restrictions on speech?

[DonAthos]

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.

I find the substance of most you've said in this thread to be reasonable, and yet I don't know if it speaks to the heart of my concerns. (Or perhaps I just don't understand it sufficiently as yet.)

I've seen it claimed in this thread that "reputation is property," and I'd like to understand that better. Granted that this is a delimited understanding of "reputation," the definition of which would come from a law dictionary and neither Merriam-Webster nor my common sense understanding (which perhaps calls into question my ability to understand your answer, given that law-as-a-special-science is neither my strength nor a particular interest).

If reputation is property -- if we are owners of the "social identity" that we create through our actions (in the minds of the reasonable, at least) -- then why isn't my reputation as a friend or lover equally property and equally defensible in a court of law? Wouldn't the creation of that subset of my reputation have proceeded in the same way as the others we're discussing? Couldn't I suffer legitimate and demonstrable harm through the unfair destruction of that property? And if so, oughtn't I receive recompense?

Also, I believe you've said before that there is no such thing as "immaterial property," yet I'm having a difficult time putting that together with the concept of "reputation as property," as whatever else it may be, I do consider reputation to be "immaterial." Perhaps you could speak to that confusion?

[Grames]

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?

No. Hold such politicians accountable in other ways, such as by voting against them.

The reason is that there is no contract with the politician and no counter-party and so no one has standing to sue. If there were a contract, it would be a contract specifying the exchange of a vote for a specific action once elected. Such contracts are not recognized as legally binding. Once elected the official has the powers of his office and cannot be indicted for using those powers lawfully, nor sued. Extra-constitutional restraints on officials are classified as unconstitutional.

The two means employed to establish some degree of correspondence between an elected representative and the electorate for a legislature are frequent elections and small districts/many representatives. For an executive (which should be unitary to execute anything) the small districts/many officials principle cannot apply and frequent elections tend to hamper execution. Executives are more prone to disregarding campaign promises than legislators.

[Grames]

Also, I believe you've said before that there is no such thing as "immaterial property," yet I'm having a difficult time putting that together with the concept of "reputation as property," as whatever else it may be, I do consider reputation to be "immaterial." Perhaps you could speak to that confusion?

The legal concept of reputation as property is that subset of reputation which is reducible to tangible and objective property. It is technically a shorthand way of referring to the results of reputation.

If reputation is property -- if we are owners of the "social identity" that we create through our actions (in the minds of the reasonable, at least) -- then why isn't my reputation as a friend or lover equally property and equally defensible in a court of law? Wouldn't the creation of that subset of my reputation have proceeded in the same way as the others we're discussing? Couldn't I suffer legitimate and demonstrable harm through the unfair destruction of that property? And if so, oughtn't I receive recompense?

Sure, if that harm can be proven and quantified. But that is the challenge not usually met when it is just a matter of hurt feelings.

Consider boyfriend-girlfriend pair where boyfriend cheats on girlfriend with another girl. Can girlfriend sue? For what? And given the absence of the specific contract that calls for sexual loyalty (marriage) there is no legal obligation for boyfriend to be loyal, and girlfriend has no legal standing. Nor is there any quantifiable harm in her hurt feelings.

What if some girl falsely claims a sexual liaison when there was not, can boyfriend sue? Possibly, it depends on what happens next. (Bieber baby story.)

False rape accusations can be defamatory, but the more important aspect in that case is the crime of making false statements to police.

[DonAthos]

The legal concept of reputation as property is that subset of reputation which is reducible to tangible and objective property. It is technically a shorthand way of referring to the results of reputation.

Huh.

It sounds like you're saying that reputation (or that legal subset of reputation we're discussing) is not property in itself, as it is immaterial, but is represented by the whole of that physical property which "stems" from one's reputation.

I'm known as, say, a good and honest refrigerator dealer, thus we say that the money I've realized through the sales of my refrigerators are indicative of the "property value" of my reputation. Should someone claim that I worship Satan, and my refrigerator sales subsequently decline, we would say that my reputation (as property) has declined that much? And if I do not in fact worship Satan, that I have a suit against the person who claimed it?

