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Mnrchst

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Why do I owe it to everyone else to not attempt to damage someone's reputation by spreading what I believe to be falsehoods (at least when it's "successful enough")?

I think of my reputation as a form of property (Grames brought this up before). Falsehoods of this nature that do damage to such property violates my rights. Why isn't this satisfactory?

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I think of my reputation as a form of property (Grames brought this up before). Falsehoods of this nature that do damage to such property violates my rights. Why isn't this satisfactory?

First, s/he hasn't made much of a case for why reputation counts.

Second, it implies that someone is violating my property if they damage my reputation without their spreading what they believe to be falsehoods, but by just saying the truth about me. You could argue that I've already damaged my own property by doing whatever, but I haven't because I'm not telling people about this. The other people are ultimately responsible for their volitional actions.

If a few ex-girlfriends of Obama tell us he likes yogurt up his ass and a popsicle in his mouth, then they are the ones damaging his reputation by telling people, not Obama. Furthermore, their telling people and has no direct relationship to whether or not what they're saying is true: they could tell people either way.

So, apparently, it's a crime if you tell people this and "enough" people believe you unless it's actually true. But if no one ever told anyone about Obama's fetishes, then his reputation is fine. So how could it be Obama's fault if other people make their volitional actions to tell people about this. If reputation is property, then the implication is that you're damaging your own property because of the actions of others. It's true that the accusation would need to be true in order for this to not be a crime, but it's also true that people have to tell others about it, so there's no reason to pin it all on the person being accused. As far as I can tell, if reputation is property, then that would mean that it's a crime to damage someone's reputation for any reason.

Yes, it's true that if a bunch of people spread lies about some guy, then that guy will be worse off. However, if it's proven that these lies are lies, then the problem has already been solved. Those who spread the lies have gotten punished because their reputation will be damaged (basically for the rest of their lives, which is bad enough). As for the person who was accused, it's true that they lost their reputation for a while, but once it's restored, they're going to get paid back interest (so to speak) because of the wave of sympathy which will come. "Oh, you're that guy who got accused by 100 people of doing X and it's been proven that they were all just trying to screw up your life because they're jerks. Is there anything I can do for you?" It will then be up to the people who actually made the choice to stop trusting you whether or not they want to make up for it. And if they don't, then perhaps the accused will think less of them.

I'll add that this is all contingent on people being idiots. If I make an accusation and no one believes me, not much happens. If I make an accusation and a lot of people believe me, then apparently I've committed a crime. But in both cases, I've done the exact same thing, so apparently, my punishment is determined by other people's actions. This makes no sense to me.

If I believe lies, it's on me, not the liars. You can just look at the historical patterns when making a judgment (just like you can look at the historical pattern of determining if someone's reputation was indirectly damaged by the spreading of falsehoods) and determine how you want to make choices. If one kid accuses a teacher of molestation, you'd be an idiot to decide to not let your kid be taught by him/her because there's virtually no basis for the accusation being true (probably just as much as a simple demographic profile). If several kids say so, that's a different story.

Finally, I'll make a pithy point: someone no longer thinking highly of you isn't damaging you--they're withdrawing their valuing of you. You aren't tangibly harmed when your reputation goes down, you've simply lost something you like which wasn't yours to begin with--it always belonged to those who were giving it to you.

Edited by Mnrchst
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If you can't demonstrate what would have happened if X hadn't happened, then you can't say X is bad.

You're basically saying "Person A spreads falsehood about person B, and as a result, persons C and D stop buying stuff from person B, therefore, person A committed a crime against person B, but, if no one stopped buying from person B, then person A didn't commit a crime." The problem with this argument is that person A's actions did not damage person B, even in the sense that person B is less well off, because what actually made person B less well off were the actions of persons C and D. Persons C and D made a choice based off their available information (including person's A falsehoods). There is no objective crime by person A against person B--how can you demonstrate it? Persons C and D are ultimately responsible for the business effects on person B.

No, it is A who is ultimately responsible. If C and D (and dozens or thousands of others, it gets easier to demonstrate the larger the crowd) have a history of patronizing B, and then the only thing that changes is the new and false information provided by A after which C and D and others alter their decisions, then it is logical to identify the cause of the change as the new information. That is called the method of difference in induction. See Mill's methods. Using a geographic plot overlaying the coverage area of a newspaper or TV station with the distribution of the customers, it may even be possible to make a stronger case based on concomitant variation if there is a population of customers who didn't change their behavior because they never got the defamatory message.

Furthermore, if the crime is doing things that diminished person B's business, then I don't see why this couldn't include straight-up competition with person A.

That is not the crime. The crime is a lie that does damage. Those two elements together, not just the damage and not just a lie.

And you keep calling this a crime. It is not a crime, it is two private persons in conflict which is a tort. For crimes the prosecutor is the government.

As for your point on historical patterns, it doesn't matter--you have to demonstrate the damage. You can't demonstrate it if it's possible (however unlikely) that persons B and C would have believed the accusations of person A even if person A never actually made them--people can believe all sorts of things for any variety of reasons.

This is just the bad sort of philosophical skepticism, that nobody can ever know anything about causes. Persons B and C are highly unlikely to coincidentally make the same decisions at the same time, thus the inference that there must be a coordinating factor. When B and C are join by hundreds or thousands of others then the inference just gets stronger. Finding out A's influence and putting B and C on a witness stand to testify can make the conclusion that A was the cause into a certainty. On the contrary to your assertion, it is possible to demonstrate and has been demonstrated many times.

I never said it had to be explicit.

Anyway, where's the implicit contract between me and everyone else in society that I'm going to always tell them what I believe to be the truth? The examples you gave are obvious examples of implicit contract violation because they involve sales and/or threatening law and order (i.e. impersonating a cop). Why do I owe it to everyone else to not attempt to damage someone's reputation by spreading what I believe to be falsehoods (at least when it's "successful enough")?

