Libel, Slander, and Reputation According to Rothbard’s Theory of Libertarian Law
ABSTRACT: Rothbard’s principal conclusion that libel and slander laws have no place in libertarian law is correct. We build upon his brilliant insight on this matter and wrestle with the following questions: How does a reputational right operate? Who, properly, owns such a right? Is this property right alienable—transferable? How would this work in practice? Is recovery for damages precluded under libertarian law? We do take issue with Rothbard’s rejection of voluntary slavery contracts and relate this matter to reputation ownership.
Walter Block ([email protected]) is the Harold E. Wirth Eminent Scholar Endowed Chair in Economics at Loyola University and senior fellow at the Mises Institute.
Jacob Pillard ([email protected]) is an independent scholar.
LIBEL AND SLANDER
Libertarian philosophy in the Rothbardian sense does not base itself on moral claims but only on legitimate natural law. Legitimate natural law1 can be regarded as self-evident or god given. The two basic axioms are ownership and nonaggression. Self-ownership exists according to Rothbard by virtue of being human (Rothbard 1978, 33–34). Ownership of objects exists through the mixing of our labor with objects in nature (ibid., 42–43). The second axiom, the nonaggression principle (NAP), provides “that no man or group of men may aggress against the person or property of anyone else” (ibid., 27). If someone breaks this rule, the victim2 may use force in return in order to protect a person or property.3
In the most basic sense, the libertarian philosophy is devoid of moral claims. When Chelsea smashes Amy’s figurines to pieces and mutters, to Amy’s dismay, a series of expletives about her, the libertarian should be appalled about the property damage but indifferent to the expletives. There is, of course, nothing preventing a libertarian from reading the Stoics, Aristotle, or Kant and developing his own personal moral compass, just so long as this does not involve abridging the self-ownership rights of others through unwarranted aggression.
In many respects, the same sort of indifference felt towards the expletives is present in the realm of libel and slander. People with a strong moral compass will watch with disgust as our titular villain Chelsea lies in the most exorbitant manner about Amy’s failures. “It’s wrong!” they will shout. “This is hideous, unconscionable, and dare we say undefendable!” However, Rothbard maintains that Amy cannot find reprieve in our legal system, since she does not own the thoughts of the listeners to whom Chelsea directs her venom. Targets of libel and slander are left to defend themselves in the court of public opinion. That is their only legal option under Rothbard’s libertarian framework.
Specifically, Rothbard writes that “since every man owns his own mind, he cannot, therefore, own the mind of anyone else” (Rothbard 2015, 126). Reputation, he writes, “is purely a function of the subjective attitudes contained in the minds of other people” (ibid.) Finally, he asserts that a person “may not legitimately own the thoughts of others”(ibid.) The point is that Chelsea did not violate any of Amy’s rights with her utterances.4 Yes, the former “stole” the reputation of the latter. Chelsea, we may suppose, is eloquent and convinces all and sundry of Amy’s many and serious flaws. But, paradoxically, Amy does not own her own reputation. She may work hard to garner a good one and benefit from it when she has.5 But, paradoxically, it is not her property, since it consists solely, and only, of the thoughts of other people, and she does not own their thoughts.
But is this always, and necessarily, the case?
OWNING THE THOUGHTS OF OTHERS
This section will demonstrate that at least one instance exists where a person could overcome Rothbard’s ownership objection that denies victims of libel or slander from recovering damages.
What if it were possible for Amy to own the thoughts of others? In order to explore this possibility, we will use an extreme example, voluntary slavery. To begin, we note that such a concept is controversial and not fully accepted as even a possibility by many libertarian scholars.6 Even Rothbard himself rejected the idea (Rothbard 2015, 40–41; more on that later). The term voluntary slavery connotes a free person who voluntarily enters into a contract with another to become a slave. For the purposes of this example, the slave is now completely owned by the slave owner.
Consider the following scenario: standing among the gathering of onlookers listening to Chelsea’s slander of Amy is none other than Brett. Brett had no luck in life, and when his mother became deathly ill from her lifelong smoking habit, he had no way to raise the funds for the expensive treatment without resorting to extremes. As a result, Brett the ever honorable son, wrote up a contract and handed it to Amy. Amy, a successful entrepreneur, upon receiving the contract, read it out loud, “I, Brett, hereby voluntarily agree to become Amy’s slave indefinitely when the sum of $2 million is sent to my mother.” Amy immediately accepted. Brett’s mother was able to get treatment. Brett’s first task was to purchase spinach and eggs to make Amy a fantastic breakfast. During his shopping adventures, Brett happened upon Chelsea giving a speech; Chelsea convinced Brett through her slander that Amy was a charlatan and a huckster involved with the most notorious of criminals. These claims have no basis in fact, but Chelsea was able to convince Brett through her excellent persuasion skills. Brett, who has an aversion to criminals, now hates Amy and works for her at reduced efficiency.
