Foundation for legally preventing defamation

[DavidOdden]

It seems to be widely (but not uniformly) held by Objectivists that there should be legal sanctions against defamation. While defamation is, like porn and postmodernism, in the class of things I don’t like, it is not obvious to me what the philosophical basis is for invoking governmental force to prevent it. There have been some previous discussions of this matter (here, here, here), however, I haven’t found a satisfactory defense of the illegalization of defamation there. I would like to raise this question again, but make clear some points that were not evident from the beginning in these threads.

First, defamation is making a false statement to a third party, which accuses the second party of an action and causes damage to them. There is a distinction between libel and slander which is only of historical interest: it doesn’t matter here whether the statements are spoken or written. The crucial elements are “false”, “accusation” and “damage”: if you accuse a person of being a thief and they are a thief, you are legally excused. The statement must allege blameworthiness, i.e. doing or being something bad; and as plaintiff you have to be able to show that making the statement caused damage to you. That means that the accusation has to be accepted by some third party (that is, just insulting you privately is not defamation, and the third party has to actually believe my insult).

One line of thinking on the matter is that defamation is a kind of fraud. However, a fraud analysis is wrong. Fraud is securing an exchange with a second party, with the second party relying on false information. The crucial elements here are reliance and exchange, and as an essentially contractual matter, it is subject to privity of contract (it is limited to the agreeing parties and not bystanders). In the case of defamation, I may have no direct dealing with the defamee or the third party, so I have not necessarily secured a material gain with false information. (You might imagine using defamation as a means to perpetrate fraud, but then the act is directly punishable as fraud, not as defamation). Defamation simply does not satisfy the requirements of fraud.

On occasion, the sentiment is mooted that people have a legal obligation to be truthful: I think that is a really bad, indeed indefensible idea, but if a coherent argument can be made for outlawing all untruths, I’m interested to see that argument.

I want to mention the possibility of a new crime (or civil tort), the crime of “false praise”. This crime involves making a false statement which praises a second party, and acceptance of that praise by a third party then causes damage to the third party. For example, extolling the virtues of a painter when in fact the painter did a lousy job, and somebody believes your laudatory statements. I mention this because it’s something that a proper grounding of defamation needs to address. Thus a theory that based an anti-defamation law on “taking responsibility for the consequences of your actions” would lead not just to a ban on defamation but also a ban on false praise. Whether that is a good thing or a bad thing is another issue, the point is that “false praise” is just the flip side of the same coin that defamation is stamped on. BTW, false praise is not presently legally actionable, AFAIK anywhere in the free world.

An alternative theory is the “reputation as property” theory. You own your reputation because you create it, thus it can be legally protected by law. The problem with this is that a reputation is an evaluation in some other person’s mind, it is not simply the fact of your previous acts. The fact of your previous acts cannot be changed -- you did what you did, no matter what I then say about it -- and if a reputation were just the acts, then a reputation could not be damaged. The problem with the reputation as property theory is that it is founded on the assumption that another person can own part of your mind, or a part of the minds of many people. I presume that I don’t have to argue that one man cannot own another man’s mind, even in part.

Now then: is there a coherent and objective grounding for legal prohibition against defamation? The question is not whether defamation is a good thing, it is whether objective law should prohibit it.

[IAmMetaphysical]

I have not read those other threads but you missed this argument which ties into the "reputation" thing a bit.

I have a right to engage in activity with other consenting adults (whatever that activity may be). Those other people's willingness to engage in said activity rests on their perception of me. If they have an accurate perception of me they will engage in said activity, so in a way since it is an accurate one that corresponds to reality, I have a right to the uncoerced willingness of the other person's choice. (note I said choice, not that I have a right to a certain choice) What a defamer does is to strip that uncoerced willingness from that person, thus depriving me of excercising my right to engage in said activity with them. They are preventing me from acting on my own judgement of reality, by not allowing me the objective evaluation of others.

(I don't think I worded that quite right, but I hope you get the point. I have a right to live, this includes the right to deal with others on a basis consistent with reality. The defamer injects the unreal into my relationships with others, thus depriving me of the free excercise of mine and others' judegment.)

[IAmMetaphysical]

And in the case of "false praise" he wouldn't be preventing me from anything. He would only be giving me more chance to deal with others based on my real merit, and if it were really false, I would be the one to lose their willingness to deal with me.

