually lose anything. You don’t own money that people may or may not give you in the future. You don’t own the right to have somebody trade with you. That is a socialist fallacy. If “lack of gain from future trade” counts as “theft” then free trade involves theft because it involves “loss of gain from future trade” for inefficient local producers. I made all of this clear in the original article.

    Also… (not sure if anybody actually read my article) … I already provided a perfectly good alternative mechanism for people to defend their reputations (and consequently destroy the reputation of your accuser). And I pointed out that anti-defamation laws are effectively out of reach for most people because of time & money… so whatever you think the horrible outcomes would be without the laws, we already have that outcome for most people.

    SRL — your very confused about the non-aggression principle. It means that a person should not initiate violence, coercion or theft (as I’ve explained elsewhere). Fraud is theft by breach of contract. Saying mean things is not violence, it is not a threat of violence and it is not theft. If I say “SRL is a fucking moron and is failing logic 101” I have not initiated violence, coercion or theft against you. I have explained this several times. You have offered no logical response. Here’s a tip: voluntary = voluntary & involuntary = involuntary. Seriously think about that for a while and tell me which form of human behaviour you prefer. Commie. 😉

    Michael — politicians don’t use anti-defamation laws anyway (because they would likely lose votes from it), so you can see the result already. And their speech in parliament is exempt from anti-defamation laws… probably because somebody recognised it’s a good thing for politicians to be able to talk freely and not be shut up out of fear of litigation.

    Terje — that’s an explicit contract now… 🙂

    TimR — the point is that there’s no need for the subjectivity here. Anti-defamation laws have a cost, no identifiable benefit, and they are a restriction on voluntary action.

    Sex has “parallels” to rape, but they are different in one very important way… one is voluntary and the other is involuntary. Fraud is theft by breach of contract (involuntary). Defamation is saying things (voluntary). If you want to ban a voluntary action, then you better have a bloody good reason.

  48. John, you keep saying defamation is about saying ‘mean’ things, but that’s missing the point. It’s fine to say something mean so long as it’s obviously your opinion or a point of fact. It is another matter to make a statement and present it as truth when you know it isn’t, knowing this will be to the detriment of someone else. That’s not just saying something mean.

    I know you disagree with the whole social contract idea; that there’s any sort of agreement between us. I acknowledge the terms of this agreement are not arbitrary like a normal contract, they are determined through reason, and specifically they’re life, liberty and property. But that still does not negate the fact that you and I both agree to offer these things to each other. Plenty of people don’t offer these things to us and we shouldn’t afford these values back to them ex gratia. We afford them to each other on the basis that, by doing this, we can eliminate the chance of our interactions producing bad outcomes for either of us, and maximise the chances by which we can complement each other to produce mutually good outcomes. That’s why societies that have these values do so well. If you are working to undermine me through devious plans and the intentional and conscious spreading of misinformation then you undermine this agreement and the deal is off. The base position we have is that if our interaction can not work to mutual benefit we leave each other alone. Making a conscious effort to make my life worse is not leaving me alone. So the deal is off, and I mean all of it. I don’t care if you are trying to undermine through violence, theft, fraud or manipulation of the truth. You are deliberately working to achieve my detriment and I’m going to stop you. If we want to be civilised we should do this through law. And we both know if there is no law that kind of behaviour will beget violence, and it’s perfectly reasonable that it should just as stealing with beget violence, and if there is no law to deal with it, it’s perfectly reasonable that it should.

    Looking at my examples above:

    1. Old folks home and shouting ‘fire’: the right to life supersedes the right to property. If you want to put a rule on your property that you can arbitrarily kill me I agree that’s fine, but it’s not implicit, you need to make it absolutely clear before I enter your property (and of course I won’t). You can bet everybody in that old folks home assumes there is an implicit rule that you won’t use misinformation to try to kill them. You can bet everyone in the public space outside also believes this implicit rule exists. You can bet everyone, everywhere believes this rule exists. So you can take the theoretical position that property rights can be used to resolve this but the fact is every property right everywhere has as part of it’s implicit underpinnings that you won’t use misinformation to kill the people on that property. So it’s a silly position that doesn’t really mean anything.

    2. Election false pamphlets: elections are all about people making decisions on information to elect someone. You destroy this process – which underpins democracy, an essential part of the public aspect of libertarianism – by permitting misinformation to be part of the mix.

    3. Lost childcare business: business is all about relationships to mutual benefit and often benefit to the wider community. Misinformation destroys positive relationships and creates bad ones. All of the other principles in libertarianism are about relationships to mutual benefit, this is totally about a relationship whereby one person profits at the cost of another, and it’s not true to say it’s voluntary, and as for the community, misinformation could destroy a whole market that would otherwise function fine and provide a valuable service.

    Just like you stated above, Common Law is not perfect but it is on the right track, so to is standard libertarian theory. Sometimes you’ve got to go back to first principles to advance that theory higher.

  49. Michael – you accept that saying mean things is okay as long as it’s clearly opinion or else true. However if somebody calls me a rude name it is generally clear that they are working to rattle me and undermine me. As such I don’t get your distinction. If defamation is wrong then so is being just plain nasty with words. The objective of both actions is to undermine. I’d agree that both are nasty but I’m not convinced that either should be subject to legal remedy.

  50. There’s a big difference between just saying mean things, and accusing someone of an act that they did not committ.

    E.G. Saying “John Humphreys is an arsehole” is quite obviously an opinion.

