Free speech and music
Having lived in the States for five years (from ages seven to twelve) I have some memories of the ferocity with which Americans defend their rights, particularly their right to free speech. American residents regularly push that freedom of speech to the limit. In 2003 my favourite rapper, Eminem, released a song titled ‘We As Americans’. The lyrics included the following bars:
Fuck money I don’t rap for dead presidents
I’d rather see the president dead
It’s never been said
but I set precedents and the standards
and they can’t stand it
It saw him almost become the subject of an investigation by the US Secret Service charged with protecting the President. It was not the first time he had caused controversy – far from it. In another song, ‘Rap Game’, Eminem (or his musical alter ego) threatens to wipe out the White House:
I’ma get snuffed, cuz I ain’t said enough to pipe down
I pipe down, when the (White House) just wiped out
When I see that little (Cheney) dike get sniped out
Lights out, bitch adios, goodnight [gunshot] (AHH!)
But his rage is not restricted to governments. He has also used his songs to incite fans to violence against (usually unnamed) individuals. Consider these lyrics from the song ‘American Psycho II’ for example:
I’m bout to stop and get a fill-up, pick the new Cypress Hill up, and go find who did
That shit to Xzibit, and go fill up a whole liquor bottle wit piss and shatter his fuckin lips wit it
Could we imagine artists being allowed to do this in Australia, given the attitude of the current government towards sedition? I still remember the Howard Government’s political maneuvering when Eminem was due to tour here in 2001. More often than not, artists speaking their mind who get people riled up are used as pawns in the hands of conservative politicians. In Eminem’s case, the Government had created a fuss over whether he would be allowed to enter Australia and perform.
What limits should be placed on freedom of speech and should we distinguish between musical performance and other forms of expression? What about encouragement of drug use? Could it be that, as the Hilltop Hoods put it, in Australia legislative changes are moving us towards a situation where “You got freedom of speech, just choose to remain silent”?
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Freedom of speech should be absolute as long as you’re using your own property (or other people’s property through voluntary agreement).
What inciting? A song is a literary art form like a poem or a story. Was Nabokov inciting people to commit pedophilia because he narrated his story in the first person?
John: should defamation laws be scrapped?
Jason: I agree a different set of principles applies to artists.
But then there are other people who seriously incite others to violence, without using artistic freedom as shield. What should the state punish then – the incitement itself, or the people who actually commit the violence?
Incitement should preferably be handled by tort law, Sukrit. If there is a genuine victim, he can sue and win damages.
Yes Sukrit, defamation laws should be abolished.
Defamation is about damaging a reputation. A reputation is what other people think about you. Defamation laws imply that you own what other people think of you, but I think that each person owns their own thoughts.
Defamation laws should be abolished. There are better means with which public figures can defend their reputations. And why should parliamentarians have privaledges that the rest of us are denied.
Saying “I hate norweigens” or “I hate women” should be allowed. But saying things like “lets burn down the norweigen embassy at 8pm tonight” should be dealt with as a conspiracy to commit violence. And yelling “fire” in a crowded theatre just so you can watch a panicked crowd crush people to death should not be free from consequences. And the official that says to underlings “these villages should all be shot” can’t claim that it was just words.
In essence free speech should be absolute but some words in some contexts represent more than just the communication of abstract ideas or opinions. And in so far as they are used to execute ideas that are criminal in nature then they are rightly regarded as being part of the criminal act.
Defamation is a tort. It’s got nothing to do with ownership. It’s arbitrary to ‘scrap defamation’ and keep other torts. Let the common law handle it. There are very strict tests of causation in tort law.
Just to clarify, there should basically be no legislative restrictions on free speech. But free speech ends where it affects people’s property rights. This can be handled by the common law of tort. This is where issues such as incitement and defamation (subject to various defences) belong – defamation has nothing to do with ‘enforcing a property right in what people believe’. If business A puts out a press release saying that business B has horse meat in its burgers and leads to a dimunition in business B’s profits, why should you as a libertarian say business B has no right to sue? These things should be handled on a case by case basis.
Terje writes: “And yelling “fire” in a crowded theatre just so you can watch a panicked crowd crush people to death should not be free from consequences.”
The “fire in theatre” example is not a problem for free speech. It’s an issue of property rights. The owner of the theatre can set whatever rules they like, including “no shouting fire” or “no smoking” or whatever else they think is in their interest.
Perhaps parliament should get rid of negligence too
I’ve never understood why court decided the person who got sick from the snail in Donoghue v Stevenson couldn’t have left it at suing the retailer under contract. The retailer could have then themselves recovered from the manufacturer later.
How there is a link between the manufacturer and the eventual consumer, even if the retailer is unable to open and inspect the product between the time it leaves the manufacturer and reaches the consumer is beyond me. I would have thought under free competition retailers would insist manufacturers’ only sell them safe products.
Actually these arguments are related to getting rid of product liability laws. For instance, I trust Coles and Safeway – as middle-men between me & the manufacturers of the products they sell – to take necessary steps to ensure the products they sell are safe. For them, the commercial implications of selling unsafe products would be great.
Brian Bedkober of the Private Doctors Association has more to say on getting rid of negligence.
Wouldn’t business A have to be pretty sure of the facts? If business B fought back and proved A wrong, A’s profits could very well go down too.
I like the sound of this actually. A and B going at each other each trying to convince the public of the truth. Keeps everyone on their toes.
