Reputation Again

Should malicious slander and libel that destroy a man’s reputation be viewed by the law as a tort or a crime? Walter, you say, “No”. Why? What is it that forecloses the possibility that maybe these should be treated as torts or even crimes?

The NAP may be too restrictive to handle certain cases. Its restriction buys definiteness, perhaps, although one can think up hard cases where lines must be drawn, but it’s still arbitrary and not necessarily a basis for a COMPLETE set of laws. The objectivity of its application is by no means assured. Not everyone, including all libertarians, will buy into it.

Walter, you cannot define libertarianism by restriction to the NAP.

The NAP is fine but it has limitations. That’s all. There are consequences for placing 100% reliance on it.

The NAP omits certain “hard” cases, of which slander is one. A line can be drawn between trivial lies that inflict no damage worthy of one’s rebuttal and lies that destroy a man’s livelihood or destroy a valuable institution. Destroying reputation can be as bad as setting a fire.

The problem here is one of trust. We get along socially, in ordinary dealings, depending a lot on reputation that someone or some company or system is trustworthy. We build reputation by good deeds, and that’s much like mixing our labor with land. But it’s not the same. It’s not physical. Rothbard is right to say that reputation is not our property in the same sense as our physical belongings. Yet reputation’s important, and just because it isn’t something we own or control doesn’t mean we should ignore it in our law. It doesn’t mean that a social group interested in justice should ignore it.

Why not? Violating trust by spreading lies destroys, not property, but this reputational trust “thing”. This “thing” is intangible and it is what others think of us. So what? What others think of us is no less important than many physical tangibles we own. From the fact that what others think of us is not physically controlled by us, it does not follow logically that this is something to be ignored by a theory that proposes to outline what we are free to do and not free to do. Should we be free to destroy a man’s reputation and his livelihood by causing others to think he’s no good and should be shunned? Do we have that right? Not if it’s tantamount to an aggression.

A few practical comments are in order. It’s quite challenging to win a libel or slander case. The law sets a high bar. The line has been drawn to weed out the trivial. The law is not naive about this. The legal line has been set so as to protect trust and gain its benefits while weeding out trivial stuff like micro-aggressions or feeling hurt by what someone says or thinking that some political opinion is a threat. This doesn’t mean that people can’t go off the rails and start imagining serious hurts all over the place. They can also adopt bad laws.


9:15 am on April 15, 2019

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