Or does it matter that a "reasonable person" might not care whether I worship Satan, pursuant to buying a refrigerator from me? Suppose the charge was that I am an Objectivist, when I'm not, yet we recognize both that 1) a reasonable person would esteem me the more for that, and perhaps be better inclined to buy a refrigerator from me; and 2) that my sales have in fact declined. Would I have recourse to sue against he who's claimed that I'm an Objectivist, when per a reasonable person standard such should have no negative impact on my reputation or my sales?

Conversely, what if someone makes some claim, perhaps a false claim, which adds to my reputation and drives my sales; are they legally entitled to some share in my profit, for their work in increasing the value of "my property"?

And going back a bit... when we say that my reputation-as-property is really the tangible results of my reputation, that means that my reputation-as-refrigerator-dealer is the profits that I realize from my refrigerator sales. Where profits are cash money, it is certainly those sales I make to my customers... but is that all that profits can mean here, in total? Doesn't having my refrigerators in my customers' homes have a demonstrable value as word-of-mouth advertising? (Couldn't I produce an advertising expert in a court of law to say so, and produce a chart to that effect?) What about the future sales that this advertising would generate? Aren't these also part of the value of my reputation? Could I sue my slanderer for this sort of "generational effect"? Or would it relieve me better to have injunctions which would require those who we believe would otherwise have purchased refrigerators from me to buy them, in light of the fact that I do not worship Satan and am thus entitled?

Sure, if that harm can be proven and quantified. But that is the challenge not usually met when it is just a matter of hurt feelings.

Well, all right. Suppose I'm dating a girl and she treats me to pizza every Friday night. I'm slandered against -- my reputation as a lover comes under unfair/untrue assault -- and my girlfriend subsequently dumps me, leading to a loss of pizza (among other things). Could I sue my slanderer for that loss?

Suppose I decide to patronize a prostitute, on account of losing sexual relations with my girlfriend? Could those be damages? And when I court a new girlfriend, what of the funds that I'd spend on dinners/movies/flowers/etc. to woo her?

***

Sorry. I recognize that I'm still more questions than answers at this point, and I don't really expect you to answer me point-for-point. Rather, I ask them all in an effort to try to define the (as-yet) unclear edges of my continued ambivalence on this topic. If you can divine the central misunderstanding I have, you're a better man than I... But I'll keep on trying to understand, and thank you for your patience.

[Grames]

It sounds like you're saying that reputation (or that legal subset of reputation we're discussing) is not property in itself, as it is immaterial, but is represented by the whole of that physical property which "stems" from one's reputation.

Yes, that is what what I am saying. That is also stated in Prof. Post's paper cited in the thread previously:

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." (citation is J. TOWNSHEND, A TREATISE ON THE WRONGS CALLED SLANDER AND LIBEL 108-09 (1877).

The means and form in which the loss was inflicted was by defamation, as opposed to negligence, or interfering with the use and enjoyment of property (the obnoxious neighbor problem), an auto accident, copyright infringement, the escape of a caged wild animal (strict liability even in the absence of negligence), or breach of contract. Ultimately all of these forms of civil wrongs are simply violations of property rights. A single legal principle such as "do not violate property rights" is not sufficient to provide guidance for how to act to respect rights or how to write the laws or decide cases. It is not obvious and rather must be explained in repetitive voluminous detail, what is property and how abstractions of property such as intellectual property law and defamation are justified, and therefore what constitutes a violation of right in those cases. For defamation, the justification involves how reputation causes the accumulation of tangible property, and that therefore reputation can be inferred to have the value of what tangible property it creates. A theory of how reputation is created and in what way it satisfies the essential characteristics of property completes the justification.