But then again, the court of public opinion isn’t a particularly great place to establish the truth.
Defamation with the defence of truth does not sound too bad. It does seem to strike a balance between allowing individuals the freedom to criticise businesses that have treated them badly (accountability in the capitalist system) and false claims.
If we had an example of a country without defamation laws that would be nice for comparison purposes.
Sukrit
Yes I think current defamation laws are too strict. But that doesn’t mean I want to get rid of them. Basically what matters is not whether something is speech or act (both really are ‘acts’) but what reasonably forseeable consequences arise from those acts, whether a compelling chain of causation can be demonstrated leading back to some loss, etc. Of course it’s better for this loss not to be some vague thing either. The economic efficiency rationale of tort law is the same as that of property law, though more as a supplement.
I’d prefer that we simply have a blanket set of rules or common law conventions to cover such acts of stupidity. And if individual property owners want to opt out they can put up a sign that says “yelling fire in our theatre and watching people get crushed in the subsequent panic is permitted”.
I don’t accept that shouting “fire” in a crowded theatre is adequately addressed by property rights. What if the person shouting was outside? Also, a stampede is coercive on all those affected, not just the property owner. Clearly they need a remedy too.
Perhaps some variation on the tort of assault might do it, but that would require new common law. That’s unlikely with torts, which change at judicial speed.
Torts are difficult for most non lawyers to understand, being based on lots of cases. Many people, including business, prefer the certainty and clarity of statutes.
I also don’t think there is anything inherently fairer about judges making laws rather than parliament. Perhaps if juries were used more in tort decisions it might be better. That is the case in the US, although it sometimes goes too far in awarding damages.
US defamation law differs considerably from Australian law, requiring proof of deliberate malice. Free speech in Australia would improve instantly just by adopting that approach.
Dave — the area outside a theatre is also owned by somebody. I think a person should be allowed to shout fire on their own property or on any property where they have permission. I very seriously doubt that this will lead to harm or that theatre owners (or their neighbours) would allow this. People always underestimate the ability of free people to find voluntary solutions.
I can’t see much benefit of getting the government involved in such matters, especially when you consider the government’s track record in fixing problems.
The stampede isn’t coercive (meaning: threat of violence) on anybody. It may invovle actual violence in the form of physical harm, but none of that is directly caused by the shouter.
Terje — I think your position is right. When you enter another person’s property you implicitly accept their rules which would reasonably be assumed to cover intentionally causing such hassles.
Davids suggestion regarding defamation reform would be a step in the right direction. Although it would not be the last step I would want to see taken.
Defamation laws imply that you own what other people think of you, but I think that each person owns their own thoughts.
I would have thought that reputation was a close approximation of the accounting concept of goodwill. Goodwill reflects a company’s ability to earn income greater than would be expected from its tangible assets and can be measured as the difference in value to it capitalization to its net asset ledger. The same can be said about reputation. A person who can earn higher income from their reputation who is subsequently defamed, has lost future income, just as if someone’s factory was burnt down. If defamation leads to a loss of earnings, does not the victim have a right to seek compensation?
If you operate a backery and I open a bakery next door to you am I stealing your goodwill? One prominant bakery franchise used to do exactly this choosing store locations next to existing bakeries and then sponging off pre-existing goodwill. And on many occasions they drove the stand along bakeries out of business and assumed all of the former goodwill.
If you sell high fashion stilletos and fashion changes, so that women prefer sandals, then has the guy that promoted sandals owe you some compensation?
As Terje implies — you don’t have a right to your goodwill. Like reputation, goodwill is what other people think of you.
Consider this: lots of people like shop A. Therefore Shop A has goodwill and makes lots of money. Then people change their mind. Shop A’s goodwill has gone down. Can they sue people because they stopped liking them? Who “stole” the goodwill? Who owns the people’s opinion of Shop A?
Loss of earnings isn’t nice, but nobody was born with a god-given right to earnings. If you want earnings you have to convince people to voluntarily & profitably trade with you. You don’t get compensation for the “damage” (sic) of people no longer liking you or wanting to trade with you. That is their choice.
What if someone actively spreads a believable lie about your business to cause you loss? You can prove it’s a lie and that they devised it and were involved in spreading it. Say any reasonable person would believe their motive was to cause harm to your business, however they did nothing more than initiate the distribution of an idea. You suffer a substantial loss as a result of this, say cancellation of a longstanding contract which unfortunately is unable to be re-established. Is the malicious rumourmonger guilty of a crime? Are you entitled to seek compensation?
No. You don’t have a right to other people’s money. Full stop.
People should be free to influence whoever they want. People should be free to believe whatever they want. People should be free to trade with whoever they want.
Maybe I should actually insist that you people answer my rhetorical question: who owns the thoughts in my head? Who owns the opinion I have of other people?
It is also a bit of a rhetorical trick to say that you suffer a loss. What you suffer is the absense of a gain. You weren’t born with a right to business contracts and trading gains. You only get them if you can get them voluntarily.
This is just like the issue of unfair dismissal. Does an employer have ownership of his opinion of his employee? Does he have the right to act on it, even if his opinion is wrong or bigotted? I think yes. Even if this leads to the employee suffering a “loss” (once again, it is not a loss but an absense of a gain). That’s what freedom means people!
If you operate a backery and I open a bakery next door to you am I stealing your goodwill?
Of course not.
It is not competition and economies of scale I am talking about, it is loss of goodwill through malicious intent.
