Harm to the Person

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Invasions of privacy harm a person without necessarily harming their body or property. The bodies need not pile up for us to say that invasion of privacy is a bad thing. I’m going to discuss one specific case and afterwards explain my position on harm to the person. I remind the reader that privacy has many facets, and its defense or analysis doesn’t rest on one case, like this one.

This case is Brents v. Morgan, discussed in Post’s 1989 California Law Review article.

“It appears that in 1926 in the town of Lebanon, Kentucky, W.R. Morgan, a veterinarian, owed a debt of $49.67 to George Brents, a garage mechanic. Brents made several unsuccessful efforts to collect the debt, and in frustration finally put up a sign, five feet by eight feet, in the window of his garage facing one of the principal streets of the town. The sign stated:


“Dr. W. R. Morgan owes an account here of $49.67. And if promises would pay an account this account would have been settled long ago. This account will be advertised as long as it remains unpaid.

“Dr. Morgan sued Brents for damages, alleging that the sign had ’caused him great mental pain, humiliation, and mortification,’ that it exposed ‘him to public contempt, ridicule, aversion, and disgrace,’ and that it had caused ‘an evil opinion of him in the minds of tradesmen and the public generally.’”

The Kentucky Supreme Court found that Brents had invaded Morgan’s privacy.

In this case, there is no direct physical aggression or harm. There is no trace even of trespass as in the apartment bugging case. There is, however, an issue of power and a public ganging up on Morgan.

I got to corresponding with a well-informed libertarian about this case, Mike Stallings, and he made the following incisive observation:

When the mechanic takes his beef with the doctor to the public, doesn’t it subjectively take on some of the character of government violations of privacy? You were just saying in another post on LRC that the gov’t overwhelms the individual. Here, the doctor feels that a private matter is being brought to the public, which is a large mass of people mostly unknown to him, who will now perhaps not want to do business with him. He feels he’s being tried in the public square without recourse. It seems to him like persecution.”

This is one facet of the invasion of privacy in this particular case. The issue is social. It’s unacceptable for civil functioning of society to have people attacking each other openly in certain contexts and venues, even when what they say is true. Brents may have been seeking to embarass Morgan, but what he did was also destroying the goodwill between Morgan and other people, and this matter was none of their business. The Court wrote that the right of privacy concerned “the right of a person to be free from unwarranted publicity, or the right to live without unwarranted interference by the public about matters with which the public is not necessarily concerned.”

Certainly non-aggression in a physical sense is a fine moral principle upon which to derive and build a political philosophy. Certainly it is a huge advance in understanding when Rothbard takes as a starting point Crusoe’s ownership of his body and explores the implications. Rothbard’s work “The Ethics of Liberty” is a terrific and creative piece of scholarship.

Nevertheless, the subject he has tackled is a huge and challenging one, and he doesn’t have all the answers to ethics, a subject that has challenged philosophers for millenia. Certainly Rothbard would say that Brents has a property right on his window and can post anything he likes there, and Morgan has no property right in his reputation. Indeed, Rothbard would allow Brents to post false (slanderous) statements about Morgan. Rothbard writes

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

“And yet, once again, 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.”

However, whether or not American courts have actually propounded a property right in reputation, a property right in one’s reputation is not the only basis for a society, even a free society with strong property rights, to act against slander, libel, blackmail, defamation of character, and invasions of privacy. From the early history of such laws, it has been the public nature of the statements that has been seen as a problem. I refer the reader to the section titled “History” in the wikipedia article on defamation where this public aspect is clearly stated. Amazingly, the Kentucky court thousands of years after the Roman recognition of this also refers to the unwarranted publicity of the sign put up by Brents, which is not different than the public “shouting” in the Roman case.

There is something social being protected as well as something personal being invaded in all these cases. It is not a matter of property or bodies piling up or stab wounds. These cases don’t have those.

I contend that libertarian theory is too narrow. I make the following statements of where I stand.

1. Property is too narrow a basis to build an entire law and society on. The moral principle of no physical aggression is too narrow a basis. They are good as far as they go, but taken too far, they run into problems by ignoring the non-physical. Libertarianism has an impoverished social theory by this restriction to property and physical aggression. It gains by definiteness, but it loses by restrictiveness. In some cases, as in defamation, it leads to conclusions that go against thousands of years of law and history.

2. I base my freedom arguments in most cases directly on the “person”, or on their “humanity” or their capacity to “realize their humanity” and not be socially or governmentally thwarted by restrictions that do not work against crimes and torts, but work against them as persons. And I feel more comfortable with basing freedom on these grounds than on ownership of one’s body. I explain why below.

3. Property is what belongs to you. It’s circular to say that a person belongs to himself or owns himself. You only seem to become property when you become a slave, partly or wholly, and belong to someone else. Even in that case, they have property in your body, in the product of your labor, but not in YOU. In other words, to resolve this problem of definition and starting point philosophically or religiously, we need to specify what a human being or person IS. What IS this “I”? What is the BEING that “I” am, and that you are? That BEING exists outside the domain of human notions of property. That’s my unprovable assumption or postulate about life and existence.

Not all harm that is done to this “I” or “Be-ing” is through invasion or intrusion on body and belongings (property). It is also done to this “Life-force” that is the “I” that directs actions attributed to that “I.”

This is why I said in an earlier blog that a blow is forgotten (it’s done to the body), but a word is not forgotten (it’s done to the “I” or “Be-ing.” (The INTENT of a blow may be not forgotten if it reveals what words are not conveying.)

Intrusions on privacy can cause harm to both property of ours and to “ourselves”, by which I again mean that indefinable “I” or “life force” that is our “be-ing.”

4. I think that people need to understand their essential be-ing in order to understand how they should treat one another.

Understanding of property aggressions is a step in the right direction, but not enough in my view.

5. My opinion is that the staunchest libertarians are defending the “core” paradigms of Mises and especially Rothbard. They are not venturing outside that ambit for fear of losing the central property idea. However, this is foreclosing research that would broaden the paradigm and enhance its appeal to more people. As matters stand, by taking libertarianism to the extremes (because its basis in property is too narrow), libertarianism can easily be discredited. We actually cannot have a  good society with everyone owning their own atom bombs. But once this is admitted, then you see the question arises: Where should the line be drawn? At bazookas, machine guns, semi-automatics, etc? The libertarians don’t want to get into that and debate these social issues. That becomes politics as usual. There is a serious problem here that the libertarian social theory doesn’t address satisfactorily, in my opinion. I’ve tried to skirt it or finesse by the notion of panarchism. Choose your own non-territorial government (or band with others into a territory and create a government there). Without a high degree of tolerance, this cannot work.

6. Society can gang up on the PERSON as much as government can, which after all arises from a society. We don’t want privacy invasions because they harm, not one’s body or one’s property necessarily, but because they harm this “I” or “Be-ing.” If these invasions are allowed generally, they harm interpersonal relations and society as a whole.

1:17 pm on December 17, 2012
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