- Is defamation (libel and slander) related to property rights, given that speech that harms a person’s reputation can affect one’s ability to engage in commercial trade?
- Related to the tort of defamation is the tort of disparagement, which pertains to false statements about a product or service that negatively impact the market value of the product of service.
- Do Objectivist ethics take a strong Freedom of Speech stand, such that defamation and disparagement should NOT be offenses for which the government’s courts allow lawsuits and money damages as a remedy and/or punishment?
- Would an Objectivist say that the solution to insulting false statements is simply more speech to counter and correct the false statements?
- I looked in The Ayn Rand Lexicon , but I could not find any entry that addressed this topic.
- I have this idea that Howard Roark would not care about people defaming him with false statements and rumors, and that he would not sue over it or even be concerned about it. But maybe I’m wrong about that.
- Ayn Rand was defamed by false statements about her and her philosophy for many decades. Yet, I far as I know, she never sued anyone for libel or slander.
The question was discussed extensively here, search for “defamation”, “slander” and “libel”. There is no definitive answer given by Rand. You will find in the various discussions all of the positions that a reasonable person would expect. The ethical answer is rather straightforward. Defamation is a specific kind of making a flse statement, as such it is immoral, and while Rand did not say “defamation is immoral”, it is inescapable that that is the conclusion that follows from Objectivism
However, defamation is specifically a legal concept, so surely you are asking the legal question. As such, the question has to be answered based either on contract law and the enforceability of contracts, or a violation of a property right. People here has advocated all of the imaginable stances, and objected to them equally. If you read those posts, you will see that I don’t like the “fraud” argument, nor the idea that saying something bad about a person constitutes force. There was an almost viable argument that one has a right to “justice” whereby a person could not deprive you of that right by persuading others of a falsehood, but the reductio ad absurdum of legally enforcing a duty to speak honestly is some pretty scary restrictions on speech. And thus I support the perspective of countering falsehoods with truth.
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Law promoting truthful disclosures in economic exchanges would seem in step with law against fraud, which entails takings of the property of others by deceit and therefore without their consent. If someone defames a product or its process of manufacturing or its way of raising capital, say, and the assertion is a lie—say an attempt to reduce demand for that product and elevate purchase of one’s own competing product—then it would seem that consumers are being defrauded. A public trial getting to the truth would seem to reset the market exchanges to greater truth under which customers can make choices. Then too it would seem that the firm damaged by lost sales on account of the defamation could be made approximately whole and the liar making the defamation deprived of fraudulently gotten gains.
I’m unsettled about all that. What do YOU think about it, LB?
Beyond the primary question of what is true and right are secondary questions such as the one headlining this thread. Offhand I do not see a contradiction of Objectivist ethics or conception of individual rights in my proposed way of looking at defamation (at least some circumstances of defamations) in the first paragraph of this post.
The law of fraud is that if one person induces another to engage in a trade by making a knowingly false claim, they can be held liable for the damage visited on the other by such a claim. To be clear, this is exclusively about a contract between A and B premised on a false statement that caused A (or B ) to agree.
If I offer you, Boydstun, a thing on the premise that it is a functioning supercomputer, in exchange for $1,000, but it is really a broken clamshell phone, that may constitute fraud and I would be liable for that $1,000, and you can sue me for that loss. If you sell that broken phone to LoB, you may be liable to him, I don’t really care, because my liability stops with you. That is the fundamental limit on fraud: only the person making the claim to a person acting on the claim in a specific contract is liable. If I lie to you, I am not thereby liable to every person who may have also heard the lie. The only time when fraud becomes relevant is when A lies to B and therefore induces him to engage in an agreement with A. This understanding of the nature of law has been completely corrupted by the modern fictitious indeed fraudulent (ergo criminal) belief that society at large is a universal victim whenever there is a breach of contract or other tort. Consumer protection laws which prohibit false advertising are not completely inconsistent with laws against fraud, though they do not require proof of harm, nor proof of falsity.
Defamation only shares with fraud the concept “false”, otherwise there is no similarity. The person who “accepts” the defamatory claim has no standing to sue, the person whom the claim is about has not accepted the claim and acted on that basis. The plaintiff is effectively asserting a property right over the minds of unnamed third parties. In business dealings and even today, the competing businesses have a superior alternative to litigating squabbles about possibly misleading factual claims about products: present the facts to the public, let the market decide whether the claim is true and / or material.