If you opened a bakery next door to mine, what would be the difference between fire bombing my store or spreading false rumours about health standards and credit worthiness?
You don’t own what others think of you, but you do deserve the protection of the law against defamation. Freedom of speech does not imply freedom from responsibility for your actions.
If the credit check agency mistakenly gives you a bad credit rating and you are foreclosed upon by a jumpy creditor, is that your fault? Should you just wear it and walk away? My answer would be to defend my good name and pursue compensation from the credit agency. No one has a god given right to a good credit history, but they sure as hell have a right to defend their good credit history once they’ve established it.
I don’t see how you can compare malicious defamation by a third party to a loss of good faith by your customers through personal choice. You’ll have to come up with a better comparison than open competition.
What if I convince you to invest in my company by telling you lies about it?
That is (depending on the details) fraud. But don’t worry Michael, your investment is safe with me.
The ‘absense of gain’ argument is not watertight either. If I had a relationship which I had invested time and energy to develop into a contract, and your lies caused that relationship to end, then I have lost the product of that time and effort.
This is just like the issue of unfair dismissal. Does an employer have ownership of his opinion of his employee? Does he have the right to act on it, even if his opinion is wrong or bigotted? I think yes.
I agree. If you don’t want to hire white anglosaxon protestants or single mothers, that is your business. You are not harming anyone by not employing them, you are not initiating any force against anyone.
However, if you spead false rumours about a former employee, you are initiating force, the force of providing information, in this case false information. If you don’t think that providing ideas and information is a form of force, you wouldn’t blog or campaign for the LDP or ALS.
Publishing The Wealth of Nations, Das Kapital and Mein Kampf are all acceptable, because these texts are not targeted at specific individuals. However if someone published provably false information about a specific person, that person has the right to refute the claims and seek damages if he can also prove that the defamation was intended to harm his earning potential AND provide some gain for the defamer, in the same way that you should be able to claim compensation for having your shop fire bombed.
I really don’t understand the problem you have with the tort of defamation.
So spreading misinformation is unacceptable if I convince you to do something that is detrimental to you that you wouldn’t have done if you knew the truth i.e. fraud.
But if I spread minsinformation which causes you to do something that you wouldn’t have done if you knew the truth i.e. rumourmongering, then this is OK?
Brendan — please answer my question about who owns my opinions of other people and businesses. Is it me? Or the other people and businesses? If a business doesn’t own it, how can they sue for compensation when they lose it?
Malicious intent isn’t nice. But if I say you’re ugly with malicious intent then I think that speech should be protected. Even if you’re sad. Even if somebody else believes me. I own my mouth. Other people own their thoughts. You own neither my mouth nor their thoughts.
The difference between fire-bombing a store and using free speech is that the former is a violent violation of property rights and the latter is a person non-violently and voluntarily using their own property. Quite different. Outcome might be similar, but actions are very different.
I agree that other people’s free decisions & other people’s opinions can impact on you. We are a social creature. But you do not have the right to control other people’s opinions or their non-violent actions.
You can’t simply assert that defamation is bad. You don’t own other people’s opinions of you, therefore if somebody changes those opinions you haven’t lost anything you owned.
I never said that freedom of speech implied freedom from responsibility.
I’m not saying the world is fair. I’m sure people with no friends will tell you that they think other people’s opinions are very unfair. People who suffer from racism, sexism, homophobia etc often think other people’s opinions are unfair. But at the end of the day, freedom means you can do what you want with what you own… even if I don’t like what you do.
I agree that you should defend your good name if somebody starts spreading lies about you and you should be free to do that with absolute free speech just like everybody else. But you’re not due compensation just because somebody withholds something you never had a right to in the first place. Do you support unfair dismissal laws too? What about religious defamation laws? Should racist/sexist/homophobic speech also require compensation?
The reference to the personal choice of customers was about goodwill. Goodwill means people like your business. The point is clearly that you don’t own your goodwill so you can’t sue anybody if it stops existing. The people with the opinions (ie your customers) own their opinion of you. It’s very sad if you lose your goodwill (or if your friends start hating you). But it shouldn’t be against the law.
Michael — Regarding loss from voluntarily doing work on a contract and not getting a contract, that was all your own doing. Nobody took anything from you. You would make such a loss if you didn’t get the contract for whatever reason. Consultants put up with that all the time.
Fraud is effectively breach of contract. Consider a simplified version: “if you give me a big mac I’ll give you $3″… and then when you give me the big mac I walk away.
Contrast: “you know that Brendan guy, I hear he’s black” (even if he’s white) and then you refuse to hire him because you hate black people.
Sure, it’s not nice of me to lie or of you to have a negative opinion. But it’s a free country. Or at least it would be if I ran it.
Brendan — I’m glad you think that people are free to do what they like with their bigotted and wrong information. And I agree that they are not initiating force. Just like defamation.
However you are wrong to say that such bigotry doesn’t “hurt” anybody. It hurts the people who don’t get a job because of it in the exact same sense as somebody not trading with after losing goodwill you “hurts” you (ie through absense of gain).
There is no initiation of force in spreading false rumours. Saying it three times won’t change that. Spreading rumours involves only your own property and other people who are listening/reading voluntarily.
Brendan: “If you don’t think that providing ideas and information is a form of force, you wouldn’t blog or campaign for the LDP or ALS.”
