If hamburger seller A with malicious intent or reckless disregard for the truth maligns the hamburgers of seller B, claiming they are made from worms and dust covered over with blood, I propose that then A has a valid legal action against B, including under an NAP (non-aggression principle) properly extended. This position differs from that of Walter Block, who states today that A’s action “…is nasty and libelous. This [is] not illegal for libertarianism.”
I hold, contrary to Rothbard and Block, but consistent with Frank van Dun that the NAP does extend to some clearly specified instances of verbal destruction of property, reputation, trademarks and such, even if there is no direct physical embodiment occurring.
In order to prove that such an extension of the NAP is valid, I must show that it’s a reasonable extension. This means for one thing that there is actual physical damage being done through words alone. That’s the case posited here, and it can be proven by a loss of sales after A spreads his lies and B’s customers switch to A. It can be proven by tests that analyze B’s hamburgers showing them to contain no worms or dust. Employees and suppliers can also testify to the integrity of B’s product.
A reasonable extension must also have limits that reasonable people can apply in order to judge the case. Damages cannot be trivial physically or psychologically. Human beings are expected to be able to stand up under minor duress, ribbing, insults, etc. The NAP itself and its applications all depend on reasonableness. It is no fatal drawback in the case of either the NAP or bringing libel under the application of the NAP to demand the prospect of reasonable limits.
If A calls B an s.o.b. to his face or in context of a heated argument over some personal thing, if A insults B in this way, reasonable people deem that to be legal, and it doesn’t have physical ramifications unless they come to blows. On the other hand, if A publicly advertises this remark and it’s false and designed to impair B’s life and livelihood, that crosses a line. Lines have to be drawn. Drawing the NAP line at physical aggression and only physical aggression is such a line, for example, but it’s actually an unreasonable restriction because serious aggression can occur without physical blows or threats of blows. Drawing libel lines may be more troublesome than observing a knife wound, but there are benefits to doing so. Reasonable people are going to demand such lines and protections, and it’s the right thing to do morally.
In my view, the reasoning behind Rothbard’s restriction to the physical depends upon the fact that the physical is definite and that it clearly affects a recognized property right. The argument, which is indeed persuasive and sounds reasonable at first glance is that one cannot have a property right in one’s reputation because that depends on what other people think of you or your hamburgers.
Nonetheless, Rothbard’s argument is needlessly limited. Just because claims and statements are not physical and just because their influence is through the minds of human beings, that does not rule them out as sources of aggression. They can have real and physical impacts on property as they change people’s value scales, even if these value scales are the property of individuals. There are social effects that can’t be ignored.
The difficulty with my proposed extension is that some changes in value scales are okay and others are not. Some are trivial, others not. But some cause serious harm and should be ruled out by law. Legal lines have to be drawn.
That does not automatically mean that they are to be drawn at only the easy cases of physical aggression. That’s not a necessary postulate, and it’s not necessary to a libertarian position narrowly construed by a solely physical construction of the NAP. B’s property is actually destroyed by A’s libel. There has to be a “home” somewhere in libertarian law to accommodate this. The libel case is more difficult but it can’t be simply tossed out of libertarian court or excised from libertarian lawbooks.
People will want protection against libel even in an ancap world because it causes actual damage. Restricting the NAP to physical impairments of property doesn’t acknowledge this simple fact. A business will want to be protected against those who would destroy its reputation, even in an ancap world. Someone seeking a job will want to be protected against a competitor who spreads lies about the job-seeker. Supposing that an ancap world is a libertarian world and one in which the NAP is a basis for law, there will be a demand for applications that extend the NAP beyond the physical. This is another reason why a sensible elucidation of libertarian law should not exclude the case of libel or slander.
9:44 am on May 14, 2020