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2 hours ago, DavidOdden said:
The law of fraud is that if one person induces another to engage in a trade by making a knowingly false claim, they can be held liable for the damage visited on the other by such a claim. To be clear, this is exclusively about a contract between A and B premised on a false statement that caused A (or B ) to agree.
. . . Only the person making the claim to a person acting on the claim in a specific contract is liable. . . .
When you say “contract” you don’t mean necessarily a written contract, right?
David, what do you think about the libel cases such as Cary Grant against Chevy Chase or the one by Carol Burnett against National Enquirer? If I understand you correctly, the undermining of Grant’s career as a heterosexual leading man or to Burnett’s career image as a kind, warm, and well-mannered person by outright fabrications would rightly be without legal recourse because the damage is through the intermediaries of the entertainment consumers. Right?
3 hours ago, DavidOdden said:
In business dealings and even today, the competing businesses have a superior alternative to litigating squabbles about possibly misleading factual claims about products: present the facts to the public, let the market decide whether the claim is true and / or material.
I understand that under current law a business’s ability to present the facts to the public may be restricted.
Rand was talking about legal action against the Saturday Evening Post when they profiled her in 1961 (Letters, 586 - 589, 591). She never followed through, and, having seen the article, I can’t believe she would have had a case, even before the public-figure doctrine.
1 hour ago, Doug Morris said:
I understand that under current law a business’s ability to present the facts to the public may be restricted.
There are numerous restrictions on when businesses can say. It used to be that lawyers could not advertise; similarly you couldn’t advertise prescription drugs until they devised the current bizarre rules. If, for example, a company is accused of hiring slave labor to make their goods, as far as I know they can present whatever refutation of the accusation they can put together, as long as it passes the basic truth test. Maybe you have something more specific in mind.
2 hours ago, Boydstun said:
When you say “contract” you don’t mean necessarily a written contract, right?
David, what do you think about the libel cases such as Cary Grant against Chevy Chase or the one by Carol Burnett against National Enquirer? If I understand you correctly, the undermining of Grant’s career as a heterosexual leading man or to Burnett’s career image as a kind, warm, and well-mannered person by outright fabrications would rightly be without legal recourse because the damage is through the intermediaries of the entertainment consumers. Right?
A contract is any agreement paired with mutual consideration, writing only matters in determnig for certain what was agreed to.
What I think about false claims about celebrities is the same as I think about false claims about anyone, including not just negative statements but positive statements – false, unjustified praise. I hate it, I just don’t see any way to force people to only speak the truth, unless we throw open the floodgates for litigation. X receives unjust false praise from Q for his work and on that basis secures a job with W that would have otherwise gone to Y. Y would then have a cause of action against Q for unlawful tortious interference with business relations with W. If properly enforced, it would probably change the average Yelp rating from 4.8 to 2.5, which is not a bad thing. It would largely silence the critics of Trump, as well as those of Biden, who tend to make some not provably true statement about the candidate.
Some people base their success on what they create so that the discussion is about what they create and not who they do or don’t sleep with or put up their nose. Some people base their success on other people’s evaluation of them, so they are vulnerable to unreasonable fluctuations in status. To survive, they have to find a way to keep that which they initially gained. If I decide for no reason that Cary Grant is homosexual and therefore refuse to patronize his movies, that is not initiation of force against him. If my neighbor says “Did you know that Grant is a homosexual?” and I therefore stop watching his movies, that is not initiation of force against Grant. Likewise if someone says that Rock Hudson is a homosexual and I stop watching his movies, or says that Rock Hudson is not a homosexual and I switch from Cary Grant movies to Rock Hudson movies… under all of the imaginable permutations, that is not initiation of force against Hudson or Grant.
In lieu of a contractual right, you would have to rely on some kind of trespass to property, a thing that you own. The contents of another man’s mind???
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Ayn Rand put forward these principles:
“No man may initiate the use of force against others, . . . . Men have the right to use physical force only in retaliation and only against those who initiate its use.”
This is no moral news. Most everyone already accepted it as a moral norm for individuals in their relations with each other and for that matter relations between business firms (and their private police) in relation to unions, and again, even a norm between tribes or nation states. The context in which most of us have sufficient notion of “force” is in relations between private adult individuals. But even there, doesn’t one have to already have in hand (in head) the norm that is justice in order to have the full notion of force? Without the notion of justice, I doubt one can justify enforceable rights in property, which Rand (and I) regarded as essential to the right to human life.
To say that initiation of force is unjust seems easily agreeable. But to say that every injustice is a case of the initiation of force needs some extended argument.