The implicit contract between you and everyone else is that you will not violate their rights and they will not violate yours. When spreading lies results in objectively measurable damage that is a property right violation.

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First, s/he hasn't made much of a case for why reputation counts.

Second, it implies that someone is violating my property if they damage my reputation without their spreading what they believe to be falsehoods, but by just saying the truth about me.

Now you are just being obtuse (intentionally stupid). Truth has always been an absolute defense against defamation in the common law and is a defense today, and I have stated that multiple times in this thread.

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No, it is A who is ultimately responsible.

For C and D's actions? How so? C and D decided to change their behavior, not A.

This is just the bad sort of philosophical skepticism, that nobody can ever know anything about causes.

Anything? No, my point is only that you can't prove that a person would not have stopped patronizing X business if the falsehoods weren't circulated. But this doesn't really matter--even if you demonstrate that a person made a decision because of the falsehoods, that doesn't mean they aren't responsible for their actions. You didn't address most of my post where I make this viewpoint explicit.

The implicit contract between you and everyone else is that you will not violate their rights and they will not violate yours. When spreading lies results in objectively measurable damage that is a property right violation.

Again, it's not damage--it's the withdrawal of value. And you're not explaining why this is a rights violation, just that there are things called rights and we shouldn't violate them.

Now you are just being obtuse (intentionally stupid). Truth has always been an absolute defense against defamation in the common law and is a defense today, and I have stated that multiple times in this thread.

You wanna talk about obtuse? You have repeatedly said "But this is the law today" like that somehow makes it a good law, and I've stated THAT multiple times in this thread.

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For C and D's actions? How so? C and D decided to change their behavior, not A.

There is a sequences of actions, first one thing happens, then another. The first action by the first actor in the sequence is said to be the ultimate cause.

Anything? No, my point is only that you can't prove that a person would not have stopped patronizing X business if the falsehoods weren't circulated.

Your point is without merit, it is not necessary to prove a negative.

But this doesn't really matter--even if you demonstrate that a person made a decision because of the falsehoods, that doesn't mean they aren't responsible for their actions. You didn't address most of my post where I make this viewpoint explicit.

I did address this. They (C and D of your example) are responsible but legally within their rights and legally immune from action. A however has diminished the value of B's reputation, which is a property right violation.

Again, it's not damage--it's the withdrawal of value.

Provably caused by A.

You wanna talk about obtuse? You have repeatedly said "But this is the law today" like that somehow makes it a good law, and I've stated THAT multiple times in this thread.

It is good law, it has been for a long time. It has good results in practice and does not lead to legal contradictions or paradoxes. In other words, there is proof by experiment that this works even if you can't wrap your head around why it works yet.

Reputation is property, created in the same way other claims to property are made. I have not made that argument, and have decided not to spoon feed it to you but rather gave you a link to a competent recitation of the argument by a law professor. I suspect you haven't bothered to read it yet which would explain your persistent mystification.

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There is a sequences of actions, first one thing happens, then another. The first action by the first actor in the sequence is said to be the ultimate cause.

Wouldn't this mean that none of us can be held accountable for our behavior?

Your point is without merit, it is not necessary to prove a negative.

"Prove a negative" means "prove X doesn't exist" which basically means "Prove unicorns don't exist." That's not what I'm talking about. My point is that you're saying "We know person B did so-and-so because person A did AND we know that it would not have happened if person A didn't do so-and-so." You can't prove that. You, in fact, are the one trying to prove a negative: that something wouldn't have happened were circumstances different.

I did address this. They (C and D of your example) are responsible but legally within their rights and legally immune from action. A however has diminished the value of B's reputation, which is a property right violation.

Why?

Provably caused by A.

No it isn't--how do you actually prove this? Furthermore, C and D are ultimately responsible for their actions. If you don't believe this, then there are no property rights ("you're only successful because you got a good upbringing") or crimes ("We can't punish him because he was abused as a child").

It is good law, it has been for a long time. It has good results in practice and does not lead to legal contradictions or paradoxes. In other words, there is proof by experiment that this works even if you can't wrap your head around why it works yet.

You're not providing a moral context for this. Someone could just as easily say slavery is good because it has "worked" and not led to legal contradictions. Just because it "works well" doesn't mean that it's moral. What do you even mean when you say it "works"?

And I know why it works--people fear punishment. That doesn't mean we want to make this illegal. If alcohol were illegal, then would probably make killings caused by drunk drivers go down, but that doesn't mean it's a good law. Are you arguing straight consequentialism?

Reputation is property, created in the same way other claims to property are made. I have not made that argument, and have decided not to spoon feed it to you but rather gave you a link to a competent recitation of the argument by a law professor. I suspect you haven't bothered to read it yet which would explain your persistent mystification.

I read these links (http://www.enotes.com/everyday-law-encyclopedia/libel-and-slander http://digitalcommons.law.yale.edu/fss_papers/217/ ) and it doesn't explain the position; it's merely an overview of how the law works and makes a couple assertions without clear justification.

And I can just as easily surmise you haven't read the link because you're not bothering to justify it. Just make your arguments.

Again, all I found that justifies these laws (and you haven't challenged my claiming this yet, so I don't know whether you think that's true or not) is " If the dentist did not have a disease and lost business due to the defamatory reports then the cause can only be those people who spread the false reports, and the dentist should win the suit. "

And, again, this has a few problems. 1- you can't prove this and 2- even if it's true, the people who react are the ones responsible for their choices. We don't let murders off scott free because their parents were abusive, nor do we deny property to those who succeed because they had a lot of motivational people in their life.

