Libel and Libertarianism
Published by Yazad Jal September 23rd, 2004 in Libertarian, LawSome months back, at dinner with bloggers in Bangalore, I broached a topic on the limits of libertarianism. What activities would you consider illegal (not allowable) even if you were libertarian? Let’s leave aside the obvious stuff like murdrer and theft.
What would you consider undefendable? Ordinary folks consider things like selling heroin and prostitution undefendable and definitely illegal. We libertarians have higher (or lower?) standards. Both of the above should be perfectly legal or allowable.
What about something like libel or slander? It should be positively illegal to defame someones character or injure reputations. Or should it?
What is a reputation anyway? Basically it is what other people think of you. Youre free to try and influence other peoples thoughts but you dont really own them. And of course I too should be free to influence other peoples thoughts about you. Or should I? If you try to stop me you are actually restricting my right to free speech. Thats what it often boils down to: free speech or libel laws? Can both co-exist?
Before you start with Its so easy to tell a lie and ruin a reputation, let me ask why people are so gullible that they take every lie at face value. Its because libel laws are self-fulfilling. Just because something is printed, it is taken to be true otherwise wouldnt the publisher open himself to libel cases? Without a libel law, people would look for verification before belief. One might even see verification agencies open up similar to the Consumer Reports or Underwriters Laboratories.
Debt of gratitude: Walter Blocks Defending the Undefendable
Without a libel law, people would look for verification…
Mistaken assumptions about the bounded rationality and integrity of humans is the topmost reason why communism perished (or is on the wane)
Libertarians shouldnt fall into the same trap. A market - a requisite for market forces - requires a stable rule of law; respect for property, respect for reputation, respect for other such rights. We cannot libertarianize that away - it would be fallacious.
btw, the anti-discrimination laws fall into the same category. It is not at all hypocritical for a libertarian to be most unlibertarian towards factors that adversely affect the market, and the functioning of free market forces. It is in fact the only logically sound way.
7*6 - How does discrimination adversely affect the functioning of free market forces?
You might say that hiring someone based on his caste might be an uneconomic decision. But a free market never stops someone from making wrong choices, as long as he is indeed MAKING A CHOICE, and is not forced into anything.
A truly free market is not always the most efficient market, and it need not be!
Actually, the state of libel laws is a good indicator of really how useless they are.
In any liberal democracy, proving libel is so difficult that people rarely bother to sue. I can get away with saying anything if you say that “I have unconfirmed rumours that Yazad is…”
To prove libel, Yazad usually has to prove that I knew that the statement was false when I was making it. (It is not enough to demonstrate that I *should have* known that it is false, or even that I did not bother to check if the statement was false or not.)
I wouldn’t want it any other way, but that naturally raises the question of why have that law at all. As long as the law is narrowly defined, it doesn’t do much harm. But the problem with laws is that they tend to expand.
Sunil: totally free markets are asymptotically efficient, when one assumes that people want more affluence and prosperity. Do read this
for more info about why this assumption is not satisfied in many cases which results in a danger to the operation of ‘free markets’, since as you suggested, they would then not be the most efficient anymore.
7*6, debate discrimination laws on the relevant post.
yazad, my point was that both libel laws and anti-discrimination laws share a commonality in that both are required for ‘free markets’ to be efficient. Since the efficiency of free markets is a primary pillar of libertarian thought, one cannot apply libertarian philosophy to these laws in turn.
While I do agree with the fact that the cost of implementing the law soundly is a bit high, one can’t deny that such laws do act as a deterrent at least to some extent.
Ravi - You are claiming that proving libel is very difficult. But is this good enough reason to question the existence of the law?
Yazad - You ask why people are so “gullible to take lies at face value” and cite libel laws as a reason. But, on a day to day basis, there has to be some trust in me for the news i read. Even a little misinformation can lead to pretty big damages. You cannot expect all people to be at their rational and scrutinizing best when reading news items (pepsi and pesticides). People are, and will be, gullible to news and reports that they see everywhere and will have a general tendency to believe it.