    Saying

    “John Humphreys is a paedophile.”
    “John Humphreys shot JFK”
    or “John Humphreys fucks goats”

    is a statement of an untrue fact (the paedophile part anyway) which could cause real harm to reputation and is in fact a form of fraud.

    They are 2 very different situations if you ask me.

  51. “If defamation is wrong then so is being just plain nasty with words. ”

    So is adultery. No libertarian is seriously going to suggest that adultery should be a crime. At worst, it may be a tort. These comparisons are a very poor way of comparing mores and laws and judging which laws should be kept.

    The law isn’t necessarily about morality. It must defend life, liberty or property.

    John wants to make defamation a non-tort. I think John is wrong on first principles and his understanding of fraud and contract are need a brush up. A tort of this nature however leans towards criminal negligence and fraudulent behaviour. Any legislative change that made defamation a tort only will be artificial as long as criminal negligence is recognised at common law.

  52. SRL — obviously I’m not talking about the current law, I’m talking about philosophy. I’m not saying “the current laws says fraud is theft by breach of contract”, I’m saying “according to libertarian metaphysics, fraud should be against the law because it is theft by way of breach of contract”. I thought that was obvious, but sorry if I wasn’t clear enough.

    Michael — I keep talking about “mean things” because people keep using the argument “but you hurt me”. Yes, yes, yes… I hurt you. Toughen up princess. You have no god-given right not to be sad, and you have no god-given right to guaranteed future trade.

    I agree that you and I respect each other’s self-ownership (what you call life, liberty & property), though I disagree with your stated reason. But that’s a different story. But my “working to undermine you” is not a breach of your self-ownership. It is not a breach of your life, liberty or property. It is entirely voluntary. It is not an initiation of violence, coercion or theft. It has none of the properties of a crime… except that you don’t like it.

    Once you allow these arbitrary additional laws against generic “badness” then you are opening up the government to ban other arbitrary generic “badnesses”, such as anti-vilification laws.

    Your new definition of “badness” seems to be “working to undermine your welfare”. That leads straight to socialism. Me doing your job better than you, leading to you being fired, will undermine your welfare. I’m sorry… but you have no god-given right to welfare, and no god-given right to know that I’m going to help you. You have self-ownership, not John-ownership. That doesn’t guarantee a good outcome, and nobody else has a responsibility to give you a good outcome. A more robust definition of deontological “badness” is “is the action voluntary/involuntary”.

    I think you’re confusing deontology (the morality of an act, holding consequences constant) with consequentialism (the morality of an outcome, holding the act constant). You can’t keep randomly flicking back and forward between the two moral streams as convenient.

    Freedom is a deontological concept. It means “voluntary behaviour, no matter the outcome”. You can’t then say “that isn’t freedom because the outcome is bad”. That simply misunderstands the word “freedom”.

    1. I totally agree (except the part where you say it’s silly).

    2. Politicians always lie, and there is effectively no anti-defamation laws there anyway as the incentive to use is too low and everybody knows it (note that the Jacky Kelly thing existed under *your* preferred laws).

    3. Boo hoo… somebody is sad. But it is entirely voluntary. Voluntary has a meaning and the meaning is not “people aren’t sad”. Though as stated previously, it’s entirely unclear that anti-defamation laws actually achieve anything anyway (except to restrict free speech and bias the playing field in favour of the powerful).

    Yobbo — I’ve already explained at great length why saying “you enjoy Thai lady-boys” is not a form of fraud. I haven’t tried to exchange anything with you. You haven’t lost any property. I haven’t entered a contract with you. I have not initiated violence, coercion or theft. My actions were entirely voluntary. There is a significant and fundamental distinction between “voluntary” and “involuntary” behaviour that everybody should be able to understand. Defamation is voluntary. Fraud is involuntary. They are not the same.

    SRL — Why shouldn’t adultery be illegal? Work out your answer from first principles, not from current law. If we only argued based on current law, then we could never argue for a change in the law.

  53. If you sell a business, included in the sale is an amount for goodwill which is primarily based on the company’s reputation. So one does own one’s own reputation because you can sell it. As “the best defence against a bad reputation is to be good” implies, one invests time and effort in developing a good reputation.

    If you reduce the value of someone’s reputation maliciously by spreading lies you know to be such (or should reasonably know to be such) I don’t think it is unreasonable that the person can sue you for the financial loss.

    Goodwill as an intangible asset is no different from a tangible asset. If I have something to sell, I own the item, but I don’t determine its value, that is determined by the opinion of others. They own their opinion but they don’t own the item. If someone reduces the value of the item by influencing other people’s opinions negatively about it by spreading false claims, e.g. that it does not do what it is supposed to do, I have recourse against that person in law.

  54. “The consequence is an uneven playing field where larger organisations and rich people have an extra advantage over the rest of us.”

    That’s true in virtually all aspects of life, boo hoo, get over it.

  55. “SRL — obviously I’m not talking about the current law, I’m talking about philosophy.”

    Are you going to change the philosophy of the law as it is taught and applied? What you’re saying about fraud and contract is only true in certain circumstances. As a generality it is incorrect, unless you change what fraud and contracts entail from the textbook to judgment.

    “SRL — Why shouldn’t adultery be illegal? Work out your answer from first principles, not from current law. If we only argued based on current law, then we could never argue for a change in the law.”