[edit for typo]

Edited September 14, 2006 by IAmMetaphysical

[Spano]

I agree with what DavidOdden has said. I'm also interested to see a proper defense for such laws, if one exists.

I have a right to live, this includes the right to deal with others on a basis consistent with reality. The defamer injects the unreal into my relationships with others, thus depriving me of the free excercise of mine and others' judegment.)

But remember that according to Objectivism, rights pertain to freedom of action. Thus, you have the right to be free to deal with others on a basis consistent with reality, but you do not have the right to have others provide that for you, or to force them in any way to bring this about.

Also, you are equivocating on the definition of force with your use of the fuzzy term "inject". When a person accuses me of a falsehood, he does not use physical force, but uses his capacity of speech and persuasion. If another person accepts his ideas about me, where is the force?

[IAmMetaphysical]

You're forgetting that fraud is an indirect form of force. Force does not mean simple physical force.

True, I do have the right to action, and the protection from defamation is not a requirement that anybody provide anything for me, they do not have to give praise, only abstain from preventing me from dealing with others on a basis consistent with reality, abstain from preventing my actions of dealing with others. This is why it is not simply the act of telling a lie about someone, but the act of getting others to believe a lie, because if an unreliable person told a lie about me that no reasonable man would believe, he has not violated my right to action. I have a right to the relationship I would have had with the man who would have dealt with me had he known the truth about me.

[DavidOdden]

Michael, there are some assumptions in your argument that I think need to be challenged. One is that other people's willingness to interact with me is caused by them having an accurate perception of me. That is the best state of affairs, but still, some people do not act fully rationally, and they will let things other than my actions determine whether they will deal with me.

The other is the implication that the defamer coerces the third party into making some other choice. I'm trying to get a grip on your argument that you have a right to the uncoerced willingness of the other person's choice. More directly, I have the right to act (rights-respectingly) according to my uncoerced choice, and you have the same right to act according to your uncoerced choice. If we both uncoercedly chose to have some interaction, then we will, and that is our right. The only way to improperly prevent that interaction is to coerce one or both of us. But you can prevent that interaction by influencing a person, which involves no coersion.

The defamer does not and cannot coerce either party. Even if the defamer has the intention to prevent a voluntary interaction between people, he does that by influencing someone's voluntary choice. The third party who decides not to interact with you choses voluntarily to accept the statement as true. If somehow the defamer could force me to accept the statement as true -- if they could force my mind -- that would be an improper use of force (though the rights violation would be against the third party and not the defamee, whereas under the law, the defamee is the one who gets the benefit of governmental force). As you said, I have the right to accept a relationship with another person if they are willing -- if they so choose, and furthermore, I do not have a right to "a particular choice". The third party then voluntarily chooses to not interact with me, because he is not acting fully rationally and has decided, without sufficient basis, to accept my say-so. He has the choice to check the facts, and chooses not to do so. I have the right to enjoy his business -- if he is willing to make that choice, however he arrives at that choice.

I can't tell whether you accept, as a corollary, the idea that a third party can also properly call upon the law because he was deprived of his right to not interact with a person. The praisee isn't the one who is "prevented" from something, under your analysis, it is the third party (who is prevented from acting on his judgment of reality, buy not allowing the objective evaluation of others).

You put emphasis on the "preventing" aspect of these interaction -- but by your act of lying about the flaws of a person, I am prevented from walking away from the deal. In neither case is there any actual "preventing" in the use-of-force sense. There is, unquestionably, a lapse of judgment on the third party's part, in not using his full rational faculty to determine what is real. BTW, fraud does reduce to actual physical force. It amounts to forcibly keeping and not returning property which you do not actually own (since the conditions for exchange of property are not satisfied).

Now given your last post, it sounds like you would actually support a form of the "lies are against the law" principle. Specifically, are you claiming that all credible lies should be against the law? (That covers not only the difference between lies by believable people vs. unreliable people, but also outlandish lies that no reasonable person would believe, no matter who told them).

[Capitalism Forever]

The third party who decides not to interact with you choses voluntarily to accept the statement as true. If somehow the defamer could force me to accept the statement as true -- if they could force my mind -- that would be an improper use of force

Couldn't the same be said about fraud? "The defraudee voluntarily accepts the fraudulent statement as true. If somehow the perpetrator could force you to accept the statement as true--if they could force your mind--that would be an improper use of force."

