Sue for Libel?

by Walter Block
by Walter Block

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Should I sue the bad guys for libel? There is nothing I would like more. These people have, indeed, engaged in such acts, at least according to several lawyer friends of mine.

For example, Fr. Linnane, S.J., President of Loyola College in Maryland said that neither he nor the institution he heads up would "endorse or support racism, sexism or any other form of intolerance," in a context where he clearly claims I am guilty of such. A letter signed, presumably, by the entire economics department of this college (actually, two of its members, Prof. Tom DiLorenzo, and Prof. Hank Hilton, S.J., chairman of this department, refused to sign it) characterized my lecture (which most of them did not even attend), as follows: "insensitive," "incorrect," "offensive," "racially insensitive," "poor-quality scholarship," (guilty of) "gender … (and) … racial prejudice." And then, to add insult to injury, my own Loyola University New Orleans colleagues, the members of our Affirmative Action Diversity Task Force, piled on with a "statement" to the effect that I have no "commitment to inclusion" and that I "marginalize women and African Americans"; that I do not want to "instill… in every one of our students a desire to pursue excellence"; that I do not appreciate "the valuable contributions of" some ethnic, racial and gender groups; that my remarks are "flawed" and, even, "dangerous." Needless to say, none of the members of this "Task Force" attended my lecture, either. Further, there was a rash of letters to the editor of the Times Picayune newspaper, which, charitably, can be characterized as libelous condemnations of this lecture of mine, which of course, none of them had attended.

Oh, yes; there is nothing I would want more than to sue these illegitimi for all they are worth, and then, of course, to donate the proceeds to the Mises Institute, without whose support I would not have been able to publicize these moral, spiritual, intellectual, and, yes, illegal outrages that have been perpetrated upon me.

However there is one barrier to doing so, at least for the libertarian. While libel is indeed a crime on the law books, we libertarians are not legal positivists. Not for us the notion that whatever the law is, is right. No, members of our persuasion cast a piercing light on the extant legal codes, and do not at all support them en masse. Rather, we pick and choose. We claim they are legitimate only to the extent they accord with the twin pillars of libertarianism, private property rights based on homesteading, and the non initiation of aggression axiom.

How do libel laws stack up in this regard? Not too well.

In the view of Rothbard:

"Does Smith have the right to disseminate false information about Jones? In short, should ‘libel’ and ‘slander’ be illegal in the free society?

"… how can they be? Smith has a property right to the ideas or opinions in his own head; he also has a property right to print anything he wants and disseminate it. He has a property right to say that Jones is a ‘thief’ even if he knows it to be false, and to print and sell that statement. The counter-view, and the current basis for holding libel and slander (especially of false statements) to be illegal is that every man has a ‘property right’ in his own reputation, that Smith’s falsehoods damage that reputation, and that therefore Smith’s libels are invasions of Jones’s property right in his reputation and should be illegal. Yet, again, on closer analysis this is a fallacious view. For everyone, as we have stated, owns his own body; he has a property right in his own head and person. But since every man owns his own mind, he cannot therefore own the minds of anyone else. And yet Jones’s ‘reputation’ is neither a physical entity nor is it something contained within or on his own person. Jones’s ‘reputation’ is purely a function of the subjective attitudes and beliefs about him contained in the minds of other people. But since these are beliefs in the minds of others, Jones can in no way legitimately own or control them. Jones can have no property right in the beliefs and minds of other people.

"Let us consider, in fact, the implications of believing in a property right in one’s ‘reputation.’ Suppose that Brown has produced his mousetrap, and then Robinson comes out with a better one. The ‘reputation.’ of Brown for excellence in mousetraps now declines sharply as consumers shift their attitudes and their purchases, and buy Robinson’s mousetrap instead. Can we not then say, on the principle of the ‘reputation’ theory, that Robinson has injured the reputation of Brown, and can we not then outlaw Robinson from competing with Brown? If not, why not? Or should it be illegal for Robinson to advertise, and to tell the world that his mousetrap is better? In fact, of course, people’s subjective attitudes and ideas about someone or his product will fluctuate continually, and hence it is impossible for Brown to stabilize his reputation by coercion; certainly it would be immoral and aggressive against other people’s property right to try. Aggressive and criminal, then, either to outlaw one’s competition or to outlaw false libels spread about one or one’s product.