Amy, the complete owner of Brett as property, would by definition also own that part of her reputation that now exists in Brett’s mind. Amy’s property has therefore been damaged by Chelsea’s slander.
THE LEGITIMACY OF THE RIGHT
This section will provide a robust endorsement of freedom of contract, reject Rothbard’s rejection of voluntary slavery, and highlight what it means to be a voluntary slave and how it can relate to libel law.
When Rothbard wrote about libel law he never specifically rejected the idea of an ownership right in a reputation. Rather his critique was that the libellee had no ownership right in the minds of other people (Rothbard 2015, 1978). However, the previous master-slave example illustrated a situation where this precise reputational right could possibly come to be owned. At the outset such an extreme example seems too fringe to be of any practical use. We contend that it is not.
Freedom of contract looms large in the minds of most libertarians. Its two axioms are ownership and the right to be free from aggression (NAP). The ownership axiom includes self-ownership. Therefore, with these two axioms in mind a libertarian would not wish to interfere with a contract between two consenting adults who voluntarily enter into a contract.7 After all, they are each doing so with their own private property, without violating the rights of anyone else.8 If someone else or some third entity intervened in this exchange and told B that he couldn’t enter into a contract with A, a libertarian would properly view this as a violation of property rights absent some other voluntary contract from either party prohibiting such a contract.
Since the master-slave relationship is the most extreme example of complete ownership, all lesser forms are derivative. For instance, as a slave owner Amy owns Brett. In theory, Amy owns Brett’s body, his organs, his labor, his ability to enter into new contracts; the list goes on and on. There is nothing he previously owned that is not now her property. Amy has complete dominion over everything Brett has to offer, from his intellect to his physical attributes. This, by definition, means that Amy has control over Brett’s thoughts. Just as Amy can instruct Brett to curse Chelsea, Amy can instruct him to hate Chelsea and despise her accordingly. A critic might aver that a slave can only sell his physical attributes, but why can’t he sell everything? We can easily imagine a machine that allows scientists to interpret our thoughts in the not so distant future. Would such a critic maintain that a voluntary slave would be able to willfully defy his owner’s commands after having sold himself into voluntary slavery? Again, Brett sold in its entirety his property interest in himself. But surely if Brett can sell his entire property interest in himself, nothing is stopping him from selling only a part of that property interest instead.
In the sale of real property, selling a property in its entirety would be regarded as selling it in fee simple absolute. Real property rights are often described as a bundle of sticks. So a complete bundle of sticks is fee simple absolute (Sprankling and Coletta 2015, 316). However, individual sticks include and are not limited to the right to transfer, the right to exclude, the right to use, and the right to destroy (ibid., 25–26). Property takes various forms; for instance, A rents to B for one year, but prohibits B from renting to a subtenant. Here A still owns the property but has given up the right to use it for one year. B owns the right to use the property for one year, but the right to transfer it to a subtenant has been excluded. In addition, B’s ownership interest presumably does not permit him to destroy the property, but as a tenant he would retain the right to exclude other persons, up to and including A, the landlord, from the premises for one year.9
Most notably, the individual sticks in the bundle can be divided even further. For instance, the right to exclude could have an exception for annual walkthroughs or emergencies. Likewise, the right to use need not be general; it could be limited to mineral or grazing rights. The sticks in the bundle are distinct and divisible. As a result of such voluntary contracts, a property could find itself with tenants, mortgages, liens, licenses, easements, and all manner of encumbrances.
Leaving real property aside and returning to the subject of people, we find that free individuals have without compulsion sold their organs, their labor, and their right to do or not do an action. All of these individual private property rights are found bundled together in the master-slave relationship. No new sticks were created in the master-slave relationship that did not already exist individually in the bundle of property rights under the previous owner’s legal control, Brett in the present instance. Ergo, it must be the case that the reputational right in Brett’s mind (about Amy, in this case) is not an exception to this general rule. Since it can come to be owned as part of a complete bundle of rights, Brett’s thoughts can come to be owned individually without the other sticks in the bundle—the other property interests.