[DavidOdden]

Couldn't the same be said about fraud? "The defraudee voluntarily accepts the fraudulent statement as true. If somehow the perpetrator could force you to accept the statement as true--if they could force your mind--that would be an improper use of force."

The essential difference, and this is central to the concept of fraud, is that a person agrees to transfer ownership of his property only if certain conditions are met, and those conditions are (premeditatedly) not met. With defamation, there is no conditional transfer of ownership.

[Capitalism Forever]

With defamation, there is no conditional transfer of ownership.

But there are decisions made based on the defamer's statement, and these decisions adversely affect the life of the defamee, even though the metaphysically given facts do not warrant such an adverse effect. The defamer injects an element of unreason into the relationship between the defamee and his associates.

[DavidOdden]

But there are decisions made based on the defamer's statement, and these decisions adversely affect the life of the defamee, even though the metaphysically given facts do not warrant such an adverse effect. The defamer injects an element of unreason into the relationship between the defamee and his associates.

The question is, should legal force be prevent any injection of unreason in human interactions (i.e. should trolls here not just be banned, but arrested); and why does it matter (or does it matter) that the defamee's life is adversely affected, as opposed to the third party's life? One view of the proper function of government is that it is supposed to protect people from the use of force, and not from "any lapse of reason". The question of the proper function of government is indeed the root of this problem.

[Capitalism Forever]

The question is, should legal force be prevent any injection of unreason in human interactions (i.e. should trolls here not just be banned, but arrested)

Defamation is a civil matter, not a criminal one, so the question is not "should they be arrested?" but "can we sue them for damages?" And yes, since the trolls are using David's property in a way David doesn't want them to, he could sue them for damages (although it probably wouldn't be the best investment of his time).

and why does it matter (or does it matter) that the defamee's life is adversely affected, as opposed to the third party's life?

The third party can also sue, since he has been given false information on which he acted and suffered losses as a result--in this case, it is actually fraud we are talking about. But the defamee is a victim too.

One view of the proper function of government is that it is supposed to protect people from the use of force, and not from "any lapse of reason".

But defamation is not just a lapse of reason; it is an intentional misrepresentation of facts.

[DavidOdden]

Defamation is a civil matter, not a criminal one, so the question is not "should they be arrested?" but "can we sue them for damages?"

Alright, but I'm still trying to understand your foundation for saying that untruthfulness (of some stripe) should be subject to legal restrictions. In fact defamation can be either a civil or criminal matter (it was only relatively recently that criminal defamation was "outlawed" in the US), so the question isn't about prior restraint vs. post hoc reparations.

And yes, since the trolls are using David's property in a way David doesn't want them to, he could sue them for damages (although it probably wouldn't be the best investment of his time).

I'm skeptical about that; to pick a concrete example, (former) member 1517 misrepresented reality and thus injected massive unreason in the discussion, but did not engage in any suable-for action. This presupposes that the banned party does not try to hack into the system -- we presumably agree that that is a crime.

The third party can also sue, since he has been given false information on which he acted and suffered losses as a result--in this case, it is actually fraud we are talking about. But the defamee is a victim too.

Wait, I think this is getting out of control. The third party has no standing to sue. You don't have an unlimited right to sue anyone who somehow causes you damage, knowingly or otherwise. There is no fraud in the false praise case. Remember that lying is not the same as fraud. I'm going to ask you this very directly: do you claim that in a proper legal system, anyone who suffers a loss because of the actions of another person should be able to sue to recover damages? You can argue, if you want, that we need a new concept other than fraud to cover the legal aspects of dishonest dealings, but the existing concept fraud in the legal context does not cover general dishonesty.

Now regardless of the fact that defamation is more than a lapse of reason, your previous argument suggested that there was some relevance to the fact that "the defamer injects an element of unreason" into the interaction. If that statement was irrelevant, then I can ignore it; if, on the other hand, you think that injecting an element of unreason into human interactions is sufficiently foul that it should be sanctioned with legal government force, there are some significant bad consequences of that position. So I want to make sure whether you are or are not actually making that claim. If you are not making that claim, then I cannot relate your "element of unreason" statement to an argument that defamation should be subject to legal penalties.