This comment really makes me worried about how well you understand the concepts of freedom and force. Free speech is “influence” but not force precisely because it doesn’t involve the violation of property rights. You are making the same mistake that lefties make when they say that Coke adverts force people to drink coke. It doesn’t. And the LDP & ALS does not force anybody to do anything, but we do try to use free speech to influence people. Influence is non-violent. Influence should be protected in a free society.
Once again you try to equate free speech with fire-bombing. Seriously Brendan, you’re going to have to learn the definition of violence and non-violence. There is no violence involved in typing on your own computer or writing on your own paper.
The problem I have with the tort of defamation is that it is not consistent with the basic principle of liberty: that you are free to do whatever you want with whatever you own.
As a side point while we debate the theory, I think the practical considerations of what we are debating really also deserve consideration.
I work in a contractual area and deal with large companies vying for hundreds of millions of dollars of business. Quality information is essential to doing business. If there was no cost to spreading lies about your competitor it would become such a shit fight that you couldn’t do business and everyone would lose. People who want to do business in good faith need protection from those who would prevent good trade from happening. It is not as simple as you putting the product on the table for me to assess, me making the assessment and handing over the agreed price. A complex contract has information coming from everywhere and the ability to influence the outcome of a tender evaluation through misinformation is huge.
Giving someone the same legal protection to spread lies as act honourably has serious negative practical consequences. It’s stuff like this that makes people challenge libertarian thought as ‘childish’.
This is the same sort of argument any socialist puts up as to why something can’t be legalised or deregulated — people are too stupid to find a voluntary solution. Simply untrue.
First, a free market gives an incentive to deal honestly. Second, if there is a market for good information it will be provided (and already is in lots of areas). Third, having the government looking after the issue hasn’t helped much (people defame all the time, but only the rich can sue). Forth, a government solution removes the responsibility for making good decisions away from the people. “Don’t need to worry” people wrongly tell themselves “the government will protect me from bad decisions”. Not only is it not always true, it’s a bad mentality od government dependence. Finally, defamation is abused much more often that it is honestly used.
All the same arguments apply regarding the licencing of proffesionals (doctors, lawyers etc), regulating most industries, and the misguided campaigns to enforce labelling on everything.
There is nothing childish about freedom. What is childish is the silly notion that if you remove the defamation tort then suddenly nobody will be able to differentiate the truth from a lie and suddently the current system (where no lies are ever told) will be horribly corrupted by evil free individuals.
Brendan — please answer my question about who owns my opinions of other people and businesses. Is it me? Or the other people and businesses? If a business doesn’t own it, how can they sue for compensation when they lose it?
Ownership of thoughts and opinions is akin to intellectual property and copyright, you own what is inside your head. I am not suing over what is or isn’t in your head, I am suing the person who initiated force by spreading false information and the loss of income resulting from that.
Malicious intent isn’t nice. But if I say you’re ugly with malicious intent then I think that speech should be protected. Even if you’re sad.
I agree that suing over hurt feelings is nonsense, but suing over defamation that leads to loss of income for you and personal (financial) gain for the defamer is real.
A cricketer who has his sponsorship contract cancelled due to a falsely accused and published indiscretion by a tabloid because his contract has a morals clause loses real income and the newspaper experiences financial gain through increased sales. The actions of a third party have caused financial loss through no fault of the victim. Why shouldn’t he be able to pursue lost earnings? He could have sold the right to earn that income to another person at any time, so the contract was an asset, similar to an annuity. If a third party defraud you out of an annuity, is that not theft? Why do you not consider the loss of income through fraudulently lying about someone’s reputation theft also?
I am not talking about publishing an opinion saying, “I think Britney Spears is unattractive and can’t sing very well”, that is hardly defamation in the way I am describing. But if you publish some falsehood that leads to someone losing income, there is a difference, especially if there is intent.
The problem I have with the tort of defamation is that it is not consistent with the basic principle of liberty: that you are free to do whatever you want with whatever you own.
…unless it impinges on another’s right to enjoy and make use of their own property.
If you spread lies about my bakery and I get closed down for investigation by health inspectors, have I not lost the free use of my property? My beef is really with the health inspector for believing your rubbish I suppose. I guess even in my example above, the dispute is with the sponsor.
I am starting to see your point on defamation not being consistent with property rights, but how do you otherwise increase the transaction costs for liars, defamers and slanderers?
a government solution removes the responsibility for making good decisions away from the people. “Don’t need to worry” people wrongly tell themselves “the government will protect me from bad decisions”.
My understanding is that the tort of defamation has its origins in common law, not parliamentary legislation. I have no problem with removing any statutes that modify the common law understanding of defamation.
Civil courts are not a government solution.
This comment really makes me worried about how well you understand the concepts of freedom and force. Free speech is “influence” but not force precisely because it doesn’t involve the violation of property rights.
I must admit, rereading my comment, I’m not convinced of my own argument either, it was a pretty lame, argumentative attempt.
I understand force/violence is a violation of property rights, and that the written word is not violence even if it involves an assault of character.
Wielding influence is a non violent action that can lead people to change their beliefs and actions.
I am still concerned about how an individual can protect themselves from the results of defamation. Perhaps there is a market for “loss of goodwill” insurance, since if freedom of speech leading to loss of reputation is similar to storm damage (you can’t sue the weather) in a libertarian world, but I can buy an insurance policy to protect me against the vagaries of the weather. However insurance would increase my transaction costs, not the defamer.
You’ve got me in a corner here. Do you have any other solution besides taking it on the chin and loudly proclaiming that your defamer is wrong?