"We can, of course, readily concede the gross immorality of spreading false libels about another person. But we must, nevertheless, maintain the legal right of anyone to do so. Pragmatically, again, this situation may well redound to the benefit of the people being libeled. For, in the current situation, when false libels are outlawed, the average person tends to believe that all derogatory reports spread about people are true, ‘otherwise they’d sue for libel.’ This situation discriminates against the poor, since poorer people are less likely to file suits against libelers. Hence, the reputations of poorer or less wealthy persons are liable to suffer more now, when libel is outlawed, then they would if libel were legitimate. For in that libertarian society since everyone would know that false stories are legal, there would be far more skepticism on the part of the reading or listening public, who would insist on far more proof and believe fewer derogatory stories than they do now. Furthermore, the current system discriminates against poorer people in another way; for their own speech is restricted, since they are less likely to disseminate true but derogatory knowledge about the wealthy for fear of having costly libel suits filed against them. Hence, the outlawing of libel harms people of limited means in two ways: by making them easier prey for libels and by hampering their own dissemination of accurate knowledge about the wealthy."

I, too, am on record as opposing the criminalization libel. In my book Defending, I state:

"Now, there is perhaps nothing more repugnant or vicious than libel. We must, therefore, take particular care to defend the free speech rights of libelers, for if they can be protected, the rights of all others – who do not give as much offense – will certainly be more secure. But if the rights of free speech of libelers and slanderers are not protected, the rights of others will be less secure.

"The reason civil libertarians have not been involved in the protection of the rights of libelers and slanderers is clear – libel is ruinous to reputations. Harsh tales about lost jobs, friends, etc., abound. Far from being concerned with the free speech rights of the libeler and slanderer, civil libertarians have been concerned with protecting those who have had their reputations destroyed, as though that in itself was unpardonable. But obviously, protecting a person’s reputation is not an absolute value.

"If it were, if, that is, reputations were really sacrosanct, then we would have to prohibit most categories of denigration, even truthful ones. Unfavorable literary criticism, satire in movies, plays, music or book reviews could not be allowed. Anything which diminished any individual’s or any institution’s reputation would have to be forbidden…

"… what is a person’s 'reputation'? … Clearly, it is not a possession which may be said to belong to him in the way, for example, his clothes do. In fact, a person’s reputation does not 'belong' to him at all. A person’s reputation is what other people think of him; it consists of the thoughts which other people have.

"A man does not own his reputation any more than he owns the thoughts of others – because that is all his reputation consists of. A man’s reputation cannot be stolen from him any more than can the thoughts of other people be stolen from him."

"Whether his reputation was 'taken from him' by fair means or foul, by truth or falsehood, he did not own it in the first place and, hence, should have no recourse to the law for damages.

"What then are we doing when we object to, or prohibit, libel? We are prohibiting someone from affecting or trying to affect the thoughts of other people. But what does the right of free speech mean if not that we are all free to try to affect the thoughts of those around us? So we must conclude that libel and slander are consistent with the rights of free speech."

Thus, while I would like, more than almost anything else, to meet these defamatory people in a court of law, in my opinion libertarian principles prevent me from so doing.

But, am I not being too extreme? Is not logical consistency the hob goblin of little minds? And, has not the great Murray Rothbard opined that every dog gets one bite: a person can still be considered a libertarian even if he acts inconsistently with this doctrine on one issue. Why not make libel laws my one exception?

This will not do, for I have already compromised on libertarian principle. I have previously given up on anarcho capitalism, a logical implication of the twin libertarian axioms. I am on record as saying that government is justified (I did this in one of my lectures at the Mises University; if you want to see lots of similar compromises with principle, attend this seminar). That is, I have favored limited government. Well, strictly-limited government. My claim is that the state should have only one function: to compel everyone to read the books of Mises and Rothbard. But not only read them: understand them, too. To that end, the government should set up quiz centers to ensure comprehension of books such as Human Action and Man, Economy and State (please, the scholar’s editions of each), and jail sentences (take that, Stephan Kinsella and Dan D’Amico!) for those who fail to fully understand these books.

So, you see, gentle reader, being guilty of one deviation, I dare not add a second to my record.

Is there any way out of this morass? Is there a path that will allow me to both have my cake and eat it too? That is, sue ‘em, but, somehow, do so in a way that is compatible with libertarian principles?

Consider the following attempts (all suggested to me by friends of mine) in this regard. I fear they all fail, but I am certainly open to all such attempts.

1. "I don't see how suing these rascals for libel conflicts with libertarian thought. We believe in economic compensation for wrongs done to us, right?"

   Well, not exactly. The only wrongs for which forced compensation is justified under libertarianism involve a violation of either private property rights or the non aggression axiom. Does libel, lying about someone’s views in this case, constitute such a violation? I think not. Fr. Linnane, S.J., did not punch me in the mouth, nor steal my car. Yes, he besmirched something even more valuable to me, far more valuable, my reputation, but, still, I don’t own my reputation (it consists of the thoughts of others about me), thus there is no wrong committed against my property rights.

