Libel is in the news.
The high-profile case, of course, is the result in the defamation lawsuit in which Fox News settled with Dominion for $787.5 million.
But the chess world is not too far behind, with a slander case brought by Grandmaster Hans Niemann demanding $100 in damages from world champion Magnus Carlsen who had accused him of cheating.
What is going on here? Of what is the perpetrator of libel (a statement in writing) and slander (one spoken orally) being accused? It is that the author of defamatory material has ruined the reputation of the victim, and the latter has suffered grievous financial and other harm. This must be a false claim, not merely a matter of opinion, or a truth, since a sharply negative book or movie review can ruin reputations, but as long as there is nothing untrue in such writing or speaking, libel law would not apply.
Libel law is thus akin to protecting private property rights. If I car jack your automobile, I am a thief; I should be made to return your vehicle to you, plus visit the pokey for a period of time. If I falsely accuse you of something, I have robbed you of something quite possibly far more valuable to you than your four wheels. The analogy is not a perfect one, since neither Dominion nor Niemann was even asking for incarceration for Fox or Carlsen, only to be made “whole” again, at least financially.
What is the libertarian take on all of this? In the analysis emanating from this quarter, there should be no such thing as libel law. Yes, slander ruins the reputation of the victim, but, paradoxically, he simply does not own his own reputation. He works hard to improve it; he benefits from it; sometimes, the good will of a company is worth more in a sale than the attached capital equipment. But, still, his reputation consists, solely, of the thoughts of others in the community and he simply cannot own their thoughts.
I now engage in some libel: Joe Biden takes candy from babies. Donald Trump takes a bath with a rubber duckie. If anyone takes these silly lies of mine seriously, these two presidents of the US will have their reputations diminished. But did I in effect steal anything from either of them? Of course not. I only denigrated the reputations of both of them, which they do not own in the first place.
Another paradox: reputations might well be safer, not in greater danger, without these laws. Right now, people are likely to think: “where there’s smoke, there’s fire. There must be some truth to these false allegations.” With no libel laws on the books, the accusations would come so thick and fast, none of them would any longer have as much power to ruin reputations. Proof, evidence, would have to be offered before people believe them.
There is one more problem with present legislation: it makes an invidious distinction between those who are public figures, and those who are not. Plaintiffs in the former category have a harder row to hoe: they must prove actual malice on the part of the defendant.
Waitasec: When Senator Rand Paul, a public figure if ever there was one, was physically attacked by his neighbor, who is not a public figure, one set of laws applies, and if the assault and battery was in the other direction, a different one would apply? There is a word for that hypothetical: unjust. Ditto for libel law.
Walter E. Block is Harold E. Wirth Eminent Scholar Endowed Chair and Professor of Economics at Loyola University New Orleans and is co-author of the 2015 book Water Capitalism: The Case for Privatizing Oceans, Rivers, Lakes, and Aquifers. New York City, N.Y.: Lexington Books, Rowman and Littlefield (with Peter Lothian Nelson ).
READER COMMENTS
Mactoul
May 28 2023 at 3:15am
Interesting. However, a libel is a falsehood and there can be no right to make false statements.
However, the law may legitimately ignore trivial falsehoods as in your example.
The proposition that reputation consists solely in the thoughts of others hence nobody has right to his reputation or owns his reputation is untenable. There is a undeniable public reality in reputation.
Jon Murphy
May 28 2023 at 7:03am
In the United States, there is such a right. Our courts have routinely held that false statements are still protected by law. Indeed, that is part of the reason there has been such backlash against the Biden Administration’s efforts to create a Disinformation Board.
The issue with libel and slander is not that they are false, per se. It’s that they are damaging.
steve
May 29 2023 at 10:10pm
Dominion lost sales and had contracts terminated. They lost real money not just their reputation. So it’s clear that corporations/people lose real money. Your are suggesting that we weigh that against the possibility that maybe we might see people want to see higher levels of evidence if there was no such thing as libel laws. Seems pretty iffy unless you can cite some real world cultures and their experience showing it actual happens as you suggest. Let’s not forget that one of the reasons we have libel laws is that false claims could be so damaging that people fought duels or just outright murdered people. Lawsuits were seen as much less damaging than people killing each other. (As an aside, one of the reason people in Afghanistan accepted Taliban rule is that they provide courts. Rather than have to fight to resolve slander they could seek compensation in court. The lack of that option just lead to people killing each other.)
Steve
Jon Murphy
May 30 2023 at 7:38am
It’s worth noting that slander/libel laws are quite ancient and co-existed for centuries with dueling (in some US states, dueling was legal until almost 1900!). So, the tradeoff isn’t as stark as you present it.
Dueling coexists with lawsuits because it is a cheaper and more immediate option. To sue someone for slander or libel, you have to clear several hurdles and convince a jury or judge. It’s very time-consuming and expensive, not to mention has a low probability of success (numbers vary, but about 90% of defamation cases are wins for the defendent). Duels provide immediate satisfaction and have lower barriers. The historical evidence indicates that duels fell out of favor with the public as a barbaric practice, rather than anything court-related.
steve
May 30 2023 at 11:07am
By my readings libel laws largely didnt exist until the 17th century at least partially in response to he spread of the written word. It became possible to harm people much faster and more widely. People also had a tendency to be more likely to believe stuff if it was in writing. I agree that duels were faster but it was not just cost but also accessibility. Courts were often not readily available. A number of revolutions/rebellions throughout history have included demands for more availability of courts/judges so that conflict could be resolved peacefully.
Steve
Jon Murphy
May 30 2023 at 11:22am
We see them in Republican Rome, as well. Plus the Bible (strictures against libel and slander are part of the 10 Commandments and punishments are listed in Leviticus).
True, but irrelevant to the question of whether libel law stopped duels (it didn’t).
Mark Brady
Jun 3 2023 at 11:21pm
I commend Brendan O’Neill’s thoughtful discussion of a recent libel case in Australia. “The war hero who outed himself as a war criminal: A former Australian corporal sued three newspapers after they accused him of murder. And he lost.” You can read the article here: https://www.spiked-online.com/2023/06/03/the-war-hero-who-outed-himself-as-a-war-criminal/
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