That mountain of verbiage which is the tort law is sorted and classified conceptually. All of the laws and case precedents are in a genus of law concerning property rights, and they are differentiated from each other in the means by which property rights are asserted and violated. They also get names or at least descriptive phases: negligence, strict liability, intellectual property, defamation, etc. "Reputation considered as property" refers to the value of property caused by having a certain reputation, and cause is the essential distinction to make from other property one owns. The reputation mechanism is the cause of both the benefits gained by good performance and the harm inflicted by bad performance or a defaming statement.

I'm known as, say, a good and honest refrigerator dealer, thus we say that the money I've realized through the sales of my refrigerators are indicative of the "property value" of my reputation. Should someone claim that I worship Satan, and my refrigerator sales subsequently decline, we would say that my reputation (as property) has declined that much? And if I do not in fact worship Satan, that I have a suit against the person who claimed it?

Sounds like a winner.

Or does it matter that a "reasonable person" might not care whether I worship Satan, pursuant to buying a refrigerator from me? Suppose the charge was that I am an Objectivist, when I'm not, yet we recognize both that 1) a reasonable person would esteem me the more for that, and perhaps be better inclined to buy a refrigerator from me; and 2) that my sales have in fact declined. Would I have recourse to sue against he who's claimed that I'm an Objectivist, when per a reasonable person standard such should have no negative impact on my reputation or my sales?

This is a much tougher case to win, as really how many people even know what an Objectivist is or is supposed to act? Being falsely accused of atheism is a better example. Christians can reason and apply the common law principles at stake, and in fact a mixture of Protestant, Catholic, and Church of England Christians originated the common law principles at stake. In the past, in a community which is largely Christian being falsely accused of atheism would be defamatory. So would being falsely accused of being a Catholic or Jewish in a Protestant town. The "reasonable person" standard assumes a person having common sense and knowing things that should be commonly known, it does not entail "atheism is correct" is a legally enforceable doctrine in any way. It is reasonable to infer that a Christian would avoid someone hostile to Christianity. It is reasonable to infer that knowingly falsely accusing a person of being hostile to the rest of the community was done maliciously, with deliberate intent to harm.

Conversely, what if someone makes some claim, perhaps a false claim, which adds to my reputation and drives my sales; are they legally entitled to some share in my profit, for their work in increasing the value of "my property"?

I don't know that one. Once the court process starts with the discovery phase, if the assistance is based on a false claim that will likely be exposed publicly and the value attempted to be claimed would likely evaporate. The value of disseminating true claims as in a newspaper, tv station or book is presumed to be supposed to be priced into those commodities, and authors and reporters have no property in the underlying truths reported.

And going back a bit... when we say that my reputation-as-property is really the tangible results of my reputation, that means that my reputation-as-refrigerator-dealer is the profits that I realize from my refrigerator sales. Where profits are cash money, it is certainly those sales I make to my customers... but is that all that profits can mean here, in total? Doesn't having my refrigerators in my customers' homes have a demonstrable value as word-of-mouth advertising? (Couldn't I produce an advertising expert in a court of law to say so, and produce a chart to that effect?) What about the future sales that this advertising would generate? Aren't these also part of the value of my reputation? Could I sue my slanderer for this sort of "generational effect"? Or would it relieve me better to have injunctions which would require those who we believe would otherwise have purchased refrigerators from me to buy them, in light of the fact that I do not worship Satan and am thus entitled?

You are welcome to claim as much as you can prove to a jury. If I were a jury member, I don't think I would entertain such speculative damage claims that go very many years into the future.

Well, all right. Suppose I'm dating a girl and she treats me to pizza every Friday night. I'm slandered against -- my reputation as a lover comes under unfair/untrue assault -- and my girlfriend subsequently dumps me, leading to a loss of pizza (among other things). Could I sue my slanderer for that loss?

You can try. I would think the value of "other things" would out weigh the value of the pizza, and if not you are better off without her.

The legal principle of de minimus applies. de minimis non curat lex ("The law does not concern itself with trifles") In this case, the trifle is just gossip.

There are small claims courts, but even they might not take on a such a petty case.