    I inferred it could be a breach of contract if we were free from state control of marriage. A tort and nothing more. I believe that’s consistent from first principles and not current law.

  56. DocBud – a chemist business might also be worth more because there is a medical centre next door. And it might sell for a higher price because of that fact. However the owner of the chemist business has no claim against the medical centre owner if they relocate. Just because something contributes to the worth of an item doesn’t mean owning that item makes you the owner of those external factors. Umbrellas are worth more on rainy days but owning an umbrella shop doesn’t mean you own the weather.

  57. I’m going to err on the side of non-interventionism on this one. Government screws most things up, I doubt they could be trusted with my reputation

  58. TerjeP,

    I never said that you owned the external factors. My point was to differentiate between one’s reputation which one owns just as own might own an item, and the opinions of others that confer value on your reputation or the item which one does not own. If your reputation is your property, albeit intangible, then someone who harms your reputation is violating your property rights.

  59. DocBud – I don’t think you do own your reputation. My point was that simply because a business with a good reputation is worth more does not mean that the reputation is property. Lots of things effect the value of a business (or an item) but that does not make those factors property.

  60. I think it’s important to distinguish between the idea of minimising legislation because the government will probably fuck it up (which I think is a perfectly good rule-of-thumb) and using reason to objectively determine what the optimun or correct law should be.

    I appreciate John holds to his position it is rational within itself, but it doesn’t account for all aspects of the human condition. You only need to deal in the black/grey market to know that better business is done, and better outcomes achieved, when certain principles are openly upheld. It’s also clear that reputation doesn’t spring forth and result in better relationships being achieved.

    Property rights exist without the help of law as well, but we get a better outcome when we legislate them into place (and a worse outcome when we pass bad legislation undermining them – no law really is better than bad law). People who deliberately and knowingly misrepresent facts to the detriment of others would be dealt with without law as well, but better outcomes are achieved when we legislate against this happening.

    Libertarian theory is not set in stone, and there is no evidence to suggest that the standard canons are necessarily complete and all that will ever be derived. This area, like the area of intellectual property, has more to come. I think we’ll see a bit of Schopenhauer’s quote ‘All truth passes through three states………..’

  61. DocBud — you don’t own my mind. The end. Stop repeating absurdly stupid points. I’m not against rich people having economic power. I’m against the government changing the playing field to artificially help one group.

    SRL — if there is any part of the concepts of “contract” or “breach of contract” or “theft” or “fraud” you want me to explain again, say which one. I think I’ve explained it well enough, but if you ask nicely you might not exceed my patience. Forget your law textbook and build you position from first principles. What is your “first principle” that means adultery (short of private marriage) should be legal? Is it that people should be allowed to act so long as their action is voluntarily? (Hint: it should be). Oh, and you’re spelling your name wrong.

    Michael — most of my original argument was consequentialist anyway, so I agree the primary issue is whether the government is going to effectively improve society. We are only getting side-tracked on these absurd deontelogical discussions because people keep saying that voluntary is involuntary, or that they own my mind, or that they have a god-given right to future gains from trade. So I have to slap down that silliness. But ultimately, the consequences matter. So ultimately (as you say) there is no “set in stone” libertarian position, but change depending on the assessed consequences of the policy.

    And as I’ve repeated several times (and nobody has engaged) one very obvious consequence is that if you tell the government they can make rules regarding speech (even naughty mean speech that makes you lose future trade) then they will inevitably expand their restrictive powers… as they have done with anti-vilification laws.

    My position accounts for all aspects of human condition. I’m not unaware that people are mean. I’ve stated many many times. Check the original article. I also explain in the original how reputations are actually built and maintained in reality… not just in theory of magical benign-government-land. The FACT is that for many people anti-defamation laws effectively don’t exist… and in places where they don’t there is no horrible break down of civilisation. No evidence of a serious problem, and perfectly good business (so long as contracts are enforced). And I already provided a potential voluntary solution for any occasional defamation disagreement. Sadly, many people here seem to reject the voluntary solution. 😦

    Your argument that anti-defamation law provides a benefit was simply to assert it. Not good enough. The burden of proof is on you as you are the one wanting the government to over-ride voluntary behaviour.

  62. TerjeP,

    I disagree, if I can sell the goodwill of a company, I must own it.

    John,

    What part of “They own their opinion but they don’t own the item” and “the opinions of others that confer value on your reputation or the item which one does not own” is confusing you?

  63. PS

    “For people talking about or writing about large organisations or rich people, the threat of being sued (even if there is only a 10% chance of being found guilty) is a strong incentive not to say anything negative.”

    Commie.

  64. And as I’ve repeated several times (and nobody has engaged) one very obvious consequence is that if you tell the government they can make rules regarding speech (even naughty mean speech that makes you lose future trade) then they will inevitably expand their restrictive powers… as they have done with anti-vilification laws.

    I don’t see any reason to engage it. It goes without saying. Like I said above ‘ the idea of minimising legislation because the government will probably fuck it up (which I think is a perfectly good rule-of-thumb) .’ That’s not what we’re doing here, we’re rationally determining what good law should be.

    Your argument that anti-defamation law provides a benefit was simply to assert it.

    Not really. My argument was an effort to determine why it rationally should lead to better outcomes. As I said above, there is more here than meets the standard libertarian canons.