2. "I'm sure that you can figure this out so that you may avoid this criticism while using the threat of this action and the sure outcome to defend your opinion – as well as your method of teaching."

   Here is another version of this attempt:

   "I don't think that you must see it all the way through. When they realize that they cannot win, they will back out of court. You get the judgment (compensation) for damages to your career, etc. They shut the hell up. (The ultimate ideal would be that they back down, make public apologies, and after that, you forgive them for the debt – doubt that a lawyer would agree to this – so, how about they apologize publicly, in writing – in newspapers, even if it costs them money – then you take their compensation and donate it to some good charity?"

   That sounds like a great idea: threaten to bring a libel suit against these worthies, but do not carry through. That is, perhaps, have a lawyer send them a letter with this threat, and hope that this will be sufficient to entice them to climb down from their present position. At least offer an apology, and, perhaps, offer to settle out of court, since my case (I have been assured by several lawyers) is a strong one. Very tempting; even a public apology would go some way toward demonstrating to the politically correct crowd that they cannot bully everyone.

   The problem with this from a libertarian perspective is that there is an intimate connection between what one may properly threaten, and what one may licitly do. That is, it is impermissible to threaten to engage in act X, if you have no right to actually carry X out. I have no right to threaten that unless you give me your wallet, I’ll shoot you, because I have no right to shoot you in the first place. On the other hand, if I do indeed have a right to do Y, then I have a right to threaten that I will do Y, unless you pay me money. This insight is the key element of the libertarian analysis of blackmail. In this case, since I have the right to gossip about you, I have the right to threaten to gossip about you, unless you pay me not to do so, which is all that blackmail consists of. For further elaboration of this claim, see here, here, here, here, here and here.

3. "A libel suit is just a use of force. It is arguably permissible if it is used defensively – e.g. in a counterclaim. So – see if you can think of a case that these people are committing aggression against you – e.g. by supporting taxation etc."

   I would gladly do this. And, yes, my tormentors all, certainly, support taxes. But, that is all they did to me: libel. They only libeled me. They didn’t use coercion against me. How I wish they had.

   This reminds of the time when Robert Nozick used rent control legislation against Eric Segal, fellow Harvard professor, novelist (Love Story), and his landlord. The press had a field day with Nozick, under the heading of Anarchy, State and Rent Control, a take-off on the title of his famous book, Anarchy, State and Utopia. Nozick was widely and properly condemned for his hypocrisy. Suppose, however, contrary to fact conditional coming up here, that Segal had punched Nozick in the mouth, under conditions where this could not be proved. Then, would Nozick have been justified in utilizing rent control provisions against Segal? I do not see why not. As stated above "A libel suit is just a use of force." If violence was initiated by these people, then countermeasures, such as a libel suit, would be justified. I only wish that some of these libelers had been guilty of a real crime; I would not hesitate, then, to utilize libel law against them. Alas, however, they did not, and thus I may not.

4. "Ask XX (a lawyer) about the libel law aspect. These people deserve to have the (bleep) scared out of them, and Walter, the hell with ‘no damages.’ Sue them all for big bucks, and give the money to the Mises Institute."

   I fully agree with this friend of mine that these people deserve not only to have the (bleep) scared out of them, but to pay, and big. Needless to say, I would donate any proceeds from a lawsuit along these lines to the MI. (I had previously considered the possibility of suing them, merely, for an apology; I have long since relinquished this idea.) However, and this is a big however, I'm having no little difficulty reconciling suing them for libel with libertarian theory, according to which libel is not a crime.

   Suppose, arguendo, I were to sue for libel. At whom would I direct my lawsuit? To the individuals involved? Fr. Linnane, S.J. has no money: zero. As a Jesuit priest, he has sworn a vow of individual poverty (but not group poverty: his Catholic order is a very wealthy one.) On the other hand, he has violated, with impunity, Paragraph 22 of The Spiritual Exercises of Saint Ignatius, which are the spiritual foundation of Jesuit life. If he has transgressed against this one rule, why not others? Who knows how much money he has socked away, contrary to his vows of individual poverty? Well, likely, not too much, if any at all. Certainly, I have no independent reason to suppose that Fr. Linnane, S.J., has violated this one oath, just because he has ignored another. My other libelers are mainly professors, and, probably, no one will get rich from suing any of them, or even all of them put together.

   Why not, then, search for "deep pockets?" Loyola University New Orleans and Loyola College in Maryland both have rather large endowment funds. For that matter, I might as well sue the entire Jesuit order, if it is deep pockets at which I am aiming. Unhappily for this trend of thought, seeking out such defendants would also be proscribed by libertarian considerations. To wit, respondeat superior is incompatible with the individualist elements of libertarianism. This is the doctrine according to which the employer (the entire Jesuit Order, Loyola University New Orleans, Loyola College in Maryland, respectively) is civilly responsible for the actions of his employees (my several libelers, in this case). Under libertarianism, in sharp contrast, people are only responsible for their own acts, not those of others. For more on this, see here.

