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.

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.

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.

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.

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.

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.

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.

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.