It is a big person that can admit that they were wrong.
Michael, I work in IT and I can tell you that companies lie about their product capabilities all the time. Once they lie in a contract document it is fraud. Telling lies about yourself for personal gain is not the same as defamation.
I think that companies being able to sue for defamation is even worse than individuals being able to do so. The campaign that Gunns is waging against protesters in Tasmania is a discusting abuse of legal power. If Gunns has a reputation problem it should undertake a PR campaign, not slap individuals.
Fear not Brendan. Another beauty of the free market is that there are considerable costs to being known as a liar, defamer and slanderer. David Friedman showed that in a voluntary society the honesty strategy has more rewards than in an involuntary society. Dan Dennett showed that the best way to built an honest reputation is to actually be honest… and that reputation has more value in a free society than a quick buck from dishonesty. And if you look at freer countries you generally see higher levels of private charity and civil society — indicates of a sense of community & consideration for others.
If you are a good person, your friends are unlikely to believe a lie spread by somebody without a reputation among your friends. Same applies with businesses. One of the best ways to combat defamation is to keep your character so clean (by not defaming others) that you are trustworthy. If a hater of the ALS showed up and said that I had just clubbed a baby seal to death, and I denied it — who would you believe?
Also, don’t overestimate how effective the current laws are. They are more often abused (to shut down criticism) than used due to the cost of bringing action. Also, bare in mind that current defamation laws are nothing like what you want. They are over the top and much worse than the US system (most bloggers could be sued 20 times over each year). This is a good reminder that you don’t get to pick “perfect intervention” as a realistic option. The option is a market (with occasional failings) and intervention (with cronic failings).
While it seems like you’re coming around, I’ll address your cricket example anyway. It is true that a cricketer (like anyone) can suffer negative consequences because of the actions and opinions of others. However, nobody violated the property rights of the cricketer. Other people’s actions impact you all the time — consider the impact if everybody simply refused to trade with you ever. Not nice. But not violent. If you believe the cricketer had an asset that’s been stolen, show me the asset. The reality that the “asset” exists in other people’s heads (ie their opinion of the cricketer).
Finally — regarding defamation as a tort instead of statute. I agree that blurs the appropriateness of the words “government intervention”, but I am using that as short-hand for “government backed action that violates property rights” (which is too long to type repeatedly).
John,
I am utterly horrified to learn that you have clubed a baby seal. How could you do that? And then you make things worse by denying it. You really are sick.
Regards,
Terje.
The baby seal started it…
I sort of agree. However, our reputation is our most valuable asset, whether we are an individual or business. I still don’t get how protecting your reputation in a court of law (where the truth of the matter can be ascertained) is not desirable in a capitalist system based on competition and reputational effects. Whatever defamation is based on – common law or statute – a court is best placed to consider the individual scenario and rule appropriately. The truth should always be a complete defence. Though, without having learnt media law properly yet, I concur that the current system is more beneficial to lawyers than anyone else.
Also, why is the argument that big companies like Gunns are trying to deflect criticism relevant? The onus of proof is on them in any case isn’t it? If they lost on the balance of probabilities it would probably be worse for their reputation than to have relied on non-legal means.
John has a point here. Racism, sexism, homophobia can all have a monetary cost on individuals in the form of lost income too. Perhaps the racist attitude arose in an employers mind due others relating their experiences with blacks (for example). However, spreading lies about race and gender isn’t aimed directly at an individual – seems to me defamation goes beyond that.
Don’t studies show people who are more attractive get better jobs?
This makes sense. Should we also get rid of patent protections?
Does anyone know if the onus of proof in relation to ‘truth’ is on the defendant or plaintiff?
Sukrit, stop it. Repeating yourself doesn’t help…
“our reputation is our most valuable asset”
You don’t own your reputation. Your reputation exists in my (and other people’s) head. Who owns my head? Seriously. Answer that. Then everything else falls into place.
If you don’t understand why defamation suits are undesirable in a capitalist system then you don’t understand why private property rights and freedom are desirable. Defamation suits are inconsistent with private property rights (my opinions, my computer, my pen & paper) and my freedom to use them as I see fit.
You admit the current system is broken, but instead of losing faith in government you simply insist that the government can fix the system. How touching. If you’re going to have irrational faith in the goodness of people perhaps you should focus that towards your neighbours instead of the government.
Intellectual property (IP) is an argument for another day — IP rights might be a good idea (for encouraging innovation) but they are a violation of basic property rights because (once again) they assume that information in my head belongs to somebody else.
In most states in Australia, truth is not a valid defence & therefore not relevant.
No. The onus of proof is those that have made the damaging statements. If I call you a “crazy terrorist” and you decide to sue me for defamation then under defamation law the onus is on me to prove that you are a “crazy terrorist”. Essentially I am assumed to be guilty of telling lies until I can prove otherwise.
However I should warn you that I am not a legal expert so somebody with more qualifications might wish to better qualify my statement.
Perhaps the most famous case of this nature is the McLibel case in England. See the wikipedia article:-
http://en.wikipedia.org/wiki/McLibel_case
Ah, ha. So you admit it now.
David Friedman showed that in a voluntary society the honesty strategy has more rewards than in an involuntary society. Dan Dennett showed that the best way to built an honest reputation is to actually be honest… and that reputation has more value in a free society than a quick buck from dishonesty.