    Try this one:

    A person finds their family murdered. For my own benefit I use this opportunity to tell that person a certain innocent party did the deed on his family. He thanks me, and goes and kills the innocent party believing he is extracting revenge. Am I complicit in the murder of the innocent party? Am I guilty of anything?

  65. Here’s another one:

    I said this:

    Old folks home and shouting ‘fire’: the right to life supersedes the right to property. If you want to put a rule on your property that you can arbitrarily kill me I agree that’s fine, but it’s not implicit, you need to make it absolutely clear before I enter your property (and of course I won’t). You can bet everybody in that old folks home assumes there is an implicit rule that you won’t use misinformation to try to kill them. You can bet everyone in the public space outside also believes this implicit rule exists. You can bet everyone, everywhere believes this rule exists. So you can take the theoretical position that property rights can be used to resolve this but the fact is every property right everywhere has as part of it’s implicit underpinnings that you won’t use misinformation to kill the people on that property. So it’s a silly position that doesn’t really mean anything./

    You said this:

    I totally agree (except the part where you say it’s silly).

    So you agree the rule ‘you can’t use misinformation to kill somebody through manipulation even though you’re not forcing anybody to do anything’ is universal. So if someone does it, are they guilty of something?

  66. DocBud — your reputation is my (and other people’s) opinion. That opinion can either be owned by the person having the opinion, or the object of the opinion, but not both. I think each person owns their own opinion — do you agree?

    The fact that you can make money from your good reputation is obvious. That’s why people have an incentive to build a good reputation. But that doesn’t mean you own my opinion. Likewise (as Terje points out) you can make money from having your business near complimentary businesses. That’s why people have an incentive to put their business near complimentary businesses. But that doesn’t mean you own a right to force your neighbour to stay where they currently are. We are often impacted by the people around us… but that doesn’t mean we own the people around us.

    SRL — it’s not communist to oppose the government creating a biased playing field. I fully agree that I want to change many laws, and indeed the way people think about laws.

    Michael — that’s a good thought experiment, but I note that we’re now not talking about defamation. There is another long discussion to be had about how you define conspiracy to commit a crime. But I’ll leave that for another day…

  67. Sorry Michael — I didn’t read you correctly. I agree that implicit contract exists on private property. There is no implicit contract between you and me when we are on public property (which is ultimately a moot point because I don’t think there should be public property).

    I have only ever supported free speech using your own property. I have never argued that you have a right to say what you like using my property. The question for you is whether I should be allowed to say what I like, in my house, using only my property (or otherwise using another house & property with the permission of the owner).

  68. Michael — you’re once again confusing deontological with consequentialist reasoning. The detriment and benefit are consequences. Talking is an action. When determining whether an action is voluntary you need to only judge the action, not the consequence.

  69. Consequence (to the individual) is all that matters. The idea that we can argue about some absolute value regardless of consequence is not valid. Even freedom is only justified by consequence via causality. The fact you say something is voluntary is, in itself, not sufficient. Its very compelling, but its not sufficient.

    The whole point is that the consequence leads to a determination that a crime has been committed. Now who’s guilty of it and why?

  70. BTW, I understand your property position, but it will never be fully implementable so it’s not a justification on its own. That’s why we say ‘life, liberty and property’ and not just ‘property’.

  71. DocBud – your entitled to your opinion but your logic does not stack up. Land is routinely sold at a higher price because there is a nice view. That does not mean land owners own the view.

  72. No, I’m still not certain (but still leaning toward ‘not property’)! You didn’t do anything about the view, it was just there because of good luck, but you have utilised your labours to build a reputation. If you’ve put your own labour in the mix, does that give you extra rights over it, just like if you put your labour into material things?

  73. Terje – you’re idea is only right with that analogy. What about dumping crap on your property or near enough – you may lose the “use and enjoyment” of your property. That analogy is also more valid than the one you’re using.

    Yes I am aware of the difference of what ought and is with regard to the law. I don’t agree we should go there.

    Furthermore, the basis for changing the law John has isn’t simple. It is fundamental and far reaching. We just can’t do it now unless we want defamation to be separate from the rest of our laws.

  74. TerjeP,

    As it happens, we live in a cliff top position with a magic view of the Coral Sea and the southern Whitsundays. We pay for this through rates that are twice those of the poor sods on the other side of the street who only have unrestricted views of the range in the distance. Of course we own the view, it can only be seen from our property. Anyone using our view without our permission is trespassing and violating our property rights.

    Our rates are so high because the land value is so high. The land value is so high because, in the opinion of others, our land is highly desirable. We don’t own those opinions that make the land so valuable, but we own the land. In the last approximately 7 years, our property has increased in value by about 400%. Some of that is improvements, but most is due to other people’s opinions of the value of the property.

    My point, the value of (virtually) anything you own is not determined by your ownership but by the unowned opinion of others as to its value. if this is true of tangible assets, why should it not be true for intangible ones?

  75. DocBud… do you think you have the right to prevent people in front of you from building a high building that ruins your view *on their own property*?

    We are always impacted by the actions of others and the world around us, but that doesn’t mean we “own” in any meaningful sense those actions or those people or their property. You do not own my mind. The end.