In other words, i think libel laws are needed as a general cover against such “wrongs” being commited.
I want to add one more thing about Yazad’s project to eliminate certain laws…
While doing such a project, i think it would help to remember that primitive society started without all these complicated laws (and lawyers)… But some situation has demanded the creation of such laws… so while questioning their existence, if possible, we should examine why they came into existence in the first place… then to say they are not necessary we should prove one of the following…
1. Their coming into existence itself is based on wrong logic. The logic given for the law’s inclusion is flawed.
2. The logic given for the law’s inclusion is not flawed, but does not apply any more. In other words, times have changed.
I haven’t seen either of the above two arguments so far.
Why?
Swami we have argued on the death penalty before. You oppose it. Will you agree if I say that now that the death penalty is there, the onus is on you to prove that abolishing the death penalty makes sense? I support the death penalty, but I will never make such an argument. In general, the burden of proof is on those who support a policy to prove its effectiveness, not on those who oppose it to prove that it does not work.
Nonetheless, what I was trying to do was precisely what you want me to do. Historically, laws have rarely come into existence the way you seem to think they have. I mean, there was a society where x law did not exist, then the deficiency was noticed, then some wise men introduced the law carefully calibrating its effects and that’s how we have the law we have now. It might have happened in a few cases, but it is unlikely that it happened in the case of libel laws. Chances are, the general practice was to beat up or murder people who expressed views you did not like. Then the press pointed out that they were supposed to have freedom of speech, so some sort of compromise was reached which codified what was earlier arbitrary. It is more likely that laws came into being as a compromise between power groups than as a scientific and well thought out process.
So the best I can do is wonder what will happen if libel laws are revoked. It has necessarily to be a thought experiment. But I think here I am close to being right because libel laws are so ineffective as to be useless. Since we haven’t seen an explosion of libel and slander, we have to look at other things to see why not. This is not just the best I can do. This is the best anyone can do without performing potentially disastrous experiments.
For those saying that libel laws are ineffective: the intended protagonists are not just individuals but mass-media.
Consider a national partisan network channel like Fox News. You have no idea how much damage it can do if it’s allowed a free reign of a lack of libel laws.
I mean, with high profile cases like presidential nominees, what Yazad thinks - of people, notably other MASS MEDIA trying to verify facts - might hold, but what about smaller fry?
“It might have happened in a few cases, but it is unlikely that it happened in the case of libel laws”
- I don’t know. You probably have some reasons to say it is unlikely.
“It is more likely that laws came into being as a compromise between power groups than as a scientific and well thought out process.”
- Even granting that, the compromise that has been worked out was to counter an otherwise troublesome situation. My question is, do you have reasons now to get rid of that compromise?
From what I see, I don’t really know if talking more theory on this other will yield any result. Looking back into history and checking the effectiveness of this law might help. If you have some good examples, let me know.
Regarding - burden of proof:
I live in a land with laws. Yazad is questioning all laws (is that right? That is what I construe from the “Anar” part). I am ready to talk on a case by case basis if you let me know why you think some laws need not be there. Are you saying that Yazad can question all laws. And I have to go and prove that each one is required - whenever Yazad asks the question?
Extending that example, if someone tomorrow says he is against the institution of marriage, are you saying all people who support marriage have the burden of proving that marriage is necessary for a society?
Did I understand you right or is there a gap in my understanding?
No Swami, I am saying that it was a *political* compromise, not a logical one. The participants to a political compromise are people with guns or people with votes. The participants are not differing claims of justice.
For example, in case of libel laws, the argument is between a person’s right to speak as against another person’s right not to get vilified. You want to go back to history and find out what was the situation when the law was “brought into force”. I am saying that history will tell us that there was never such a clean situation. It has never happened in history that people sat and debated dispassionately over the relative merits of freedom of speech vs. freedom from vilification. All through history, when people have made laws, the argument has been “I have more guns( or I have more votes). So listen to me” or some such variant.