I understand this in contractual relationships, but I do not understand how “honesty is the best policy” in non-contractual relationships such as libel commited by a tabloid where sensationalism pays and truth has little reward. Sure the weight of influence of tabloids is dimished compared to broadsheets (they don’t have a reputation themselves to defend), but as can be seen in modern media, it is not uncommon to read what was previously the domain of the tabloid on the front pages of the broadsheets within weeks of a truly sensationalist story.
Finally — regarding defamation as a tort instead of statute. I agree that blurs the appropriateness of the words “government intervention”, but I am using that as short-hand for “government backed action that violates property rights” (which is too long to type repeatedly).
I would have thought that in libertopia civil courts would be independent of the state absolutely and that the only reason to comply with a court’s ruling would be to protect one’s reputation. I was of the opinion that libertarians also advocated freedom of choice with respect to whom judges them? For instance, competing courts whose cliental, plaintiffs and defendents, only choose them because of their impartiality.
I don’t advocate state intervention in civil courts, which is why I question your dismissal of the common law form of defamation (if my intepretation of your comments are correct).
I saw the baby seal, he had it coming, all those filthy rumours about you and the walrus…
Regarding the issue of anarchist justice. Interesting stuff, but an issue of considerable debate among libertarians and I was assuming we were looking at a minarchist world were the courts gain their authority from the government and use the government to enforce their decisions. If we’re talking about anarchist justice then my position has to become more nuanced… but I’m not up for that debate today!
I doubt you’ll lose too many friends or too much business from the rantings of a sleeze rag that everybody thinks is a sleeze rag. The only way people will learn to trust a newspaper is if they’re relatively honest. But I accept that lies can sometimes be believed and can hurt (even if nobody believes it). I just don’t see the alternative to the free-market system as any better and I think it’s dangerous to start limiting free speech or the sanctity of private property rights for such issues.
Regarding the issue of anarchist justice. Interesting stuff, but an issue of considerable debate among libertarians and I was assuming we were looking at a minarchist world were the courts gain their authority from the government and use the government to enforce their decisions.
Ok, let’s assume a minarchist position. How would you go about preventing the common law tort of defamation from being used?
I just don’t see the alternative to the free-market system as any better and I think it’s dangerous to start limiting free speech or the sanctity of private property rights for such issues.
Who said anything about limiting free speech? Free speech is paramount.
Reputation may not be involve property rights, but we go to court regularly over issues that aren’t property rights. For example custody or guardianship of children in divorce cases (assuming you agree that children are not property). Is there a free market solution to such cases?
I agree that state sanctioned defamation law as it exists now exceeds the bounds of what a free market would result in, but I can’t advocate the state stepping in and preventing people from seeking justice for real wrong doing in a court that has a well established common law basis for defamation. Common law is evolving, and if we have faith in libertarian principles, then the courts will work out the balance required without intervention by the state. Laissez faire justice.
How would you go about preventing the common law tort of defamation from being used?
How about a constitutional protection of freedom of speech. Or even more simple — a constitutional protection of all private property rights except for clear and specifically mentioned areas (e.g. defence, upholding contracts, policing property rights violations etc).
At a minimum, some simple legislation that protects free speech. People should always have the right to say what they want using things that they own.
Some legal corrections: (how do I use italics in this damn blog?):
“…In most states in Australia, truth is not a valid defence & therefore not relevant…”
Not true. Truth is a defence in all states, but not a complete defence in some.
“…If I call you a “crazy terrorist” and you decide to sue me for defamation then under defamation law the onus is on me to prove that you are a “crazy terrorist”…”
Not only that, in some states (eg NSW) you must prove that saying so was in the public interest. Yes, I agree it’s stupid.
“…regarding defamation as a tort instead of statute…”
They are enforced in the same courts, so what’s the difference? A judge making the law versus parliament making it?
Back on opinion:
“…The “fire in theatre” example is not a problem for free speech. It’s an issue of property rights…”
I still disagree with that, unless you create property in reputation. That happens by default when assessing damages, but not otherwise.
Absolute free speech is like absolute freedom of behaviour – it can be coercive of others. (Incidentally, coercion does not necessarily mean violence. It means all forms of forceful compulsion.)
“…Common law is evolving, and if we have faith in libertarian principles, then the courts will work out the balance required without intervention by the state…”
There’s nothing inherently libertarian about courts and the common law. It’s just a judge making up law instead of interpreting a statute. If juries were involved in verdicts, it might be a bit more libertarian.
“…How about a constitutional protection of freedom of speech…”
It would be an improvement. But we still need to be clear about what kind of speech should be protected, or at least what kind (if any) should not be. Coercive speech seems like a good place to start. We just have to work out what that is.
I think we’ve exhausted this subject. I understand your argument regarding free speech and it’s protection and I agree. But I haven’t been convinced that the tort of defamation necessarily conflicts absolutely with this principle. Simply repeating that you should be free to say what you want using your own or legally borrowed resources is not enough to convince me that the state should do anything but constitutionally guarantee our rights (under a minarchost scenario) and that the courts should be free to interpret the constitution taking into consideration the precedence of common law.
I’d propose that the courts would not have the power of preventing you slandering someone, but would have the power to compensate someone for financial loss resulting from that slander. The slanderer would be free to leave court and slander again if he likes, and the victim would have to decide whether to seak justice again or whether the original ruling that the slanderer is a liar is sufficient to protect his reputation.
The transaction costs of suing for defamation would be quite high, and most people would probably cop the libel and fight back through their own free speech. Court proceedings would be (and are) a last result for most.