And, again, since we're talking about the withdrawal of value and not the inflicting of harm (you appear to have just conceded this point in your previous post), then we're not talking about damage at all--just the withdrawal of valuing. So even IF you reconcile the two problem I covered in the previous paragraph, this still means that there's no damage. As far as I can tell, in order to be consistent, you'd have to include someone starting a business which leads to the withdrawal of valuing of another's business.

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A couple of questions...

For Mnrchst: Suppose I tell someone that a glass of water is safe to drink, when it is not -- I know it is poisoned. And he drinks it and dies. Is this murder on my part? Or is this man responsible for his own death in that he decided to trust me and act on that information? Granted that I've done nothing here except for "speak"; does it follow that this is nothing but a question of "free speech"?

For Grames: What is reputation? Isn't it an aggregate of the evaluations of others? And where does an "evaluation" reside? To wit, your reputation exists (in part) as my evaluation of you. If you "own" your reputation, does that mean that you somehow "own" my evaluation of you? If so, how? What would that kind of ownership entail?

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For Grames: What is reputation? Isn't it an aggregate of the evaluations of others?

No, it is not the aggregate evaluations of others.

THREE CONCEPTS OF REPUTATION

A. Reputation as Property

The concept of reputation that is most easily available to contemporary

observers is that of reputation in the marketplace. This concept of

reputation can be understood as a form of intangible property akin to

goodwill.'" It is this concept of reputation that underlies our image of

the merchant who works hard to become known as creditworthy or of

the carpenter who strives to achieve a name for quality workmanship.

Such a reputation is capable of being earned, in the sense that it can be

acquired as a result of an individual's efforts and labor. Thomas Starkie

well described this concept of reputation over a hundred and fifty years

ago:

Reputation itself, considered as the object of injury, owes its being and

importance chiefly to the various artificial relations which are created as

society advances.

The numerous gradations of rank and authority, the honours and

distinctions extended to the exertion of talent in the learned professions,

the emoluments acquired by mechanical skill and ingenuity, under the

numerous subdivisions of labour, the increase of commerce, and particularly

the substitution of symbols for property in commercial intercourse-

all, in different degrees, connect themselves with credit and

character, affixing to them a value, not merely ideal, but capable of pecuniary

admeasurement, and consequently recommending them as the

proper objects of legal protection. 14

For Starkie the reputation protected by defamation law is something

that a person can earn through "the exertion of talent" or the exercise of

"mechanical skill and ingenuity." To injure such a reputation without

justification is to unjustly destroy the results of an individual's labor.

The resulting loss is "capable of pecuniary admeasurement" because the

value of reputation is determined by the marketplace in exactly the same

manner that the marketplace determines the cash value of any property

loss.15

The concept of reputation as property explains why defamation law

proscribes aspersions on an individual's character even in contexts that

are not narrowly oriented toward business relationships. This is because

character can be viewed-and at the time Starkie was writing was in fact

viewed-as "the fruit of personal exertion."'6 On this account character

"is not inherited from parents; it is not created by external advantages; it

is no necessary appendage of birth, or wealth, or talents, or station; but

the result of one's own endeavors,-the fruit and reward of good principles,

manifested in a course of virtuous and honorable action." 7 Such

character is understood to be a form of "capital" since it "creates funds"

and the potential for "patronage and support."'" The reputation for

good character, as distinct from the possession of the character itself, can

also be understood as the result of individual exertion. From this perspective

defamation law safeguards "that repute which is slowly built up

by integrity, honorable conduct, and right living. One's good name is...

as truly the product of one's efforts as any physical possession." 19 The

potential financial importance of a reputation for good character was

stressed by Max Weber, who in his travels in the United States observed

that qualifying for "admission" to certain voluntary religious sects was

"recognized as an absolute guarantee of the moral qualities of a gentleman,"

a guarantee that immediately translated into "credit worthiness."20

Benjamin Franklin even went so far as to define "character in

terms of the amount of 'credit' a community would extend to a person,

based on an estimate of his 'good repute,' his 'affluence,' and his 'felicity.'

"21 Unjustified aspersions on character can thus deprive individuals

of the results of their labors of self-creation, and the ensuing injury can

be monetarily assessed.

The concept of reputation as property presupposes that individuals

are connected to each other through the institution of the market. The

market provides the mechanism by which the value of property is determined.

The purpose of the law of defamation is to protect individuals

within the market by ensuring that their reputation is not wrongfully

deprived of its proper market value. Defamation law should therefore

not be concerned with purely private injuries which are independent of

the market. Although individuals may attach importance to the way

others regard them, a decline in this regard resulting merely in hurt feelings

should not be the subject of redress. Thus Starkie notes that defamation

law exists to compensate "temporal" losses, not "spiritual

grievances, which cannot be estimated in money... [A]nd so, a mere

injury to the feelings without actual deterioration of person or property,

cannot form an independent and substantive ground of proceeding. '22

Underlying the concept of reputation as property is an implicit

image of a form of society that I shall call a "market society." Three

distinctive features of this image should be emphasized. First, because

the concept views a person as capable of creating his reputation,23 it presupposes

that no matter what society's present estimation of an individ-

ual, he in theory always retains the capacity to work toward the

production of a new reputation. In this sense individuals in a market

society are understood to possess personal identities that are distinct

from and anterior to their social identities.24 Individuals are not constituted

by the social regard with which they are apprehended by others.

Second, because the concept of reputation as property requires defamation

law to protect only those aspects of an individual's reputation

that the market can measure, the concept assumes that the worth of a

person's reputation will vary with market conditions. Reputation is thus

not an absolute, a matter of either honor or dishonor. It is instead envisioned

as a smooth and continuous curve of potential value. The legally

protected interest in reputation will rise or fall depending upon an individual's

productivity and upon fluctuations in market conditions.