Rand understood objective justice to be a type of justice. Objective justice in relation to other persons is objective judgments in interpersonal interactions based on objective judgments of the character and actions of self and others. In this context, we call objective justice simply justice, the latter being a genre of the former. Rand held that each individual “has the right to choose his own happiness but no right to decide that his happiness lies in the misery . . . of another.”
Wrongly, I should say, Rand held that “a right cannot be violated except by physical force. One man cannot deprive another of . . . nor forbid him to pursue his happiness, except by using force against him.” That initiation of force is a violation of rights is clear. But more must be argued for the thesis of the preceding quotation. I was employed at a nuclear power plant during the 1980’s. I was gay, and so near as I could determine without risking my employment, the regulations of The Nuclear Regulatory Commission inherited from its predecessor The Atomic Energy Commission forbade the employment of homosexuals at such a facility. Eventually the heads of the NRC began to drop hints that they were devoting no effort to finding out the employees’ love life. (Naturally everyone was fingerprinted by the FBI, which facilitated criminal-background checks—no problem.) By the mid-1990’s, our company (partly because executives had gotten to see my person and performance working directly with them), whose headquarters were in Chicago, adopted a non-discrimination policy in respect of sexual orientation (the Board of Directors were receiving telephone death threats the night before the new policy was to be voted on should they vote for the new policy.) They were not required to adopt that policy by law, and this was before the city of Chicago had adopted such an ordinance on employment. They did it because they thought it was right, it was just. (And perhaps also labor competition, especially for IT skills.)
My happiness would not have been ended had I earlier been denied employment at the plant. I’d had losses before, and I was resilient. Nevertheless, this seems the sort of case, where, had bigots been at the head of the NRC or the corporation and had they kicked the gays and lesbians out of the industry purely from their hatred (this was no longer a time in which gays and lesbians could be widely susceptible to blackmail for nuclear secrets, because the general culture had come to no longer largely vilifying and suppressing homosexuality). That would be a case of government agency and corporate leaders having a right to decide that their happiness lies in the misery of another by barrier to employment for an unjust reason.
I’m pretty sure that cases can be multiplied which indicate it is false that a right cannot be violated except by physical force. Violation of rights by initiation of force may be the focal form of all rights violations, but something is still missing from rights theory in the surround and the grounds. A plausible general argument is needed to maintain in complete generality that rights can only be violated by initiation of force or that non-initiation of force is all there rightly is to enforced justice.
Harry Binswanger tackles these challenges in his contribution to Foundations of a Free Society – Reflections on Ayn Rand’s Political Philosophy (2019) on pages 269–75. On the topic of defamation, he writes:
12 hours ago, Boydstun said:
Rand understood objective justice to be a type of justice. Objective justice in relation to other persons is objective judgments in interpersonal interactions based on objective judgments of the character and actions of self and others. In this context, we call objective justice simply justice, the latter being a genre of the former. Rand held that each individual “has the right to choose his own happiness but no right to decide that his happiness lies in the misery . . . of another.”
This is the “right to justice” argument that I mentioned earlier. The leading idea there is that the function of government is to protect rights, therefore the primary inquiry must be what actions a man has a right to undertake. Voluntary and honest trade would be a prime example of an action that you are free to choose. In the earlier defamation discussions (and other discussion here), it was posited that there is no right to be irrational (initiation of force being a prime example of irrationality). Anti-discrimination laws can be justified on the grounds that discriminating against a person for their race is irrational, and you do not have a right to be irrational. I am not familiar with your Rand quote that an individual “has the right to choose his own happiness but no right to decide that his happiness lies in the misery . . . of another”, but I would want to see the context to see why one does “have the right to decide that their happiness lies in the happiness of another”. In “The Objectivist Ethics”, Rand does indeed supply sufficient leeway regarding the purpose of government and man’s rights:
The only proper, moral purpose of a government is to protect man’s rights, which means: to protect him from physical violence—to protect his right to his own life, to his own liberty, to his own property and to the pursuit of his own happiness. Without property rights, no other rights are possible.
Uncompensated infringement of intellectual property requires no physical violence nor its threat, indeed garden-variety burglary does not require physical violence. Many actions interfere with an individual’s pursuit of happiness without involving physical violence. Then if the proper role of government is to protect property rights, the Estate of Ayn Rand would have a pretty solid case against myriad individuals who have harmed Ayn Rand’s reputation by mis-stating what Objectivism holds. The huge flaw that I see in the attempts to rationalize anti-defamation laws is that they flagrantly ignore the opposite wrong of false praise, which is just as evil as false condemnation.