5. "Get someone else to do the suing. If you are limited by your libertarian principles in this regard, there are others, friends of yours, who will not be so picky."

   There is precedent for this sort of thing. In the Jewish tradition, there is the practice of the Shabbos goy. This is a non Jew who is not bound by Halachic (Hebrew) law to, for example, refrain from turning lights on or off during Shabbos (the Jewish Sabbath, which takes place between sunset Friday and sunset Saturday). He can perform this service for a Jew without violating any rules that apply to either of them.

   This, I confess, initially sounded to me like a "winner." At last, I could see the libelers writhe, score a few points against these bullies, strike a blow for freedom, and all this without running afoul of libertarian requirements.

   Alas, ‘twas not to be. There is such a thing as "standing" in the law, and properly so. This means that there must be some connection between the plaintiff and the harm done. But, no one else has any standing, apart from me. No one else’s reputation was attacked. I am not lawyer enough to know whether any other libertarian would have sufficient standing, based on only that fact; even if so, there would still be logical difficulties here. To the extent that such a person really was a libertarian, he would have standing, but would have to renounce all libel lawsuits, for reasons given above. To the extent that such a person was willing to sue in my behalf, he would lose any vestige of standing that might or might not be according to any of my fellow libertarians; he would no longer be one of our tribe.

6. "It is not you who are doing the libel. It is they. So, play by their rules. I think in this case, you can play by their rules and still win. It's the best of both worlds, no?"

   I fear not. To play by "their" rules is to renounce libertarian principle. But, the point of the exercise I conducted in Baltimore was to promote liberty, not adopt their policies. In other words, we want to achieve liberty in a very narrow and limited way: by using libertarian means, and only libertarian means. To sue anyone for libel is to that extent to put paid to this.

So, what to do, what to do? If anyone has any suggestions, if anyone can mention another tack that I have missed, please let me know. (By the way, unless otherwise told, I intend to blog some of the many magnificent letters I have received in response to this thread; of course, on an anonymous basis. Tom DiLorenzo has started this practice, and I intend to follow up on his lead.)

There is a course of action I have tentatively decided to embark upon. Given that I cannot sue for libel as a libertarian, is there anything else I can do to bring these harassers down a peg or two? Yes. I can go to ecclesiastic court. Fr. Linnane, S.J. is a member in good standing of the Jesuit order. Yet, he has violated its strictures. The members of the economics department at Loyola College in Maryland are not Jesuits (apart from their department chairman, Fr. Hilton, S.J., who did not sign that letter), nor are those who comprise the Affirmative Action Diversity Task Force of Loyola University New Orleans. However, both sets of individuals are employed by these two Jesuit institutions of higher learning, and are, presumably, bound at least to some extent to follow practices of civility as required by the Jesuit order. Surely, there must be some penalties meted out to those who so outlandishly set these aside.

However, I am now stepping way outside the bounds of my expertise, such as it is. I need a lawyer well versed in ecclesiastical law to advise me on this matter. If anyone knows of such a person, please ask him to contact me, and/or give me contact information about him.

A note on another matter.

In a previous column in this thread, I had occasion to say this: "Now, even mentioning IQ in the typical university setting (apart from debunking the entire concept) is, for many, akin to shouting out the F word in the drawing room. Indeed, it is simply not done in "polite" society, in their view. I beg to differ."

My friend Gary North points out that most institutions of higher learning, certainly including both Loyola College in Maryland and Loyola University New Orleans rely, heavily, upon SAT and ACT scores in choosing their freshman classes. But, SAT and ACT ratings are not unrelated to IQ. It is more than passing curious, then, that members of each of these communities are so bitterly opposed to the latter, when they embrace the former as an everyday matter – well, every-year matter. They are thus acting – how shall we put this politely? – in a logically inconsistent manner. Are they also racists and sexists for utilizing a concept (SAT, ACT) that is so highly correlated with the IQ score they hate and revile so much? They are, at least according to the limitations they have attempted to place upon me. Logic, then, compels them to either cease and desist from employing SAT and ACT scores in their decision making, or, to withdraw the calumny they have placed at my door for merely mentioning IQ.

December 29, 2008

Dr. Block [send him mail] is a professor of economics at Loyola University New Orleans, and a senior fellow of the Ludwig von Mises Institute. He is the author of Defending the Undefendable and the newly released Labor Economics From A Free Market Perspective.

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