Third, the concept of reputation as property presupposes that all

persons are equal, in the sense of "the equal subordination of every individual

to the laws of the market."25 No person has the right to a reputation

other than that created by the evaluative processes of the market,

and, conversely, every person enjoys an equal right to enter the market to

attempt to achieve what reputation he can.

The concept of reputation as property, together with the image of

the market society that it carries within it, can create a powerful and

internally coherent account of defamation law. It can explain why the

law protects reputation, and what kinds of social evaluation deserve the

law's protection. There are aspects of modern defamation law that can

be understood only by reference to the concept of reputation as property,

as, for example, the fact that corporations and other inanimate entities

can sue for defamation. 26 The concept of reputation as property is so

deeply imbedded in our understanding of defamation law that a prominent

nineteenth century writer could conclude that in defamation law

"the protection is to the property, and not to the reputation ...

[P]ecuniary loss to the plaintiff is the gist of the action for slander or

libel."27 And in the twentieth century no less a commentator than David

Riesman could observe that where, as in the United States, "tradition is

capitalistic rather than feudalistic, reputation is only an asset, 'good will',

not an attribute to be sought after for its intrinsic value."28

The facts of a man's life, his personal history and track record in dealing with others are the basis for forming a judgement upon his character. It is those facts that are attacked by defamatory lies, not the opinions of others directly. The damage to reputation is merely the visible final culmination of the defamer's act, the manifestation of the actual harm done and for which the whole process is named. Truth is always a defense because judgement of a man's character ought to be based on the truth, and telling the truth does not deprive a man of his actual past and the full consequences of that past.

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No, it is not the aggregate evaluations of others.

Hmmm... I'm not saying that you're wrong about that. However, I don't think you've adequately made that case in your reply, and I'm not yet convinced it isn't true.

It certainly seems to me that reputation is an aggregate of the evaluations of others. For instance, let's examine this, from the quoted material you've provided:

In this sense individuals in a market society are understood to possess personal identities that are distinct from and anterior to their social identities. Individuals are not constituted by the social regard with which they are apprehended by others.

Okay. So this develops a notion that a person has "two identities" -- one "personal" and one "social." A "personal identity" is "not constituted by [their] social regard." I infer then that the second type of identity -- "social identity" -- *is* thus constituted. That is, reputation is one's "social regard."

Directly preceding the above quote, we have:

First, because the concept views a person as capable of creating his reputation, it presupposes that no matter what society's present estimation of an individual, he in theory always retains the capacity to work toward the production of a new reputation.

Here we have an equation of a reputation to "society's present estimation of an individual." Who is "society"? And what does it mean for society to have an "estimation of an individual"?

In short, doesn't the quoted material you've provided explicitly support the idea that reputation is an aggregate of the evaluations of others?

The facts of a man's life, his personal history and track record in dealing with others are the basis for forming a judgement upon his character.

I'm not certain that I can agree that we all share one process by which we judge another person's character, or that it always proceeds fairly or rationally. But relevant to my earlier question as to the nature of reputation, I don't see how this disagrees.

I've asked whether reputation was an aggregate of the evaluations of others, and you're here saying that we're discussing the basis for "judgement [of a man's] character." Isn't that an evaluation?

It is those facts that are attacked by defamatory lies, not the opinions of others directly. The damage to reputation is merely the visible final culmination of the defamer's act, the manifestation of the actual harm done and for which the whole process is named.

The "facts" are attacked...? If I were to claim that the Earth is flat, do you mean that I would somehow be "harming" the fact of the Earth being round? I apologize, but this just doesn't seem to make any sense to me. I do not believe that a person can "attack a fact."

I also disagree that peoples' subsequent opinions are somehow derivative to this matter; that the damage is done "to the fact," which is only made apparent in shifting public opinion. Were we considering a case where "facts had come under direct assault," but nobodies opinion had demonstrably changed (with regard to monetary "damage"), I'm sure you'd agree that the case had no merit.

Truth is always a defense because judgement of a man's character ought to be based on the truth, and telling the truth does not deprive a man of his actual past and the full consequences of that past.

I'm not sure that any force outside of speculative fiction can deprive a man of his actual past... But I agree with you that we seek to form proper judgments of others, based on truth.

How this disagrees that reputation is an aggregate of the opinions of others, however, I continue to be unsure. And more to the point, I'm not sure that we're discussing an actual species of property in "reputation."

I had this difficulty, too, in a discussion of intellectual property, as such, and never felt that the question was satisfactorily answered. Perhaps the difficulty is my own. From the Ayn Rand Lexicon, and on the subject of "property rights," Ayn Rand said the following (from "Man's Rights," emphasis added):

It is the right to gain, to keep, to use and to dispose of material values.

Also, from "The Property Status of the Airwaves," emphasis added:

Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property—by the right of those who apply the knowledge and effort.

I do not mean to therefore contend that there cannot be any immaterial form of property... but I do believe that I'll need to see the case developed more fully first. So far, claims to immaterial property seem to me to be claims to the (otherwise) private actions of others... and in the case of reputation, to their thoughts as well. I think it is a claim that you "own" my evaluation of you.

***

Incidentally, on the matter of "reputation," I also looked up that term in the Lexicon, with one result. This is certainly not a definitive assessment, but I found it at least interesting (from "The Establishing of an Establishment," emphasis added):

How would Washington bureaucrats—or Congressmen, for that matter—know which scientist to encourage, particularly in so controversial a field as social science? The safest method is to choose men who have achieved some sort of reputation. Whether their reputation is deserved or not, whether their achievements are valid or not, whether they rose by merit, pull, publicity or accident, are questions which the awarders do not and cannot consider. When personal judgment is inoperative (or forbidden), men’s first concern is not how to choose, but how to justify their choice. This will necessarily prompt committee members, bureaucrats and politicians to gravitate toward “prestigious names.” The result is to help establish those already established—i.e., to entrench the status quo.