    Michael — your understanding of deontological and consequentialist philosophy seems quite fluffy. Trying to convince me of the importance of consequentialist arguments is strange given I just said that were very important and spent most of my article addresses consequences. Trying to deny any value of deontological arguments is weird. Do you not think that “voluntary” is better than “involuntary”, all else being equal? Because those are processes and not outcomes. It is perfectly legitimate to consider both processes and outcomes. In common language, to consider both means and ends.

    Do you not think there is any inherent value in controlling your own life, even if it lead to the exact same outcome as being controlled by other people? Personally, I think controlling your own destiny is central to what it means to be human, irrespective of the outcome.

    But anyway… if you’re totally uninterested in deontology, then it makes no sense for you to be engaging me with discussions about whether actions are voluntary (a deontological concept) or in violation of freedom (a deontological concept). The fact that something involves violence, coercion or theft should be, a priori, irrelevant to you… so your argument would more honestly be described as: “I don’t care whether anti-defamation laws violate freedom or not, I think they’re good because I think they make the world a better place.”

    Though to be complete you should add “I have no reason for my belief in the benefit and I am aware that there is a cost, and that the government will probably screw it up anyway… but I’ll just assert a big benefit and cross my fingers”.

    But that’s just my paraphrasing… 🙂

  76. SRL — dumping crap on my property is the use of my property without my permission. That is *involuntary*. There’s that magic word. Dumping crap on your property near my property may make me sad, but it is perfectly *voluntary* and so while it might be mean, it is consistent with freedom and private property.

    Dumping crap on your own property which makes your neighbours sad is a direct analogy with defamation. Fundamentally, you do not “own” the right to look at my lawn without rubbish on it, and you don’t “own” my opinion. Those things can make you happy or sad (and potentially make you money), but you don’t own them.

    Unless you’re defining “ownership” as being “any time a human likes something”, which is getting pretty close to the communist definition, and rational discussion is becoming difficult.

  77. “Dumping crap on your property near my property may make me sad, but it is perfectly *voluntary* and so while it might be mean, it is consistent with freedom and private property.”

    I think your 2. and 3. are wrong.

    “Unless you’re defining “ownership” as being “any time a human likes something”, which is getting pretty close to the communist definition, and rational discussion is becoming difficult.”

    Again John, you are proposing a year zero for our legal system.

  78. You think doing what I want with my own property is inconsistent with the concept of private property? Perhaps I should only be allowed to use my property for the “public good”? 😦

  79. “We are always impacted by the actions of others and the world around us, but that doesn’t mean we “own” in any meaningful sense those actions or those people or their property. You do not own my mind. The end.”

    Despite your repetition, John, at no point have I suggested that I own other people’s opinions. My point is that other people’s opinions, which they own, determine the value of things I own. Vacant land up here with a view of the ocean costs about $1 million. Same size plots without ocean views cost about $300 000. Should someone build in front of us (they’d have to do it below the high water line as that is our boundary) we’d lose about $700 000 off the value of our property for the loss of the view. That is our loss, but it is determined by the opinions of others (which we don’t own) who set the value for the loss of a view.

    I’m off into the bush until Friday, sans an internet connection. Continue having fun.

  80. … so your argument would more honestly be described as: “I don’t care whether anti-defamation laws violate freedom or not, I think they’re good because I think they make the world a better place.”

    Overall, yes, this is the case – every deontological position is really justified by its consequences, or every moral position needs to be justified by a utilitarian conclusion. It’s just that if you look at the nature of human beings in the world as it exists, look at what increases human quality of life, and apply inductive reasoning, the conclusion is almost always freedom.

    And I am saying on defamation laws the concept of voluntary behaviour as described by you doesn’t alway sit logically with libertarian theory. I suspect there is a position here which affirms defamation laws and is logically consistent with the other major libertarian canons. I’m not aware of any other position in libertarian theory that upholds the right of one person to benefit themselves through deceitful, non-productive, knowingly harmful behaviour via the intentional undermining of productive, decent people acting in good faith. The basis of utilising the best of the human spirit to deliver the highest quality of life possible is the basis for libertarian theory – your simple ‘it’s the freedom, stupid’ doesn’t add up.

  81. The defamation laws are inadequate and should be tossed in the garbage.

    If all the defamation laws did is protect an individual from accusations, insults and other adverse communication which are untrue and have destroyed there reputations to the point where they are isolated from the benefit of trading with others or excluded from job opportunities, that would be great. However the defamation laws are a inappropriate mechanism for upholding libertarian values and do much more than just provide recourse on such a principles. This is because the measure of compensation is based on reputation rather than damage personally done to an innocent individual. The importance of reputation is over rated and overpriced particularly in the courts were the high fliers play. “My feelings are hurt and I deserve millions for it” that’s just BS.

    I agree with JH that an individual can simply choose to ignore the fact that others think bad of him/her. So should the law.

    The other issue is that you can never trust the government to generate adequate laws on such matters. If anything, such laws are more likely to assist the state in muzzling its employees (state services act) or citizens. Defamatory action as JH pointed out is expensive and prohibitive to those not so financially well off.

    Personally, I would want some recourse if someone was deliberately setting out to destroy my business in its current form by saying untrue things about my operations. I would want compensation to the value of my measurable losses, but I wouldn’t (shouldn’t) expect compensation for my hurt feelings and perceived lesser reputation.

    However I don’t think the defamation laws will be changed anytime soon. So were stuck with laws that are far from libertarian and useful only to those who can afford to be bullies. That includes the state.