[IAmMetaphysical]

Since you have picked up the discussion with CF I will bow out because all the points you raised in your last comment twoard me are answered by CF in his discussion with you about fraud. Fraud is not a violation of rights because there was a transfer of goods. Goods are only one way in which the rights of a man to his life is manifested. The right to life for man is the right to act upon his own judgement, judgement of the facts of reality. If I tell you an uncredible lie you can accurately judge that as a lie, but if I succeed in misleading you and cause you to act against reality, I have prevented you from the free excercise of your rational judgement, the excercis of which is your action.

But like I said I will bow out as I see that CF is making valid enough points(he even echoed me with the whole "injects" thing)

[Spano]

Meta and CF need to either demonstrate that "injecting" unreason into a relationship constitutes force, and is therefore a potential rights violation, or that contrary to Objectivism, rights can be violated without the use of force. At this point, we are still using "inject" in a vague way with connotations of force -- yet it is not.

Fraud is force because the defrauder physically obtains the property of the defrauded against his will. If a con artist car salesman writes a contract that guarantees the car he's selling you gets 1000 miles/gal, there can be no rights violation until you actually give him the money for the car, and he refuses to return your money once the lie is discovered. There is no fraud in his simply convincing you of that fact, BEFORE you transfer property. Nobody's rights have been violated when you say, "Gee, that's awesome...I've never heard of a car like that before." At that point, unreason is "injected" into your mind by your lack of critical thinking. But if you nevertheless decide not to make the purchase, no fraud has occurred.

Now, in the case of defamation (or false praise, in this case), a third party convinces you – falsely – that the car salesman is a good, honest fellow. You believe him. Where is the force, where is the violation of rights?

[IAmMetaphysical]

You're concentrating on this whole "inject" thing a bit too much. You have a flawed, but close, understanding of what force is. I am bowing out of the discussion, so I hope CF will pick it up. I will only say this: Force and mind are opposites.

[Spano]

Sorry to hear that. I agree that force and mind are opposites. I just don't understand how my idea of force is flawed. Before you bow out, could you explain?

[Capitalism Forever]

I'm skeptical about that; to pick a concrete example, (former) member 1517 misrepresented reality and thus injected massive unreason in the discussion, but did not engage in any suable-for action.

I am not familiar with what exactly 1517 posted. Was he engaging in defamation, or was he simply saying stupid (irrational) things?

I'm going to ask you this very directly: do you claim that in a proper legal system, anyone who suffers a loss because of the actions of another person should be able to sue to recover damages?

Of course not. You cannot sue your competitors just because they make a better product than yours. Damage is not the basis for individual rights. Let me quote for a post I made on the other thread:

The ability to live successfully (i.e. to live qua man) is the true standard for rights. Rights are not there to allow a life without "harm" as some posters have seemed to believe (although they often do protect you from harm), nor to let you indulge in arbitrary whims as long as you don't "hurt" others (even though they often do accomplish that). Rights are there to protect rational people (those who want to live successfully, to live qua man) from the irrationality of those who choose not to pursue a successful life.

Rights are in essence a rational man's way of saying: "Don't stand in my way!"

And therefore, force is when you "stand in the way" of a person who is pursuing a goal worthy of a rational man[.]

Imagine an Olympic runner whose goal is to get to the end of the track as fast as possible. What would another runner who respected his rights look like? He would be one who ran parallel to him, pursuing the same goal. What would a competitor who violated the runner's rights look like? He would be one who tried to prevent the runner from achieving his goal, e.g. by trying to make him stumble, by putting obstacles in his path--or by telling him as a fact that the race has been called off when it's actually still on.

This kind of action is the "element of unreason" I'm talking about.

Rational men will try to achieve things on their own ("run on parallel tracks"), so there will be no conflicts of interest among them. What individual rights protect is the ability to achieve things on your own even if you live in a society. A violation of individual rights consists of trying to prevent such achievements ("standing in his way").

Now, it is possible to be irrational without engaging in such a violation; in my analogy, this would correspond to a runner who just sits down on the track and does nothing (or runs backwards, or crawls on all fours, or whatever other form of failure he fancies). As long as he keeps his irrationality to himself and doesn't inject it into the race of the others, he is within his rights (and enjoys the protection of the law just like the rational runners do).

Does this address your questions? Although it's not a direct answer, I found it best to state my foundation for rights in general, as it's the most straightforward way to both clarify my position and explain how you arrive at it.