(how do I use italics in this damn blog?)
You use “(i)”and“(/i)” replacing the ( and ) with triangle shaped brackets around the words you want to italicise.
They are enforced in the same courts, so what’s the difference? A judge making the law versus parliament making it?
Common law is not subject to authoritarian whims of the legislature.
Jeez — this issue is confusing a lot of people.
The “fire in theatre” example is an issue of property rights because the owner of the theatre creates the rules about behaviour on their property. It’s not about ownership of reputation. You don’t own your own reputation. Your reputation is what other people think of you… which is in their heads. People own their own heads.
“Absolute free speech is like absolute freedom of behaviour – it can be coercive of others.”
Not true in any meaningful sense. “Freedom” only makes if we mean free to do what you like with what you own. Under that consistent libertarian definition it never involves violence or coercion. Just like free speech.
If you define “freedom” as the freedom to kill (and generally use violence) then the word becomes meaningless. That is not the definition as generally used by libertarians.
Brendan — you are free to disagree, but you’re making no sense.
You say: “the state should do anything but constitutionally guarantee our rights (under a minarchost scenario)”
In a libertarian society those rights are to do what you like with what you own. That’s it. So if you went to court and complained that I used my own property to write something you don’t like, you would be laughed out of court. The constitution defends my right to do write what I like with what I own. Defamation tort would violate a libertarian constitution.
Of course, you could go to a third party and ask them to judge the truth and publish their report. That has nothing to do with compensation, defamation tort or suing.
Brendan — you are free to disagree, but you’re making no sense.
Gees, thanks for that. And here I was thinking I was having a constructive discussion trying to understand a libertarian stance on defamation.
Of course, you could go to a third party and ask them to judge the truth and publish their report. That has nothing to do with compensation, defamation tort or suing.
Ok, defamation may be out of the equation. But if someone broke of a contract with me on the basis of false information, would I not be able to seek compensation from the person I have a contract with for reneging on a contract? For instance, if someone states that I have broken a moral clause in a contract, I can show that I in fact didn’t, then they are in the wrong and should hold up their end of the contract? No violation of free speech here, I am merely defending my binding contract. It is bad luck for both parties that someone lied and my reputation was harmed (making both the income I can earn and they can earn less), but I haven’t broken my contract, and the risk of my reputation being unfairly smeared is shared by both parties who have a vested interest in my reputation.
This of course is not suing for defamation, but suing for the results of someone incorrectly believing that defamation against my good faith and word.
A is defamed by B
C reneges on contract with A because of B
A seeks compensation from C for acting on B’s defamation
If C had a contract with B for providing true information on A, then C would have a case against B
The tort of defamation is not involved in this scenario, only legally binding contracts. Is this the sort of free market solution you are heading towards?
This gives no compensation for hurt feelings, only real compensation for real losses born out of someone acting in bad faith due to the defamation of another. The act of defamation in not compensatable, but acting on that defamation is.
Perhaps I should have qualified that… “I’ve enjoyed the chat & you seem very smart… but you’re making no sense”. I didn’t mean to be offensive. But you weren’t.
Switching the discussion to enforcement of contracts or fraud will probably bring us into agreement. Both are forms of theft and I agree you should be able to sue for breach of contract. I should add — now you’re making perfect sense.
Thanks for the conversation.
Jeez — this issue is confusing a lot of people.
In this case it might be you John. I normally follow your reasoning, but not here.
“Freedom” only makes if we mean free to do what you like with what you own. Under that consistent libertarian definition it never involves violence or coercion. Just like free speech.
Non-coercion is not inherent in being free to use what you own to do what you like. If I use my gun to coerce someone, I am using my own property but it is not a valid exercise of freedom. If I use my voice to shout fire into a theatre (from the footpath) and cause a panic and stampede, that is also not a valid exercise of freedom.
I agree that reputation is different, although there are elements of property rights in a commercial context.
Common law is not subject to authoritarian whims of the legislature.
So the authoritarian whims of a judge are preferable? They can’t voted out and criticism is muted because of contempt laws. I don’t think so.
My definition of freedom (do what you like with what you own) works and is 100% non-coercive. Further, it is the only definition that works. Niether of your examples contradict this:
1. Using your gun to coerce somebody. You don’t own that other person. So you can’t do what you like with them. To be able to freely shoot somebody in the head, you need to own (a) the gun; (b) the bullet; and (c) their head.
2. Shouting fire. The person who owns the footpath can decide the rules for the footpath. How people respond to your free use of your own property does not invalidate the definition of freedom. If I say “you’re ugly” and you lose utility, that does not mean I have violated your liberty. If I say “fire” and you lose utility, that does not mean I have violated your liberty.
The common problem people have here is to assume that “freedom” = “good”. It doesn’t. Those are different words. I went to great lengths to explain this issue at the LDP blog regarding the shooters freedom. It is possible for a free situation to lead to a bad outcome, but that doesn’t mean it wasn’t a free situation. As a libertarian, I think freedom generally leads to a good outcome. Especially with regards to free speech, I think any potential utility loss in any situation (ie your ugly, fire, Brendan ate his pet dog) is a small price to pay for having absolute free speech.
To coerce with a gun you don’t need to shoot anybody. Speak some threatening words and a wave the gun about and you can do a lot of coercing. The threats could be lies and you have not shot anybody and as such you have not technically violated anybodies property rights. And the fear in their mind belongs to them so you have no responsibility for that at all.