  82. It might be worth listing some recent defamation cases and outlining how society would be worse off if these cases could not be brought to court.

  83. “It might be worth listing some recent defamation cases and outlining how society would be worse off if these cases could not be brought to court.”

    I’ve got an idea: he who asserts must prove.

    “I would want compensation to the value of my measurable losses, but I wouldn’t (shouldn’t) expect compensation for my hurt feelings and perceived lesser reputation.”

    Your losses arise from your lesser reputation, discounted into the future. Please make sense in further comments.

  84. Michael Sutcliffe, I am a libertarian because I want to reduce the role of all governments in my affairs. I think this will ultimately result in a better society, but my main reason is to have more cash for myself, and to have more options for myself. The aim of any libertarian society should be to expand the freedoms of all individuals, with social benefits being a secondary aim.
    I still believe that expressing opinions should not be criminalised, so long as you make it clear that it is an opinion, either at the time, or when asked later.
    If you assert something is a fact, and someone else takes offence, you should be prepared to prove that what you said has proof to support your assertion.

  85. I think this will ultimately result in a better society, but my main reason is to have more cash for myself, and to have more options for myself. The aim of any libertarian society should be to expand the freedoms of all individuals, with social benefits being a secondary aim.

    Nuke, would you still feel this way if every time you got more cash and options you were unhappy and the only way you could get good outcomes for yourself was through sheer luck, if at all?

  86. SRL — how about the person promoting a government restriction on voluntary action proves their case.

    And are you really denying that incentives matter? That’s amazing. Good luck with that.

  87. DocBud — your reputation is my opinion. If you say you “own” your reputation then you have directly said you own my mind. Stop it. Get out of my head damn evil spirit. Of course my opinion impacts on you. I’ve said that exactly 45,251 times (no exaggeration) and I’m glad you finally agree with me.

    Michael — you can’t say “deontological arguments are determined by consequences”. You just can’t say it. If you do, your head explodes. It’s like saying “black is white”. Or “at the end of the truck eats butterfly woof woof squiggle can not find a teeth mark backwards”. It just doesn’t make sense. Deontology is defined as the morality of an action irrespective of the consequence. That’s the definition.

  88. Yes, John, and I’m saying there is no absolute value other than the act of reasoning itself. I’m saying you can derive an ‘ought’ from an ‘is’, in fact, I’m saying it’s the only way to justify an ‘ought’.

  89. “SRL — how about the person promoting a government restriction on voluntary action proves their case.”

    It is clear that defamation results in economic loss due to dishonesty and maliciousness. Their customers/colleagues/friends have not acted voluntarily. Voluntary action has the presumption of a lack of deception. This is intrinsic in our legal system, and has a strong liberal bent to it. in Can you tell me why this is a bad premise?

    That said, I’ve made the case for defamation. Now Terje can prove that society has made a loss in any of the cases he can find.

    “And are you really denying that incentives matter? That’s amazing. Good luck with that.”

    No, but so what? Rich kids mightn’t have an incentive to study hard, what are you going to do, ban inheritances?

    Besides, with no legal remedy, if people can say whatever they like, I expect a more violent society. Clearly I expect unintended consequences of alerting incentives.

  90. BTW, I’ve never said “deontological arguments are determined by consequences” because that would have a dubious meaning and be quite confusing. I’m saying a deontological position is justified by the resulting consequences.

  91. SRL

    “Defamatory action as JH pointed out is expensive and prohibitive to those not so financially well off. ”

    You said

    Commie”

    Why ?

    and

    “I would want compensation to the value of my measurable losses, but I wouldn’t (shouldn’t) expect compensation for my hurt feelings and perceived lesser reputation.”

    you said

    Your losses arise from your lesser reputation, discounted into the future. Please make sense in further comments.

    I think Insurance policies would better value the price of “future” losses associated with defamation (lesser reputation) than some law backed by the state that rules on and prices future percieved losses. The state or some other independent entity could rule on the defamatory action and the insurance company could pay. This way you could value your percieved reputation and pay to protect it.

  92. Michael — you’re done it again. Your head just exploded. A deontological position must, by definition, be justified without reference to consequence. Otherwise it’s not a deontological position!! If you insist that no words have any meanings then schmerganiflopskibobble to you.

    I agree that reason is the only *way* to come to a conclusion. That’s the answer to the *epistemological* question. The concept of “reason” is not a deontological concept.

    (Ironically, if you continue to not understand deontology, despite my clear explanations and the simplicity of the concept, are you sure that you’re actually using that “reason” that you so much admire?) 🙂

    SRL — you’re really struggle with basic libertarian philosophy. You can’t make a deontological judgement based on the outcome. You just can’t. As I explained (400 times) freedom is a deontological concept. So the fact that there is a sadness at the end doesn’t violate freedom. Freedom doesn’t mean “you will be happy”.

    If you want to violate the assumption for freedom (voluntary human interaction), then the burden of proof rests with you.

    Saying mean things about you, on my property, and using only my property, and only with people who are voluntarily there, is entirely voluntary by definition. It is consistent with freedom, no matter how sad you get. Even if you lose all your money, your family leaves you, you become hopelessly depressed and eat yourself into being fat and dying young… my *completely voluntary* actions are still *completely voluntary*. Concentrate really hard, and force yourself to stop being confused about “means” (deontology) and “ends” (consequentialism). Because if you can’t use these concepts properly, then I can’t help you.