"Anti-discrimination laws can be justified on the grounds that discriminating against a person for their race is irrational, and you do not have a right to be irrational. "
Irrationality per se can not legislated against, what would that even look like? In the context of rights protection and justice; causing harm to another is sine qua non the operable determination.
“Anti-discrimination laws” should only be applicable to governmental policies and agencies. A private business that refuses to hire redheads or for any other reason attached to an individual’s immutable characteristics, could be construed as objectively irrational, but in the context of a private enterprise where is the ‘harm’ to be located?
The harm in barring redheads, solely for expressing the qualities of redheadedness, for employment in a municipal refuse collection capacity causes harm in that ‘public sector’ job opportunities should be ‘open’ to all applicants and there can be no rational case that allows for skin/hair pigmentation to enter into the fitness of job performance. Even here the reason for barring the barring isn’t sufficiently grounded in an absence of irrationality as much as what qualifies as a member of the public.
@DavidOdden – Nice points. Thanks for this discussion.
You wrote: “I am not familiar with your Rand quote that an individual ‘has the right to choose his own happiness but no right to decide that his happiness lies in the misery . . . of another’.”
I took this from an entry in the Ayn Rand Lexicon. They were quoting from a 1964 pamphlet of Rand’s titled “Textbook of Americanism”, which contained articles that were written for and appeared originally in ‘The Vigil,’ a publication of The Motion Picture Alliance for the Preservation of American Ideals. I’ve not succeeded in locating an announcement in the Objectivist Newsletter, as had been usual, for this pamphlet for sale by NBI. That makes me wonder if Rand no longer thought everything in the pamphlet correct.
In this section, Rand was explaining that since individual rights are held by all men, the rights of one man cannot and must not violate the rights of another. One of her ensuing examples is that a man “has a right to choose his own happiness, but no right to decide that his happiness lies in the misery (or murder or robbery or enslavement) of another.”
I notice that such a position does not entail curtailment of any faulty choices for happiness one might make that are not aimed at all on other persons and their circumstances.
- At the present time in the USA, it has become quite common for people to say that a fellow citizen is a Socialist or is a Fascist or is like Hitler or is like Stalin.
- Of course, under the law, defamation lawsuits generally cannot be brought by “public figures.”
- But what about the rest of us?
- If my neighbor calls me a socialist or a fascist at a school board meeting, and if I am not a member of any organization that explicitly professes socialism or fascism, should I be able to sue my neighbor and get money damages?
- Or should I NOT be able to sue my neighbor on the basis that my neighbor should be free to express his OPINION that when I speak, I am expressing the philosophy of socialism or fascism?
- But what if my neighbor’s public accusations that I am a socialist or a fascist convince my wife and my employer, and my wife divorces me, and my employer fires me? Can I sue my neighbor for defamation? Should I have the opportunity to prove in court that I do not adhere to or promote the philosophy of socialism or fascism, and thereby gain court-ordered money compensation from my neighbor for his damaging and unjustified opinion about my political philosophy?
- When in 1949 the film version of “The Fountainhead” was released, the Communist newspaper “Daily Worker” said it was an “openly fascist movie.” Should Ayn Rand and the filmmakers have been able to sue Daily Worker for that assertion, perhaps under the legal theory of commercial disparagement?
- If a person does not call himself a socialist or fascist, and if he is not a member of any organization that expressly calls itself fascist or socialist, can it ever be said that it is a “fact” that such a person is fascist or a socialist? Aren’t all instances of philosophical analysis and philosophical conclusion drawing just matters of opinion?
6 It seems legally weird to ascertain if someone is an “Ist” fascist, communist ect, other than perhaps arsonist. For defamation you need to prove published statements were knowingly false, how would a court determine when an accusation eg fascist! , is ‘false’ ? and if your wife leaves you based on hearsay from a neighbor about your character, especially demonstrably false characterizations, good riddance
- Suppose a person supports a right to a living wage job, such that the government is required to supply a government job to anyone unable to find living wage employment in the private sector.
- And suppose that person says that position of his is not socialism, but it is simply an application of the Bible’s teaching that “If you do not work, you shall not eat.”
- And suppose this person is a member of a Christian church, and he is not a member of any organization that expressly endorses or promotes socialism.
- But suppose a neighbor persists in calling the person expressing that view a “socialist.”