It would be foolish to try to weasel out a "position" re: reputation from this, but I will say that it doesn't sound as though reputation is being treated as a piece of personal property, necessarily formed from correct judgments of the facts of a person's life, and thereby possessing a determinable and objective market value.

Actually, it sounds a little skeptical about this "reputation" business... doesn't it?

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For Mnrchst: Suppose I tell someone that a glass of water is safe to drink, when it is not -- I know it is poisoned. And he drinks it and dies. Is this murder on my part?

No. I think it's manslaughter. You didn't murder the person because they drank the water, but you endangered their life by telling them something that is false (I think this is basically analogous to fraud or a death threat).

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So far, claims to immaterial property seem to me to be claims to the (otherwise) private actions of others... and in the case of reputation, to their thoughts as well.

It's not, because all property is fundamentally intellectual--someone's doing some thinking to make a product even in a sweat shop. I will add, however, that this doesn't necessarily mean that every intellectual product must count as property.

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No. I think it's manslaughter. You didn't murder the person because they drank the water, but you endangered their life by telling them something that is false (I think this is basically analogous to fraud or a death threat).

I disagree wholeheartedly.

I believe we're losing sight of the nature of the action -- which is intentionally taking someone's life with malice and all that, i.e. murder -- on the basis of the means by which it's committed. If I cut brakes on a car and then sell it to you, intending that you will die, and that happens... it isn't simply "fraud" because I didn't tell you about the "faulty" brakes -- I'm not less at fault because you decided to make the purchase. I have taken purposeful action to kill you. And sometimes speech has the character of "action."

It's not, because all property is fundamentally intellectual--someone's doing some thinking to make a product even in a sweat shop. I will add, however, that this doesn't necessarily mean that every intellectual product must count as property.

I'm not sure about the source of your disagreement here. I wouldn't deny that "someone's doing some thinking" in a sweatshop... I don't think I have a problem with "sweatshops" generally, actually... But if we're talking about Nike or whatever (assuming that I'm not running the risk of libel with such a suggestion ;)), I'd still say that the sweatshop's "product" is shoes.

Perhaps you can clarify the source of our apparent disagreement?

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Okay. So this develops a notion that a person has "two identities" -- one "personal" and one "social." A "personal identity" is "not constituted by [their] social regard." I infer then that the second type of identity -- "social identity" -- *is* thus constituted. That is, reputation is one's "social regard."

The social identity is derived from the personal identity, the relationship is as effect from cause.

I'm not certain that I can agree that we all share one process by which we judge another person's character, or that it always proceeds fairly or rationally.

Certainly it is true that all do not share the same process of judging others' character. As in so many other areas of the law where some normative standard for what ought to have happened is required, the law adopts the "reasonable person" model for anticipating what kinds of conclusions ought to proceed from the facts at hand. In the context of defamation law, it is in the mind of the reasonable person where the "social identity" exists.

It is important to have a "reasonable person" standard. An unreasonable person can take a single sentence out of context, or have idiosyncratic meanings for words, or simply err and misunderstand what was written or said. The law cannot hold a writer or speaker responsible for all of the possible unjustified conclusions that can be constructed or invented from a given communication. There is no limit to the number of non sequitors that can be formed from a given set of premises, and because none of them are logically necessary none of them can be said to be caused by the premises in the way a formally valid conclusion is. Without a reasonable person standard, everyone would be at fault for everything.

I've asked whether reputation was an aggregate of the evaluations of others, and you're here saying that we're discussing the basis for "judgement [of a man's] character." Isn't that an evaluation?

No, the basis for an evaluation is distinct from the evaluation itself. The premises are not the conclusion.

The "facts" are attacked...? If I were to claim that the Earth is flat, do you mean that I would somehow be "harming" the fact of the Earth being round? I apologize, but this just doesn't seem to make any sense to me. I do not believe that a person can "attack a fact."

Your example is not pertinent as it is completely impersonal, the Earth is an inanimate object. All matters of law and right presuppose a social context.

A lie always makes the person lied to a victim, but when the lie is about another person there are two victims. Defamation law protects the person lied about, and other laws against fraud protect the person lied to. In both cases the function of a lie is to create a false reality made of false facts and to let the minds of those lied to reach the predictable conclusions on their own. The minds involved cannot be directly controlled, they are manipulated through the facts they accept. "Attack on the facts" is a good description of how a lie works in its direct action, even though the indirect ultimate object of a lie is to "attack a mind".

(I am drawing a blank right now, but it ought to be possible to come up with a case where all three perspectives of the law are at play. There ought to be a hypothetical case where the person defamed has standing to sue, a person who believed the defamation suffered harm and so has standing to sue and criminal fraud law applies so the state has grounds to make an arrest.)

Were we considering a case where "facts had come under direct assault," but nobodies opinion had demonstrably changed (with regard to monetary "damage"), I'm sure you'd agree that the case had no merit.

Yes, multiple elements are necessary to complete the proof of the case, and objective damage is one of them.

I do not mean to therefore contend that there cannot be any immaterial form of property... but I do believe that I'll need to see the case developed more fully first. So far, claims to immaterial property seem to me to be claims to the (otherwise) private actions of others... and in the case of reputation, to their thoughts as well. I think it is a claim that you "own" my evaluation of you.

It shows a misunderstanding of the issue to use the concept "immaterial property". There is no such thing, the forms of property involved in actionable reputation damage and trespasses of intellectual property are always entirely material.