Others might judge that a little bit of a compromise on freedom is worth it to remove the loss of utility for a given situation. If utility is the benchmark you would need to show why the little bit of freedom lost was a big deal.
How people respond to your free use of your own property does not invalidate the definition of freedom.
It does invalidate it when it is coercive eg a threat. Threatening with a gun without shooting them is coercive. They cannot tell that a threat is not real and it is natural to respond as if it is genuine. No matter who owns the footpath or what their rules are, shouting fire is potentially coercive because survival instincts are hard-wired and some responses are not a matter of choice by the listener. It’s quite different from saying ‘you’re ugly’, where choice determines the response.
As I said, I’m having trouble following your reasoning here.
Depends on the nature of the threat. I agree that a direct threat (“give me your money or I’ll kill you”) would be coercion. But holding a gun and looking nasty isn’t. The first person is dealing in propety that is not his (your life), which is fraud.
I agree that others might want to compromise on freedom of speech (or freedom of anything for that matter). But I don’t need to show anything. The burden of proof rests with the person who wants to defend the intervention. I don’t see any evidence that restrictions on freedom of speech have made any country better.
Dave — people have a choice whether they run or not. If I say “stand in front of a train” I have not coerced you. Though this is a largly moot point as I doubt there would ever be rules that allowed shouting fire.
If we want to create unrealistic lifeboat stories to show how much we need government I have a better one. You own a property. Somebody buys all the property around you and then refuses to allow you to travel over their property. You starve to death. While thought-experiments are fun, I don’t think these sort of examples give a compelling reason for government intervention.
And offering a choice of “money or death” is dealing in property that’s not yours. You’re not allowed to deal in property that’s not yours.
Actually “hard wiring” is not necessarily the case. Things can be learned and unlearned.
Calling some people “ugly” or “stupid” will provide a reflexive fit of anger over which they appear to exhibit little choose or control. However we know that such reflexive behaviour can be trained out.
Likewise people can be taught not to panic in a manner that kills lots of people. When people think there is a fire in a theatre and there is an apparent lack of exits (ie crowd is moving out slowly) people may panic. The crush can lead to lots of death. However if they leave in an orderly manner few or zero people will die. In the military people are trained to respond in a manner that minimises the loss of life rather than to primarily defend their own life. The exit from Gallipoli is an example of an orderly exit. Being the last Australian on the battle field that night was not the most rational position to occupy in the pack but an orderly exit allowed maximum utility overall.
People can learn to act for the good of the tribe over and above their personal utility. In fact in some ways it is possibly hard wired in so far as we believe in morality.
There seems to be some confusion here when it comes to calculating damage in a defamation suit. If I sue someone because they have spread falsehoods about my business, say, then I wish to be compensated for any losses caused to my business by that falsehood. This compensation will be in the form of money; to use the lawyer’s phrase, ‘damages are an adequate remedy’.
Alternatively, if a columnist in a major metropolitan daily compares me to Martin Bryant (something that happened to me in 1996), then damages are not an adequate remedy. In all probability, I don’t want money. I want a retraction. This is where equitable remedies come to the fore. In brief, ‘equity’ has nothing to do with social justice. It emerged in the 1400s in response to situations where damages were clearly inadequate.
(Note to self: I wrote a reasonably decent short history of the equitable jurisdiction a couple of years ago. I think I’ll dredge it up and post it so these points are clearer).
Of course, comparing someone to Martin Bryant (in the context of a piece of attack journalism) has negative flow-on effects that may be calculated in monetary terms – in my case, it became difficult for me to find employment. However, that takes time. The law looks to nip these effects in the bud, so the remedy sought will be an interim or interlocutory injunction preventing further publication of the smear and a retraction placed in the newspaper within a few days, in a position of equal prominence.
I personally don’t think this is a particularly effective remedy, and am probably in John’s camp when it comes to advocating abolition of the tort of defamation, or at least major modification along American lines. There is a much simpler remedy available: exposing the media to s52 of the Trade Practices Act. At the moment, the press enjoys an immunity no other corporation enjoys – exemption from actions commenced under the ‘misleading and deceptive conduct’ provisions of the TPA. I’ve blogged on this at length over at Catallaxy, so won’t recap my legal arguments here.
This has the benefit of simplicity. The law itself is statute based but has been extensively tested in the courts (ie it’s a ‘good’ statute in the Hayekian sense that it mimics the end-independent, abstract qualities of the common law).
It also drains the ‘ownership’ and ‘reputation’ elements out of the issue – something which is genuinely problematic for anyone who thinks carefully about the concept of property rights.
[...] I noticed while reading the Free Speech and Music thread that there was considerable confusion about the nature of remedies available in defamation cases. This post should be read as an adjunct to my comment on that thread, and – it is hoped – it should make arguments about reputation, rights and compensation a little clearer. [...]
Pingback by What is Equity? « Thoughts on Freedom | December 8, 2006
Reading over this thread again, I’ve come to the conclusion that John is right.
I can’t wait till next year when I get to do optionals and tell the media law lecturer that a large part of his subject shouldn’t exist and should be relegated to the dustbin of history.
Same goes for much of labour law.
ok…freedom of speech is not an all around thing….like eminem for example his music lyrics got him sued multiple times…THATS NOT RIGHT….he should be allowed to say whatever he wants whenever he wants WITHOUT it being bleeped out
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