So I am saying that actual looking at history is going to be not very useful. All we can do is try to construct hypotheses and hope that they are close to the truth.
Yes Swami. I do not agree with Yazad that all laws can be abolished, but I recognise that the onus is on me to justify every single law. This includes laws against murder, rape assault, etc.
Yes, if you think that the institution of marriage makes sense, then you have to give reasons to justify it.
SS, my experience of Fox news is very limited (to about a week or so of viewing), but from what I understand it is very very partisan. So partisan in fact that it does not appeal to anyone who is not already on its side. Those who are already on its side will believe whatever it insinuates. As I have explained, one can insinuate a lot without telling an outright lie. Those who are not will not believe it even when they tell the truth, because it has such a bad reputation. Tell me, how exactly are libel laws stopping it from sinking further?
Wherever did I question all laws or say that all laws need to be abolished? (I do think there should be laws against murder and theft — please read above post carefully!)
That is not even the anacho capitalist position. (which is simply that there should not be a monopoly on law making and enforcement — more on that in a separate post).
Can we focus simply on libel laws here instead of creating straw men and alluding to things that I have never mentioned?
Oh Swami, despite laws, Fox News fires people for refusing to lie in the news. :)
Fair and Balanced, my arse!
I’m surprised that none of the commenters discussed the main argument against libel laws: that what they attempt to protect is what other people think of you. I.e. libel laws seek to indirectly control minds.
Is it really that much of a holy cow that all sorts of unrelated stuff has to be brought into the debate like marriage etc?
Anyway, let me attempt a few answers:
1. 7*6, efficiency of free markets is NOT, a primary pillar of libertarian thought Whereever did you get that idea? We would like markets (like everything else) to be perfect, but libertarians don’t look at markets as some “super” body. It’s just a collection of humans trading. And is as perfect as those humans. Voluntary trade has many benefits, and is more efficient in creating large scale prosperity than anything else I know, but it is not perfect.
2. Swami, you expect people to be gullible and therefore they “need” the protection libel laws bring. This is the classic patronising conservative argument. Also not true. Most people have a healthy scepticism of what they see and hear, especially from big media. People might believe a rumour faster! In a free society with multiple channels of news and information, it would be (is?) easy to check and verify. Yes, 7*6, I too think the challenge is going to be with the “smaller fry” — that’s where independant verification agencies can come into the picture.
I think adults should be given the freedom to make decisions — including decisions about filtering information. Libel laws seek to be a government filter which is both inefficient and unneccesary.
I am not going to discuss other “undefendable” laws here. I’d reserve that for future posts.
Ravi - When I said we have to look back at history to examine libel law’s effectiveness, I did not mean the origins but rather some notable libel law suits in history that might be relevant for our argument.
I still don’t agree with you on the burden of proof part, but we will keep that for later since it is probably off-topic. The owner of the blog does not seem to like it.
Yazad - I say people in general are gullible to false news. You are claiming they have “healthy scepticism”. I don’t think this, too, can be settled without quoting examples.
I will try to find some. If you have any for your side of the argument, let me know.
You are essentially asking me to prove a negative, i.e. that libel laws *do not* deter people from making false accusations. That is difficult. It is easier to prove a positive, i.e, that they do deter. If at all, it can be done only statistically. But I can give anecdotal evidence.
CBS forged documents case - What Dan Rather did was very clearly irresponsible. Any idiot should have been able to see that the documents could not be genuine. But he wasn’t deterred by libel laws.
Another example I can give you is the Economist- Temasek affair. Temasek is a Singaporean company owned by Lee Kuan Yew’s daughter-in-law. The Economist published an article insinuating that the company was benefiting from favouritism. This it did in its typical understated way. Singapore of course has stricter laws about libel and we are talking of the president’s daughter in law, so they threatened to sue. The economist was obliged to publish an apology and retract the original article from its site. (I’ve linked to a mirror that Google found for me)
The point I am trying to make is that in a liberal democracy, because of the way the article has been written, it would have been impossible to sue economist even if we assume that it was lying through its teeth (Unlikely, because of the reputation of the magazine.)