***

Incidentally, on the matter of "reputation," I also looked up that term in the Lexicon, with one result. This is certainly not a definitive assessment, but I found it at least interesting (from "The Establishing of an Establishment," emphasis added):

. . .

It would be foolish to try to weasel out a "position" re: reputation from this, but I will say that it doesn't sound as though reputation is being treated as a piece of personal property, necessarily formed from correct judgments of the facts of a person's life, and thereby possessing a determinable and objective market value.

Actually, it sounds a little skeptical about this "reputation" business... doesn't it?

In The Letters of Ayn Rand there is a letter to her lawyer in which in she is planning legal action about the Italian production of We The Living. This was in 1946, long before she saw it or concluded that it was a well made movie actually subversive to the fascist government of Italy.

I have not consulted anyone about this as yet, and do not quite know what such a case might involve and what I should do about it. It seems to me that I should sue not only for whatever royalties are due me, but also and primarily for the damage to my reputation as a writer, damage caused by the fact that a book of mine was produced as Fascist propaganda. We the Living is a story laid in Soviet Russia, and it is anti-Soviet but, above all, it is anti-dictatorship. Therefore, it is as much anti-Fascist as anti-Communist, and I resent, more than the financial piracy, the use of my material or the distortion of my message into a pro-Fascist picture.

Regardless of her position on reputation as property, she does not write about it at length or give a justification for it. It is up to us to use the principles we have to reason it out for ourselves.

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No. I think it's manslaughter. You didn't murder the person because they drank the water, but you endangered their life by telling them something that is false (I think this is basically analogous to fraud or a death threat).

Wrong answer. Even without the element of violence, this is still murder. The state of mind of the perpetrator is what matters to distinguish between murder and manslaughter. In murder the death of the victim is intended, in manslaughter the death of the victim is not intended. Violence is not required, and I don't know what else you might be using as a criteria to make the distinction.

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Wouldn't this mean that none of us can be held accountable for our behavior?

No it isn't--how do you actually prove this? Furthermore, C and D are ultimately responsible for their actions. If you don't believe this, then there are no property rights ("you're only successful because you got a good upbringing") or crimes ("We can't punish him because he was abused as a child").

I had a reply to this post earlier but the forum ate it. This is the philosophically important part of your post as a misunderstanding of free will is coloring your understanding of the law.

Here are some questions a young Ayn Rand was asking herself.

May 9, 1934

In regard to free will: Why is it used as an argument against freedom of the will that it is motivated by a circumstance of the outside world? Is there any such thing as will without the content to which it is applied? Isn't will a pure abstraction, not an object? Isn't it a verb rather than a noun, and as such meaningless without that upon which it acts? The will does not have to be without reason, or motivation, in order to be free. One's act may be motivated by an outside reason, but the choice of that reason is our free will. An example of the determinists: if a man drinks a glass of water, he does it because he is thirsty, therefore his will isn't free, it's motivated by his physical condition. But he drinks the glass of water because he needs it and decides that he wants to drink it. If his sweetheart's life had depended on his not drinking that water, he probably would not have touched it, no matter what his thirst. Or if it were a question of his life or hers, he would have to select and make the decision. In other words, he drinks because he's thirsty, but it is not the thirst that determines his action, the thirst only motivates it. A motivation is not a reason. ( Has that anything to do with the question of free will?)

Doesn't the "free will" question come under the general question of human reason—and its freedom? If an action is logical—does that mean it is not free? Or is logic considered a restriction? If so—upon what? Is there anything conceivable beyond logic? Does a free action necessarily mean an unreasonable one? And if mind (or reason) depends on the outside world for its contents—is it reason any the less?

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If I cut brakes on a car and then sell it to you, intending that you will die, and that happens... it isn't simply "fraud" because I didn't tell you about the "faulty" brakes -- I'm not less at fault because you decided to make the purchase. I have taken purposeful action to kill you.

Let me elaborate a little further: In the example you gave, I was provided no additional context.

Suppose some guy tells me he collects cars. He wants a car you own towed to his house. He says he'll never drive the car, and there are multiple cars he owns that apparently have never been driven by anyone after he gets them. If you sell him a car that doesn't have brakes (and you know it) and he drives it and dies as a result of the lack of brakes, then you're guilty of manslaughter. If this guy's about to drive this thing out of the lot, then that's murder.

If there's a guy who walks by and sees a glass of water and says "Is it OK to drink?" and you say "Yes" and it's actually poisoned (and you know it), and then he drinks it, then that's manslaughter. If he first says "May I drink that glass of water?" and you say "Yes", then that's murder regardless of whether or not he asks if it's OK to drink.

Basically, if you have reason to believe someone's going to endanger their life, that's one thing. But what we're talking about is "Don't go to see this doctor--he deliberately murders people". They might avoid getting a solution to a problem from that particular person, but you're not actually making whatever their problem is worse. You're giving them a reason to not address it with a particular person, but that doesn't necessarily mean they can't address it by going to someone else.

Whether you agree or disagree, do you understand my position?

Perhaps you can clarify the source of our apparent disagreement?

You said: "So far, claims to immaterial property seem to me to be claims to the (otherwise) private actions of others"

In other words, you're saying, "If you have property apply to immaterial things, then you're controlling another's material property, so doesn't that contradict that whole notion of property, that you control it because it's yours?"

So here's my more elaborate response: There's no contradiction because all property is fundamentally immaterial because it is fundamentally intellectual. The fact that you're controlling another's property with your property isn't a problem--if I own a big hunk of marble, I'm controlling your chisel insofar as I'm preventing it from chiseling my marble. I'm sure you understand this because you recognize that you can't interfere with the marble--by doing so you're interfering with my ability to profit from my productive efforts (which are fundamentally intellectual), which, in this case, is represented by the marble. If you're using an invention I invented (shortly after I invented it and without my permission) with your own physical materials, then you're interfering with my ability to profit from my productive efforts (which are also fundamentally intellectual), which, in this case, is me inventing something.