- And suppose the neighbor’s “socialist” name calling causes the man to lose all his customers at his small business.
- Should the person advocating for gov’t guaranteed full employment be able to sue his neighbor for defamation?
It would probably depend on the legal argument made vis a vis published statements.
What about bringing a suit against a neighbor that tells everyone you are a capitalist and only run your business for profit and ‘shames’ your customers away , especially given the current political environment, should you have a case ?
11 minutes ago, tadmjones said:
What about bringing a suit against a neighbor that tells everyone you are a capitalist and only run your business for profit and ‘shames’ your customers away , especially given the current political environment, should you have a case ?
- Yes, that is an interesting hypothetical.
- In some regions, or among some populations in the USA, it would seem to be a highly derogatory statement to call someone a profit-seeking capitalist. Ha!
- In fact, I think it is safe to say that all the big corporations strive mightily to develop a public reputation as being concerned about much more than just producing valuable products/services and trading those in the free market for a private profit.
- Most big corporations, and many small businesses, seem to strive to develop a reputation for being public servant in essentially an altruistic sense. I think they fear being tagged as greedy (even if gaining private profit is all they actually think about).
- Imagine Rep. Alexandria Ocasio-Cortez leading new HUAC hearings and asking, “Are you now or have you ever been a Capitalist?”
3 hours ago, tadmjones said:
Irrationality per se can not legislated against, what would that even look like? In the context of rights protection and justice; causing harm to another is sine qua non the operable determination.
Despite popular belief, you can legislate morality and you can legislate against irrationality. The government can do anything it damn well pleases. Let’s pretend that you said “The government cannot properly legislate against irrationality”, even that is false (murdering a person is irrational, and a government must properly legislate against it). Murder per se is one form of irrationality per se. You cannot mechanistically define “murder” in such a way that it properly prohibits all and only the acts that right-thinking people agree should be prohibited, but you can non-mechanistically define murder.
The general form of a law against irrationality is to declare that no man can act in a manner that prohibits a person from exercising their rights, then you separately enumerate the rights of individuals. We typically agree that a man has the right to exist, so you may not murder your neighbor. We typically agree that a man has the right to the product of his mind, so you may not take your neighbor’s cow so that you may live. But we also typically agree that you may take your neighbor’s cow if he agrees – without the use of force – to transfer ownership of the cow to you. Somehow we have to arrange these principles in an explicit hierarchy.
Unfortunately, the philosophical system that Rand developed does not include an explicitly numbered hierarchy, and also does not include a complete list of fundamental conclusions (as opposed to specific examples, which are a different thing). We typically agree that Galt’s Speech is the essence of Rand’s philosophy, but we don’t disparage her other statements as being somehow less worthy of consideration. A simple statement that the proper function of government is to protect rights is plainly inadequate, given that it has been “discovered” that we have a right to a chicken in the pot and no right to abortion. Which then entails a specific definition of “rights”. The primary candidate is that a person has the right to exist free from physical violence, because the mind is not “free” to choose when threatened with physical violence. But some people want more than that, and I do understand that desire.
One tack that has been taken is to redefine “force”, so that fraud is deemed to be a “kind of force”. This is somewhat credible, in that a person who commits fraud had taken possession of another man’s property, and keeps it by force rather than returning it to the owner. Physical transfer of an object become an actual transfer of title only conditionally, and the conditions for transfer of property were not satisfied in the case of fraud, the owner may rightfully re-possess their property and the fraudster may not properly defend their possession with force.
Perhaps next on the list of rights not requiring force to violate is the right to your lost property. No agreement is required, there are no “conditions”, you simply have a item which one person recognizes has value so he takes and keeps it, while the earlier possessor failed to maintain control and failed to keep what was their property. Yet we recognize that it is still their property, and if necessary, possession can be re-aligned with that property right by force.
Which, all told, means that “property rights” end up being a secondary right derived from the right to exist free from violence – it exists even when violence is not part of a transfer of possession equation. To the extent that we can objectively identify a person’s “property”, and what constitutes an infringement of that right, this seems unobjectionable. The mind can produce ideas, opinions, desires and aspirations, as well as concrete works: which products of the mind can be deemed to be protected property? A reputation is not the product of the mind of the “subject”, it is the product of the actions of many people, and the minds of many people, not just the “subject” of the reputation. I would like to see a coherent property-based argument for laws restricting speech that might damage a person’s reputation, and to be logically consistent, it should explain why a person is entitled to an unjust benefit of positive unearned reputation.