In a despotic country like Singapore, it can get into trouble even if the article were completely true.
In a liberal democracy, the company in question would have been forced to issue statements/clarifications etc. (which would have been a good thing. But it would still have been an unnecessary burden if the charges were false)
So there you have the dilemma. If the libel laws are too liberal, they are useless. If they are even just a bit strict, they put real constraints on freedom of speech.
(Incidentally, note that in its “apology”, the economist has made the accusation even more explicit, so now everyone knows that they were talking of corrupt practices. It might be a sneaky trick. I don’t know. But this also illustrates how difficult it is to protect against libel using laws. )
By the way, when I started commenting on this thread, I was a supporter of libel laws. I put out all these arguments just to illustrate the cost/benefit way of looking at laws.
It just happens that I’ve persuaded myself that libel laws are not needed.
If gullible people need laws to protect them - why don’t you go ahead and protect every sick PSU in India or for that matter why don’t you make laws that prevent anything that takes advantage of anything else…….
Yazad - Even theft and murder or for that matter rape and genocide - I simply don’t think laws against make any sense. The equilibrium will be reached naturally.
If we make laws to prevent what has been allowed in the wisdom of creation, it ammounts questioning the parameters of creation - and what can you and I do about that?…..
Ravi - I have to admit I don’t have ready real examples to show where libel laws have been effective as a deterrent.
“It is easier to prove a positive, i.e, that they(libel laws) do deter.”
When you say this, that is even more humbling! :) Atleast I don’t find it that easy to prove that a law is a good deterrent. (Have you tried this on death penalty?)
One of the main reasons I started this discussion was my *feeling* that - people delivering opinions/news for public consumption need to have some responsibility over their statements. I could not see how this responsibility can be *naturally enforced*.
I would like to make use of the way you have divided libel laws into liberal ones and strict ones. I am in favour of liberal (and in your view, useless) libel laws.
In a market, this law will deter a player A (say in Hotel business) from maliciously defaming a competitor B just because player A also happens to own a popular media company that he can use.
He might not do this defaming time and again (to an obvious extent as to *naturally* get his reputation as a media co. tarnished) but he can do it just enough so that competitor B is swept out of the market unless the case is argued out legally in a court of law.
For B to prove libel might be difficult but it will still be possible to get a jury convinced. In the absence of this law, B will have nowhere to go - other than to start a new venture not involving A.
Incidentally, the defamation laws in UK are nutty. If someone accuses you of it, the burden of proof is on the defendant.
Now that I have successfully fought on one side, I will switch to the other side.
Yazad, I think the idea that libel laws are wrong because they “protect people from their own gullibility” is silly.
By that logic, we wouldn’t have laws against:
Perjury - after all, if a witness lies, it is his right. He has freedom of speech. It is for the judge to determine if the witness is telling the truth or not.
Repudiation of contract - What is a contract? It is just a promise to behave in a specific way in the future. If a participant in the contract decides not to act as he promises, then it is the fault of the other party for being so gullible.
Conspiracy to commit crimes - We should be punishing just the act and not the words leading up to the act. If I give instructions to someone to go and commit a murder, then I am just expressing an opinion. It is the fault of the actual murderer for following my instructions.
(My complaint against libel laws is that they are ineffective, not that it is wrong to have them. So don’t beat me up for being two-faced. This also means that I am willing to change my mind if presented with proof of their effectiveness.)
Ravi, I think libel laws are wrong because they seek to protect reputations, which looked at objectively, are simply other people’s thoughts of you.
The gullibility point simply repudiates one justification of libel laws, and is not my main point of attack (it is however the main point of some commenters!)