However, if immaterial property were held in perpetuity, then there are two terrible implications: one, that your invention is infinitely more valuable than any subsequent productive effort from using the invention, and two, that no one else would have ever invented the invention you invented if you hadn't invented it (because you get it forever). A 100 year patent therefore implies that no one else would have invented it for 100 years (unrealistic) and a 1 week patent therefore implies that someone else would have invented it 1 week later (unrealistic).

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The social identity is derived from the personal identity, the relationship is as effect from cause.

I don't really have any problems with a personal/social identity model, as such; I was only trying to demonstrate that I believe my earlier surmise -- that one's reputation is the aggregate of the evaluations of others -- is supported by what you'd quoted in response.

Come to it, I'm not sure it's quite so clean and straightforward as personal identity -> social identity; the particular society under discussion plays a vital role, in that it is responsible for doing the evaluating. Again, note the language in your source (emphasis added):

First, because the concept views a person as capable of creating his reputation, it presupposes that no matter what society's present estimation of an individual, he in theory always retains the capacity to work toward the production of a new reputation.

We're dealing directly with the estimations of "society," which is, with respect to any given individual, "other people."

Certainly it is true that all do not share the same process of judging others' character. As in so many other areas of the law where some normative standard for what ought to have happened is required, the law adopts the "reasonable person" model for anticipating what kinds of conclusions ought to proceed from the facts at hand. In the context of defamation law, it is in the mind of the reasonable person where the "social identity" exists.

I generally like a "reasonable person" standard, but I have to wonder slightly about its application here. Do we really assess a person's reputation according to what a "reasonable" man would make from the facts of a person's life? Or can a person have a legally defensible reputation which is out of sync with what a "reasonable person" would otherwise conclude?

Can't we, as reasonable people, conclude that someone does not generally deserve their reputation... yet also acknowledge that they do have that reputation?

It is important to have a "reasonable person" standard. An unreasonable person can take a single sentence out of context, or have idiosyncratic meanings for words, or simply err and misunderstand what was written or said. The law cannot hold a writer or speaker responsible for all of the possible unjustified conclusions that can be constructed or invented from a given communication. There is no limit to the number of non sequitors that can be formed from a given set of premises, and because none of them are logically necessary none of them can be said to be caused by the premises in the way a formally valid conclusion is. Without a reasonable person standard, everyone would be at fault for everything.

I agree with the substance of what you're saying, but I just don't quite understand the application. I believe that someone may have a reputation which is false in the sense that they are not the kind of person that they're reputed to be. Or that society, in general, may have concluded poorly with respect to a person's character.

When Merriam-Webster defines reputation as an "overall quality or character as seen or judged by people in general," I find that jibes with my understanding. But there's no requirement there that these people be "reasonable."

Perhaps you're right in that there is a different legal standard? I certainly don't know one way or another, except to defer to your say-so. But in my experience, and according to how I believe the term is typically used (and including the source that you quoted in response), "reputation" is something that exists in other peoples' minds. It is their evaluation of a person, for better or worse.

No, the basis for an evaluation is distinct from the evaluation itself. The premises are not the conclusion.

Fair enough.

Your example is not pertinent as it is completely impersonal, the Earth is an inanimate object. All matters of law and right presuppose a social context.

Well, okay. :) I'm just trying to make sense of the idea of "attacking facts." Don't think I'm there yet, but I'm not giving up on it.

A lie always makes the person lied to a victim, but when the lie is about another person there are two victims. Defamation law protects the person lied about, and other laws against fraud protect the person lied to. In both cases the function of a lie is to create a false reality made of false facts and to let the minds of those lied to reach the predictable conclusions on their own. The minds involved cannot be directly controlled, they are manipulated through the facts they accept. "Attack on the facts" is a good description of how a lie works in its direct action, even though the indirect ultimate object of a lie is to "attack a mind".

(I am drawing a blank right now, but it ought to be possible to come up with a case where all three perspectives of the law are at play. There ought to be a hypothetical case where the person defamed has standing to sue, a person who believed the defamation suffered harm and so has standing to sue and criminal fraud law applies so the state has grounds to make an arrest.)

I think this is compelling -- particularly the idea of "creating a false reality" -- though I remain unsure about "attacking facts." I find them fairly unassailable.

I do think that slander/libel/defamation is an attack on a person -- potentially on their livelihood -- and that such is fine grounds for a lawsuit. Does this mean that reputation is property? I don't know... the next quoted section just makes me feel hopelessly confused on the subject.

It shows a misunderstanding of the issue to use the concept "immaterial property". There is no such thing, the forms of property involved in actionable reputation damage and trespasses of intellectual property are always entirely material.

Well... okay, but if there is no such thing as "immaterial property," what then do you mean when you say that "reputation is property"? Certainly reputation is not, itself, material. Right? Even if damage to a person's reputation can often be measured in terms of physical property, or recompensed in same fashion, does this mean that reputation is physical property?

On a bit of a tangent, does it make any sense to speak of a person's reputation in a non-business sense? For instance, that a person might have a reputation as a friend or a lover, which might also suffer unfair assault? Would that be "material" in the same way? Property in the same way? Do you think that such should also be actionable in a court?

Regardless of [Rand's] position on reputation as property, she does not write about it at length or give a justification for it. It is up to us to use the principles we have to reason it out for ourselves.

Agreed absolutely.

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In both cases the function of a lie is to create a false reality made of false facts and to let the minds of those lied to reach the predictable conclusions on their own.