Suppose I decide to patronize a prostitute, on account of losing sexual relations with my girlfriend? Could those be damages? And when I court a new girlfriend, what of the funds that I'd spend on dinners/movies/flowers/etc. to woo her?

No, you do not have a right to be provided a sex life or a new girlfriend.

[DonAthos]

Yes, that is what what I am saying. That is also stated in Prof. Post's paper cited in the thread previously:

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." (citation is J. TOWNSHEND, A TREATISE ON THE WRONGS CALLED SLANDER AND LIBEL 108-09 (1877).

Well... I'm not really interested in continuing to try to tease out this distinction here and now, but I'm not quite sure that "Prof. Post" helps to clarify this issue for me. In what he quotes to elaborate his point -- Prof. Townshend, I suppose -- there's a distinction made between "the property" and "the reputation"; specifically, that reputation is not itself protected. While property is, and while perhaps he infers certain property as resulting from reputation, it implies to me that Townshend does not see reputation as property. (For we protect a person's property, do we not?) That's different from the conclusion that Post draws, however, and even apparently from that very quote.

I'm certain that it must be my own issue, and that others reading along (should any exist) are understanding just fine. But for my part, Post's statement amounts to a hazy and indistinct presentation of what reputation is... or property, for that matter.

You know, it's just that I find a statement like "reputation is property" to need a bit of explanation. I'm interested in property -- in rights generally -- and if a person owns his reputation (which I continue to believe is comprised of other peoples' opinions; has that been shown false?), then I need to adjust my understanding of the concept. Over the course of our discussion, however, we've determined that we're actually discussing a "subset" of reputation (not reputation in total, which can include other things which for some reason don't belong in a court of law); that this is reputation in a specialized legal context, and we can't expect our normal understanding of the concept to apply; that we're talking about the results of reputation and not the reputation itself; that reputation is immaterial, and therefore not property in itself (as there is no such thing as immaterial property).

I don't know, but it seems to me that this amounts to more than/different from the original claim which caught my eye: "reputation is property."

That mountain of verbiage which is the tort law is sorted and classified conceptually. All of the laws and case precedents are in a genus of law concerning property rights, and they are differentiated from each other in the means by which property rights are asserted and violated.

Then, when we're talking about the damages in a defamation suit, in terms of actual tangible property ("material" property; the only kind), we're talking about property that we believe a person would have acquired had the defamation not occurred. Those are really the (tangible) property rights at stake, are they not? Those rights I have over property I've never acquired, through trades I've never made.

If I'm selling refrigerators, and we conclude I would have sold one to you (though did not in reality), then we've concluded that I have a right to your money? Because we suppose that in a world where the defamatory action had never taken place, you would have gone through with this purchase? (Though in practice we wouldn't force you to buy my refrigerator, but instead take an equivalent amount from my defamer.)

But how do I have a right to your money before you've agreed to trade it to me? Because it's "reasonable" that you would have done so? Doesn't this discount your agency, and the fact that you might have chosen to do otherwise? I can "own" my reputation and seek to improve it all I'd like, but I can't compel you to purchase from me at any point, nor say with certainty that you will do so in the future. So how can I claim with certainty what you would have done in the past under X circumstances? Is this just skepticism on my part? While I am certain about the sun rising on account of its nature, it seems to me that the nature of man, and specifically the nature of man's volition, makes similar "certainty" as regards man's actions impossible. Isn't a claim to "property I would have had, if not for defamation," ignoring the distinction between the metaphysical and the man-made?

I continue to be stymied by my (lack of) understanding of this idea. It makes me think: suppose I own a house and I'd like to put it on the market. I think it has a certain value, and perhaps that's borne out by statistical analysis. Yet a week before my sale, my neighbor goes ahead and sells his house for some drastically lower price -- we'll even call it an "unreasonable price." My neighbor's actions have "damaged" my home's value, perhaps; I can say (though as above, I don't know I can guarantee) that, had my neighbor not done so, I would have made more money through my own sale. But does this mean that I ought have recourse to sue my neighbor? Have my rights been violated? Clearly this is a different issue altogether -- perhaps it doesn't belong in this discussion... And yet, I find compelling similarities in what I take to be the principles at stake.