Your examples also conveniently take things out of context. The reason perjury and repudiation of a contract is wrong is that there is a breach of promise. In court, you promise to tell the truth. While signing a contract you promise to deliver something. There is no such promise in the case of libel.
Conspiracy has finer points. Just giving instructions (a la Thackeray in the 1992-93 riots) I believe is not enough. If you are involved in the planning or you pay for the crime, you’re part of the crime.
My complaint against libel laws is not just that they are inefficient. It is that they are actively against freedom of speech and seek to protect something which cannot be “owned” — the thoughts of others.
No Yazad, libel laws penalise actions (i.e. some forms of speech). They do not seek to “control thoughts”. It is like saying that perjury laws are wrong because forcing the witness to be truthful unfairly influences the judge’s mind. (Well yes, it does, but influencing the judge’s mind in the direction of the *truth* is not generally considered to be unfair.)
You are missing the point about breach of promise. A promise is also a form of speech. Holding people to their promises also amounts to penalising people for their speech.
I know that there will always be a grey area between “incitement to crime” and “instructions to commit a crime”. I was talking of the latter. As long as you don’t physically do anything, but just tell a person to go and commit a crime, you are just “speaking”.
The only way to resolve the problem is to accept that speech is just a special case of freedom of action. Just as my freedom of action is constrained by my obligation not to harm others, my freedom of speech is also thus constrained.
Just as my actions inside my house can harm innocent third parties (such as if I let out noxious gases) my speech can harm innocent third parties by libelling them.
Defining “harm to others” is always a tricky problem and the same problem arises when we talk of freedom of speech too.
liberty comes to those who respect it. respecting liberty does not include living your life freely, but maintaining a certain level of ‘morality’ in the indian sense of the word.
prostitution to a liberal man, or woman, is a respectable profession as any other like an IT professional or a Harvard economist. the question only remains whether the prostitute is as good in her own profession as a Harvard economist is in economics. In any case, all individuals deserve equal respect.
Here is an example of how a libertarian should think.
Why is the word ‘prostitute’ or its synonyms used in a derogatory way? This question attracts arguments fortifying certain notions and beliefs. They consider sex, however consensual it may be, with more than one person to be immoral for both men and women. They consider exploring one’s own sexuality immoral for women. And they lay down a set of rules for limiting a woman’s behavior in public to a lesser expanse than that done for a man, threatening uncivil behavior with her as the moral verdict for refraining from abiding by the rules. These are only highlights nurtured inside the fortified notions and beliefs.
Philosophers have long been spending their lives trying to gain enlightenment about what is moral, what is good, how God wants the world to be and answers to many other similar questions. And most of the philosophers have come to conclusions that are much, much more agreeable to a civilized man, than are the fortified beliefs that are inaccurate jumbled up interpretations of thoughts of mortals wrongly considered higher than the rest.
Thus, we must know the conclusions the philosophers came to.
Nietzsche, of however unusual opinion about women he may have been (also died a bachelor), put forth arguments that are about basic morals in life that have the potential to triumph over the unacceptable values that cloud natural human desires. He expressed, that commitment to any particular faith or belief or being traditionally inclined prevents the development of the natural strengths of humanity. Only perverse tenacity and cowardice encourages clinging on to those fortified beliefs and values.
Therefore, it is necessary, to accept human behavior that does not involve violence or harm to others, that we must first do away with all that tends to govern us by preaching and accept that which teaches us by making us think. And derogatory use of the word “prostitute” is an obvious outcome of the former. Arguments for the derogatory use of the word is also an outcome of preachings that forcibly govern us.
Down the generations, certain beliefs and norms have been shoved down man’s system because these beliefs were once thought to be of prime importance in a person’s life. However, since nothing is more precious than individuality to an individual, and the shoved down beliefs inevitably interfere with one’s individuality it must be quite comprehendible that holding one back, discouraging one or disrespecting one for a harmless action, however unorthodox it may be, is an attempt to the murder of one’s individual spirit. Such an act, therefore, becomes highly condemnable and undeserving of existence in civil society.