    You can’t redefine “voluntary” to mean “whatever is convenient to win an argument”. It has a meaning. And, as a deontological concept, the meaning has nothing to do with the outcome of the action. So stop sooking about “bad outcomes”. Commie.

    I say that incentives matter because you seemed to deny that there is a cost from anti-defamation laws. There clearly is so long as you assume that incentives matter. I’m not the one wanting to ban anything. You are. Commie.

    Now, do you want to go back to the old “I own your mind” argument. Commie.

    Or how about “freedom means the government gives me everything I want” argument. Commie.

    Or maybe the “I have a god-given right to the benefits of future trade” argument. Commie.

    Now… I don’t mind you trying to make an argument in favour of your favourite government schemes and bureaucratic programs. But understand that if you want to violate my self-ownership (and you clearly do) then the burden of proof is on you.

  93. John – explain how my assumption of honesty for voluntary action is incorrect. Then you’ll “win” this argument. You’ll also alter what consent means and need to strike out certain classes of sexual assault. Does this help “self ownership”.

    This is fairly generous considering I’ve given your desire to rewrite the fundamental definitions of what fraud and contracts are.

    I really don’t see how saying “you are free to express yourself, but not to maliciously lie about another party to cause them economic loss” actually violates self ownership. What right do you have to cause economic loss to others through deceit?

    “Now, do you want to go back to the old “I own your mind” argument. Commie.”

    No John, you didn’t understand the IP/squatter analogy [i.e bad] being compared to the defamation/*reverse fraud* [i.e good] analogy and mischaracterised this argument of mine.

    “Or maybe the “I have a god-given right to the benefits of future trade” argument. Commie.”

    Um…why not? What gives you the right to spread disinformation about someone to cause them economic loss? I’m interested to know how this doesn’t diminish their self ownership or of their customers.

    “Or how about “freedom means the government gives me everything I want” argument. Commie.”

    WTF?

    “I’m not the one wanting to ban anything. You are. Commie.”

    Save for people having excellent legal representation as an incentive to earn a higher income! If it’s not a concern then don’t make a big deal over it.

  94. Michael — that’s an amazing statement. It’s fine for you to be uninterested in deontology. I said as much earlier. But a belief in deontological morality has nothing to do with religion. It seems as though you’ve never heard of these standard philosophical concepts before, so perhaps you should be slower at throwing stones.

    SRL — lying is voluntary because all active participants in lying (ie the speaker) is engaged by their own free will. That’s what voluntary means.

    Under total freedom, I have the right to “cause” (sic) economic damage to you by refusing to buy things from you. Clearly, freedom involves the ability to refuse to trade, which denies the other person the benefits from that trade.

    In a fully free world, the sentence “you are free to express yourself using your own property” should not have the word “but” after it. Any restriction on that freedom needs to be defended on consequentialist grounds, as you are the person violating the speakers self-ownership (ie their right to use themselves and their property as they see fit).

    Now you actually seem to endorse the “I have a right to the benefits of future trade” argument!! Wow. Really shot yourself in the foot there. Here’s a hint… under freedom, trade should be voluntary. That means either person has the right to NOT trade with you, which takes away your benefit from trade.

    Also… don’t you see the danger in giving the government the power to prevent voluntary speech you don’t like. When you say “I believe in free speech, but…” how can you be sure the government will always use the same “but…” that you want? Already they have introduced anti-vilification laws, using the exact arguments that you provide. I understand that there is a superficial appeal to a law against being so mean that a person loses future trade… but I really think you should give some careful consideration to the can of worms you’re opening up. It’s safer to just stick to absolute freedom of speech, with no “but”.

  95. On the balance I think anti-defamation tort is morally justifiable from a libertarian viewpoint depending on one’s view of freedom.

    John believes in freedom as being solely non-violence. Others, such as myself, believe it also entails other ideas such as consent and non-coercion (using the broader definition of the word that is used to include manipulation). It’s important I think to note that freedom relying on consent is not at all consequentialist, but it does add a knowledge and power pre-requisite that doesn’t exist in John’s account of freedom.

    Regardless of the morality of said laws, I think they are ineffective. When a government program is ineffective, even if it is morally justifiable, it is no longer justified.

    If laws against murder no longer protected against it and afforded a particular group some kind of privilege then we’d be better off without laws against murder.

    Laws that do not meet their objectives only serve to limit freedom.

    Are anti-defamation laws effective? Because we’re never going to agree on if they are morally justifiable until we agree on the definition of freedom.

  96. It seems as though you’ve never heard of these standard philosophical concepts before, so perhaps you should be slower at throwing stones.

    Let’s just step back and consider a few facts here:

    I’ve tried to engage you on the ‘is ought’ argument but it seems to have gone straight over your head. When I suggested that choosing to make all decisions based solely on reason, including moral ones, was a deontological position, that didn’t seem to click either. mmmmm…..

    What about these little doosies:

    You think that even though a moral system will logically flow to bad outcomes – which you acknowledge and ‘justify’ with ‘boo hoo, people are sad’! – people should still accept it if they know what’s good for them! And you believe they will accept it acknowledging?! And you believe this aspect of your model society will be functional and stable despite these conclusions?!