That's true. However, when I say "The car has brakes" then you're going to get killed if you drive it--that's tangible harm. If I say "This guy has done X Y and Z, so don't buy his stuff, talk to him etc." that's not actually harming someone. They might avoid getting a solution to a problem from that particular person, but you're not actually making whatever their problem is worse. You're giving them a reason to not address it with a particular person, but that doesn't necessarily mean they can't address it by going to someone else.

Edited by Mnrchst
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Having thought about this a bit, I've decided that I favor defamation as crime in a very limited way:

Let's say there's only one doctor in the world who can cure you of X problem, and I'm his assistant, and I tell you he'll kill you during the operation. That's definitely an attempt at murder because if you act on my information, you have no alternative except the disease harming you.

Edited by Mnrchst
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That's true. However, when I say "The car has brakes" then you're going to get killed if you drive it--that's tangible harm. If I say "This guy has done X Y and Z, so don't buy his stuff, talk to him etc." that's not actually harming someone. They might avoid getting a solution to a problem from that particular person, but you're not actually making whatever their problem is worse. You're giving them a reason to not address it with a particular person, but that doesn't necessarily mean they can't address it by going to someone else.

Right. Not every lie can be made illegal or into a cause for a civil lawsuit. There must also be damage, objective damage.

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I don't really have any problems with a personal/social identity model, as such; I was only trying to demonstrate that I believe my earlier surmise -- that one's reputation is the aggregate of the evaluations of others -- is supported by what you'd quoted in response.

Come to it, I'm not sure it's quite so clean and straightforward as personal identity -> social identity; the particular society under discussion plays a vital role, in that it is responsible for doing the evaluating. Again, note the language in your source (emphasis added):

We're dealing directly with the estimations of "society," which is, with respect to any given individual, "other people."

I generally like a "reasonable person" standard, but I have to wonder slightly about its application here. Do we really assess a person's reputation according to what a "reasonable" man would make from the facts of a person's life? Or can a person have a legally defensible reputation which is out of sync with what a "reasonable person" would otherwise conclude?

Can't we, as reasonable people, conclude that someone does not generally deserve their reputation... yet also acknowledge that they do have that reputation?

I agree with the substance of what you're saying, but I just don't quite understand the application. I believe that someone may have a reputation which is false in the sense that they are not the kind of person that they're reputed to be. Or that society, in general, may have concluded poorly with respect to a person's character.

Unreasonable people exist. A psychic (an unreasonable person) might have a reputation as a "good" psychic (whatever that might mean) among other unreasonable people. As both the reasonable and the unreasonable can often be found in the same person, some of the actions of the psychic can be protected while others not. For example, complaints about the accuracy of the psychic's visions or predictions cannot be taken up in court, but the facts of some accusation of financial impropriety can be.

When Merriam-Webster defines reputation as an "overall quality or character as seen or judged by people in general," I find that jibes with my understanding. But there's no requirement there that these people be "reasonable."

Perhaps you're right in that there is a different legal standard? I certainly don't know one way or another, except to defer to your say-so. But in my experience, and according to how I believe the term is typically used (and including the source that you quoted in response), "reputation" is something that exists in other peoples' minds. It is their evaluation of a person, for better or worse.

Merriam-Webster is not a law dictionary, it would be silly for it to give definitions only in terms of what the law recognizes. Law is a special science, a specific field with its special methods and conclusions just like mathematics and physics are their own domains. A common sense level of knowledge is not going to be adequate to explain the field.

Well, okay. :) I'm just trying to make sense of the idea of "attacking facts." Don't think I'm there yet, but I'm not giving up on it.

I think this is compelling -- particularly the idea of "creating a false reality" -- though I remain unsure about "attacking facts." I find them fairly unassailable.

I do think that slander/libel/defamation is an attack on a person -- potentially on their livelihood -- and that such is fine grounds for a lawsuit. Does this mean that reputation is property? I don't know... the next quoted section just makes me feel hopelessly confused on the subject.

Just as the middle term in a syllogism does not appear in the conclusion, the reasonable person standard is the middle term in the argument moving from a man's actions to the portion of his total reputation the law recognizes as legally defensible and as 'his'. There is not a syllogism here but rather a sequence of actions, and the middle actions are omitted in the conclusion.

A man acts and a reasonable person comes to know of those acts.

The man's acts known to the reasonable person are the basis for judging the man.

The judgement of the man is his reputation.

Thus a man's acts cause his reputation.

A defaming attack presents falsehoods as a man's actions and relies on the same implicit means (the reasonable person) in order to accomplish a change to the previous reputation. If the change to the reputation then leads to objectively demonstrable and measurable damage then the case can be made.

Well... okay, but if there is no such thing as "immaterial property," what then do you mean when you say that "reputation is property"? Certainly reputation is not, itself, material. Right? Even if damage to a person's reputation can often be measured in terms of physical property, or recompensed in same fashion, does this mean that reputation is physical property?

On a bit of a tangent, does it make any sense to speak of a person's reputation in a non-business sense? For instance, that a person might have a reputation as a friend or a lover, which might also suffer unfair assault? Would that be "material" in the same way? Property in the same way? Do you think that such should also be actionable in a court?

It makes sense to speak of a broader concept of reputation which includes things not objectively measurable in a courtroom. The legal sense in which a reputation is defensible is a subset of all the referents of the concept of reputation. Your reputation as a friend or lover can indeed suffer an unfair assault which is completely outside the scope of the civil law to address.

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Right. Not every lie can be made illegal or into a cause for a civil lawsuit. There must also be damage, objective damage.

I have a question rather related, not only to your post, but the discussion in general.

Can (or should) a politician ever be held legally accountable for the promises of his electoral campaign that never materialize once he wins the office?

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