Where the "value" of our possessions lies in the assessment of other people (as it does with my home's market value)... I don't know that we own, or have right to, the value in that sense... or that we have rights over the physical, tangible property that we believe ought (in reason) emanate from that value. I just can't get around that yet.

This is a much tougher case to win, as really how many people even know what an Objectivist is or is supposed to act? Being falsely accused of atheism is a better example. Christians can reason and apply the common law principles at stake, and in fact a mixture of Protestant, Catholic, and Church of England Christians originated the common law principles at stake. In the past, in a community which is largely Christian being falsely accused of atheism would be defamatory. So would being falsely accused of being a Catholic or Jewish in a Protestant town. The "reasonable person" standard assumes a person having common sense and knowing things that should be commonly known, it does not entail "atheism is correct" is a legally enforceable doctrine in any way. It is reasonable to infer that a Christian would avoid someone hostile to Christianity. It is reasonable to infer that knowingly falsely accusing a person of being hostile to the rest of the community was done maliciously, with deliberate intent to harm.

Then what is "defamatory" depends on the composition of the "surrounding society" as much as anything else, and the value of a person's reputation may lie in their being known as a Christian, or atheist, or etc. This does say clearly to me that a person's reputation is an aggregate of the evaluations of others, though I know that we've disagreed on that point previously; we're forced to consider, not simply the facts of a man's life as assessed by a "reasonable person," but as assessed by his particular community, though it may be comprised of fundamentally irrational people.

Among a community of Satanists, after all, it would be defamatory to accuse someone of else-than-Satan-worship. What's defamatory to us in the USA might not be defamatory in China, the difference being how others in society alter their evaluations and subsequently their economic activities. While we may sue for what we believe to be the resultant difference in economic activity, the change to reputation lies in how others evaluate us. In claiming to own our reputation, we are claiming to own the appraisal of other people.

The legal principle of de minimus applies. de minimis non curat lex ("The law does not concern itself with trifles") In this case, the trifle is just gossip.

There are small claims courts, but even they might not take on a such a petty case.

No, you do not have a right to be provided a sex life or a new girlfriend.

Given everything else that you've said, to the extent that I've understood it (which come to it, may not be all that far...?), I don't understand this distinction.

Doesn't "small claims" have to do with the value, and not the nature, of the suit? But I don't know at all, and concede whatever correction you supply. Rather, if we believe that a person creates his social identity -- his reputation -- and owns it a real sense, and is entitled to the fruits of his reputation... then how does this not hold true for the kinds of relationships and damages I've questioned here?

If I have a girlfriend and realize specific goods from it -- let's say pizza once a week, she cleans our apartment, we have sex, etc. -- and if a defamer's actions lead to my losing all of that, why exactly doesn't my case have merit? Aren't I being "deprived of my actual past" in precisely the manner by which you've previously claimed that reputation functions? If the claim is that I can't put a monetary value on my losses, I'd ask "why not?" While I may not be able to give a dollar amount to every aspect of my hypothetical relationship, there are ways of supplying a fair market value for pizza, for maid service, for escort services, and generally for those activities which I'd now have to pay for out of pocket (in addition to the "replacement cost" of finding a new girlfriend). That's real economic loss, isn't it? And if we can attribute these losses directly to my defamer (according to the same "reasonable man" standard we've previously agreed to), then why shouldn't it be recognized in a court of law?

Not that I believe it should. I just don't understand the distinction between this and your case generally, and that leads me to conclude that I still don't understand these matters in principle. It's not you, I'm sure, it's me. And with that, I think I've expressed my confusion as well as I can. You're welcome to respond to any or all of this post, and if I see an opportunity to contribute more I will... but I don't want to just belabor the point that "I don't get it," so I may not respond further. Thanks again for your patience; I'll continue to reflect on all that you've said.

Edited November 28, 2011 by DonAthos