At this point, it is appropriate to return to Rothbard, who rejected voluntary slavery. At the outset of this small detour, it should be noted that rejecting voluntary slavery does not sink the analysis thus far. Rather, rejecting voluntary slavery is simply rejecting the idea that the entire bundle of sticks can be offered up to the market; however, even in this view, each individual stick in the bundle may still be offered.
Rothbards writes as follows:
The distinction between a man’s alienable labor service and his inalienable will may be further explained: a man can alienate his labor service, but he cannot sell the capitalized future value of that service. In short, he cannot, in nature, sell himself into slavery and have this sale enforced—for this would mean that his future will over his own person was being surrendered in advance. In short, a man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement. (Rothbard 2015, 40–41)
Rothbard offers the following hypothetical,
Suppose that Smith makes the following agreement with the Jones Corporation: Smith, for the rest of his life, will obey all orders, under whatever conditions, that the Jones Corporation wishes to lay down. Now, in libertarian theory there is nothing to prevent Smith from making this agreement, and from serving the Jones Corporation and from obeying the latter’s orders indefinitely. The problem comes when, at some later date, Smith changes his mind and decides to leave. Shall he be held to his former voluntary promise? Our contention—and one that is fortunately upheld under present law—is that Smith’s promise was not a valid (i.e., not an enforceable) contract. There is no transfer of title in Smith’s agreement, because Smith’s control over his own body and will are inalienable. Since that control cannot be alienated, the agreement was not a valid contract, and therefore should not be enforceable. (Rothbard 2015, 135–36)
We find this line of argument unconvincing. Suppose Smith entered into a contract to work for Jones Corporation for ninety-nine years. After one day, Smith breaks his contract. How is this any different? While his entire “will” is not at issue, his ability to contract his labor in the future was certainly constrained; according to Rothbard, this would not be enforceable In both cases, Smith agreed to something that would prevent him from doing something else because of the deal struck at an earlier date. Instead of ninety-nine years, suppose it was one year, or six months, or thirty days or eight hours; does that make a difference? Surely not. Consider a contract whereby Smith offers to deliver a certain number of widgets each month for one year at a fixed price. Surely all such deals among consenting adults must be enforced. What about a five-year lease agreement with monthly payments? Accepting a contract now must mean that you are held accountable in the future if property rights are to mean anything.
What about suicide? Should my ability to constrain my “will” in such a manner be illegal and not permitted? One of Rothbard’s points about the “will” is that present-day decisions should not shackle future actions. What about the sale of my kidney? Although it is now a great time to sell it in the ex ante sense, I may soon experience some ex post regret as my future self realizes the importance of having two working kidneys. The sale of the kidney constrained my “will” with respects to future uses of the kidney, so am I entitled to a refund?10 Another difficulty with the Rothbardian position is that it implies that suicide would be a crime, since it alienates the (future) will; this is a difficult stance for a libertarian to take; for that matter, the same applies to dying. These objections render Rothbard’s principal complaint about voluntary slavery untenable.
What we are now discussing are specific performance contracts. The usual example is X hires Y to sing at his wedding. At the last moment, Y reneges. In our view, X would have the right to frog march Y to the venue and compel him to sing at the point of a gun. Even we realize that this appears problematic. Our critic would object that if X is worried about being disappointed, he could arrange with Y to post a bond, which the latter would forfeit, in case he does not uphold his side of the arrangement. Or, X could rely on Y to show up, since if he did not, his reputation would suffer, and the demand for his services would slacken. So, let us consider a much more powerful case on behalf of specific performance contracts, e.g., voluntary slavery of a temporary sort. Here D is a tightrope walker; he performs his act of daring one hundred feet up in the air. D hires E to hold a net under him in case he falls. D starts his performance, and while he is in the middle of it, E decides to down tools, that is, walk off the job. F, a friend of D tells E that if he quits in the middle of D’s performance, he, F, will shoot E. Is F entitled to make this threat of physical violence against E, the would-be quitter? Most people would now agree, since D’s very life is at stake. The emotional impact changes from the case of the wedding singer to that of the net holder, but the two should be considered legally equivalent.
Returning now to libel and slander, in Defending the Undefendable II Walter Block discussed how a
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