[hunterrose]

There have been some previous discussions of this matter (here, here, here)

*makes note to read these threads*

The crucial elements [of defamation]are “false”, “accusation” and “damage”

Should the extent of the damage matter? Defamation can cause some rather lethal damages e.g. defaming a drowning man may cause bystanders to refuse to save him.

One line of thinking on the matter is that defamation is a kind of fraud. However, a fraud analysis is wrong. Fraud is securing an exchange with a second party [through false information]... In the case of defamation, I may have no direct dealing with the defamee or the third party, so I have not necessarily secured a material gain with false information.

“False praise” is just the flip side of the same coin that defamation is stamped on.

Interesting

Is the basis of illegality (of fraud/defamation) in gaining a value through deceit or in losing of a value through deceit?

If losing a value through deceit is itself a basis for illegality, then defamation could also be illegal.

But if gaining a value through deceit is sufficiently illegal, suppose I lie about the qualities of a car I'm attempting to persuade (or dissaude) an acquaintance to pay for. It matters (in terms of legality) who receieves the payments?

What if the cash is sent to a nonexistent entity and address? In this case I wouldn't receive any actual material value, but it seems quite fraudulent to me.

[DavidOdden]

Should the extent of the damage matter?

Yes (and it does): this is part of the concept "damages", namely it is a claim that you should be compensated in a manner that is related to the damage done to you.

Is the basis of illegality (of fraud/defamation) in gaining a value through deceit or in losing of a value through deceit?

The basis is different in the two cases. The illegality of defamation arose from the need of the sovereign to be above all criticism, and has morphed into a right of ordinary citizens to be above criticism. The "truth" defense was a later American invention, so it didn't have anything to do with falseness. Fraud, OTOH, always (for millenia) has been about false claims.

The moral foundation for laws against fraud is that person A obtains property B from person C under condition D, and does not satisfy condition D. Therefore, A does not rightfully own B. Fraud is distinguished from ordinary breech in the deception aspect. What is important is the failure to satisfy D. With defamation, there is no transfer of property under condition D.

What if the cash is sent to a nonexistent entity and address? In this case I wouldn't receive any actual material value, but it seems quite fraudulent to me.

Cleaning that up a bit, suppose you were to take out an add promising to ship a radio to people who send a $20.00 check, giving a nonexistent address and name. Or, suppose you gave the home mailing address of Antonin Scalia (who, we assume, is not in cahoots with you on this scam). Then since there clearly isn't an attempt on your part to obtain the victim's property, I dunno. It's a form of vandalism, I suppose, but I don't know if it would constitute fraud as understood under the law.

[DavidV]

To stress the points that David made, the key issues to me are that (a.) reputation is not property and (b.) the third party is not coerced into believing the lies. Furthermore, if we uphold a “right to reputation,” the distinction of monetarily quantifiable damage itself is arbitrary, and “damage” can be defined very broadly. All lies are damaging to somebody, so how do we derive objective laws?

If I lie and say “painter Joe did not do the work I paid him to”, that’s defamation, but what about “Joe is lazy” or “Joe is a mean bastard.” What if I say “Cindy cheated on me.” Can Cindy sue me for psychological damage because her boyfriend broke up with her? A suit like that might get thrown out of court, but it still gives powerful lobbies a power of censorship. (For example, the food industry lobbied and got special laws that lower the standards necessary to prove libel about food products.)

I wonder if defamation can be better resolved on a property rights basis. If you defame a competitor to gain a business advantage, or sell lies for publication, that is ground for fraud. The only thing you would not have grounds for is defamation motivated solely by malice, and that does not seem like an insurmountable social problem.

BTW, a woman was fined $11.3 million today for lying on an online forum.

[Franklin]

Defamation does not entail the use of force. Presenting false information to a third party that prevents a person from obtaining a value from that party is not the same thing as actively employing force. For this reason, no criminal penalty is appropriate. Indeed, crime properly understood requires mens rea, i.e. intention to commit the act, and the application of force. Defamation is clearly lacking the second.

However, there is another side to the story. While defamation should not be considered a crime, it does do unjust damage to another's interest. For this reason, it is valid for the defamed person to seek redress in a civil suit. Such suits, however, are not intended to punish an action but rather to correct the harm done by that action: This is a very different thing.

I hate to mention it again, but to punish people for acts of speech is a dangerous bit of bussiness indeed; it is virtually begging the government to abuse its authority. This is obviously bad.