    You think by claiming something has a ‘deontological morality’ based on your concept of self-ownership as something that is ‘fundamentally what it means to be human’ is sufficient to justify a position regardless of the outcome, and no other external ideas can be thrown into the mix lest the system become corrupted. Mate, I’ve argued with closed-system objectivists before but you’re the first closed-system libertarian.

  97. Michael, your philosophy sounds more like Hedonism, not Libertarianism!
    As a philosophical libertarian, I think that we should go for long-term happiness. For instance, though this denies me immediate pleasure, I don’t use prostitutes. This also denies them a client (more unhappiness). The long-term gain in money and self-respect outweighs the short-term pleasure I might get.
    Actually, you seem to be confusing libertarianism with libertinism. I’m sure the libertines have their own blog, when they can be bothered to get out of bed. Good luck!

  98. Shem, how do you define “ineffective”?

    “If laws against murder no longer protected against it…..”
    Murders happen all the time.

    “Laws that do not meet their objectives only serve to limit freedom” – surely this would depend on the law.

    Objective law can be determined based on the fundamentals of human nature, requirements for living etc. In this sense, justice is a valid and objective concept and therefore justice is a basic component to good legal science.
    Consequentialist thinking often implies collectivism in my experience when we are refering to the consequences to society as a whole. But society itself doesn’t exist. Society is a sum of individuals “the smallest minority”. I think legal science (like all science) should base itself on empirical reality (of course I do realise laws themselves exist because we live in groups/society).

    I also think consequentialist type approaches to law can mistakenly imply a necessary conflict between individuals and groups of individuals (society). The ideal legal system would provide the best “consequences” for both individuals and the group. So the group analysis isn’t the primary consideration.

    Finally I do believe proper defamation law would be beneficial. Firstly, justice to the individual who has been harmed. Secondly to society because you are less likely to have people put off by the claims from dishonest or malevolent people. This means that better businesses will be more sucessful with more people benefitting by using the best products or services.

  99. “John believes in freedom as being solely non-violence.”

    It’s inverted piffle on stilts. Voluntary action has the presumption of honesty. Why John wishes to rewrite the non aggression principle and the corollary it infers about the use of violence to stop theft, fraud etc, is beyond me.

    It is not “voluntary” to have sex with someone if you deceive them as being someone else. It isn’t “voluntary” to enter into a contract with someone who has lied materially (hence the contract will be somewhat voidable) nor is it “voluntary” to give money to someone who commits fraud against you.

  100. I think there should be a class of voluntary action known as mistaken voluntary, where people make voluntary actions based on wrong premises, or not knowing all the facts (ignorance or fraud). Perhaps it would require a judge to sort it out.
    And we know John would be on the side of those music-copiers mentioned in the papers! I would call that theft, but anarchocapitalists would applaud it.

  101. “I think there should be a class of voluntary action known as mistaken voluntary, where people make voluntary actions based on wrong premises, or not knowing all the facts (ignorance or fraud). Perhaps it would require a judge to sort it out.”

    It’s called fraud, fraudulent misrepresentation, defamation, sexual assault etc.

  102. SRL — voluntary action has never had the presumption of honesty. Freedom has always included the freedom to lie. A lie only becomes illegal when it is a breach of contract. When I talk on my own property to people voluntarily there, there is no breach of contract.

    Michael — you have totally misrepresented my position, and accused me of believing nearly the exact opposite of what I have clearly said I believe. I can’t understand why you chose to do that, but I assume this means you aren’t interested in this discussion.

    To be clear, my approach is this: the starting assumption should be human freedom, but the government can over-ride freedom if the consequences are important enough. This means there is no fixed answer to any policy question. But the burden of proof rests with the person who wants to over-ride freedom to show how their law will create a net benefit.

    But I give up. If you want to misrepresent me… and if SRL wants to have a law against lying… then you guys win. Rational arguments are powerless here. I’ll nod and smile and say “perhaps you’re right”. Peace.

  103. No, John, you should sue them for defamation! They have claimed you support what you oppose- that’s character assassination. Take them down! May the best man win!

  104. TimR- Murder still happens, but I think the laws provide a disincentive, cause the perpetrator to compensate society somewhat (though I think a better law would cause perpetrators to compensate the effected parties- obviously not the deceased, but their families) and murder also satisfies the nature of retributive justice.

    I’m not sure that defamation laws really do have much of a positive outcome. But I admit to knowing less about the subject than I’d like.

    I believe that top-down government made law should primarily exist on consequentialist grounds. I don’t believe the government has any place in legislating deontological morality. Governments setting laws because something is “right” or “wrong” is what leads to laws against homosexuality, laws against pornography, laws against divorce, laws against over-consumption, etc.

    Ideally government made law will satisfy both criteria- it’ll be law for the right reason AND it will be law to the right end. But if only criteria is to be satisfied I’d rather a law that was to the right end than just for the right reason. What is it that John is fond of saying about good intentions?

  105. It is certainly interesting for me to read this article. Thank you for it. I like such themes and anything connected to them. I would like to read more on that blog soon.

    Sincerely yours

  106. To all you opponents of free speech — here is another example of the how your much-loved government restriction actually works.

    http://pimpinforfreedom.wordpress.com/2010/02/18/pimpin-aint-easy-david-clarke-kyle-kutasi-and-the-death-of-john-hyde-pages-book/

    A guy wrote a book that some political players didn’t like. He refer to somebody implicitly as a “nazi” and also included the word “pimp”. And now the book has been withdrawn. Congratulations.

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