Kinsella, “Jacob Hornberger on Defamation and Alex Jones,” Freedom and Law (Oct 22, 2022)
Normally I agree with Jacob “Bumper” Hornberger, who is normally a stalwart libertarian, but this is the worst thing I can recall ever coming from his pen. Bumper has gone off the rails here. His take is simply not a libertarian perspective.
For one: defamation law is totally unjust and unlibertarian. This has been known for some time now. See Rothbard and Block, ch. 7. This is just black-letter libertarian law now.
Also: libertarians are not in favor of the state’s law on torts just because they call it a tort. Intentional infliction of emotional distress is not a legitimate tort. Rights are violated only by invading borders of or affecting the physical integrity of an owned resource. Period.1
And finally, the fact that Jones was aware of the existence of these (unjust) laws also doesn’t mean he “got what he deserved.” After all we know that drugs are illegal; does that mean people locked in prison now for possessing cocaine “got what they deserved”? No.
I was not aware “Bumper” was bad on defamation, bad on torts, and leaned toward legal positivism and victim blaming. This is disheartening and dismaying.
This makes me suspect Hornberger is also pro-patent and copyright (IP or intellectual property), since this is what legal positivism would lead you to, and also, defamation is really a form of IP which “Bumper” apparently supports; plus IP is “in the Constitution” so he, as a Constitution-supporting “minarchist,” and probably influenced by Ayn Rand, probably supports IP too. If so, sad.See related posts on Facebook and Twitter.
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Update: In a “Part 2” followup article, Hornberger writes:
Yes, I know that there are libertarians who oppose libel and slander laws. They say that they are inappropriate because they don’t involve the initiation of force. That’s why some libertarians also see nothing wrong when people commit fraud against others. They say that fraud, like libel and slander, does not involve the initiation of force and, therefore, should not be actionable.
Hornberger is deeply confused here. I know of almost no libertarians who say fraud should not be actionable. (Libertarian critic James Child accused libertarians of this years ago, with no basis, as I have already explained.)2 The case for defamation law is not at all the same as the case for fraud law, and the arguments for these laws are distinct. Hornberger is trying to make it seem that if you are okay with fraud law you ought to be okay with defamation law.
Fraud is simply a species of trespass or theft—theft by trick or deceit, in effect. It is a use of someone’s owned resource without their (informed) consent. That is why it is a simple ancillary consequence of basic property rights. If I use your car, your lawn, your house, or your body, without your permission, that is a type of trespass, tort, theft, conversion, etc. The permission or consent granted by the owner, to be effective, must (a) not be coerced, and (b) must be informed. In an exchange where A hands over his property x to B in exchange for some action or title transfer by B, then the title to x is conditional on B’s truthful representations about some material matters. If B is lying then the condition for the transfer of x is not fulfilled, and thus B is now in possession of A’s property without the title to it. I go into this in Fraud, Restitution, and Retaliation: The Libertarian Approach and also, re speech acts that can be part of aggression, see Causation and Aggression.
So the legal prohibition against fraud is just a prohibition of trespass; that is, it’s enforcing property rights by prohibiting unconsented-to uses of someone’s owned resources.
This has nothing to do with defamation law which in fact does limit free speech in the name of protecting a right to one’s “reputation”. There are and can be no property rights in your reputation since your reputation is simply what other people think of you, and they have a right to think whatever they want about you, even if it’s false, and even if it’s based on lies from your “defamer.”3
So it makes perfect sense to oppose fraud and support the legal prohibition of fraud, but to oppose defamation law. Fraud law is compatible with property rights; defamation law violates property rights. Hornberger is surprisingly weak on the basics of libertarian theory. He writes like a college student who just read Ayn Rand or something.
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Comments:
Start with what movement is
Movement is self-ownership in action.
Every step, gesture, and motion exercises control over your own body. There is no prior claimant standing between a person and their peaceful bodily action.
When the state restricts such movement absent trespass, contract, or aggression, it infringes liberty.
What intellectual property actually is
Intellectual property is a legal construction.
Copyright begins with the Statute of Anne (1710), which reorganized monopoly privilege over printing under parliamentary control. Patent systems originate earlier still, with the Venetian statute of 1474 and later English Crown grants issued as discretionary monopolies.
These systems created exclusive claims over non-scarce patterns. No preexisting rights were formalized. New privileges were granted and the state authorized to enforce them.
When monopoly claims reach the body
Applying IP to choreography changes the nature of the claim.
It is no longer about copying an object. It is about whether a person may move their body in certain ways without permission.
No trespass occurs. No contract binds the mover. No aggression is alleged.
What is enforced is a state-created privilege that overrides peaceful bodily action.
The Beyoncé disputes as illustration
In De Keersmaeker vs. Beyoncé, the objection was not that property had been taken, but that a sequence of movements had been previously performed and that this prior use justified restricting another person’s bodily expression.
In JaQuel Knight’s effort to copyright choreography, the implication is explicit. If such claims are valid, ordinary people can be told that some movements are not theirs to perform.
Liberty becomes conditional.
The constitutional tension
The Supreme Court has treated freedom of movement, particularly interstate travel, as a fundamental liberty, grounded in the Privileges and Immunities Clause and the Due Process Clause of the Fourteenth Amendment.
Because travel necessarily consists of bodily movement, recognition of a right to travel presupposes protection of peaceful bodily movement to the extent required for that travel.
IP enforcement over choreography creates this contradiction:
The same bodily movements that constitute protected travel (walking, turning, gesturing) become restricted when performed in “copyrighted” sequences.
The state simultaneously protects bodily movement (travel) and restricts it (choreography).
This is not a minor inconsistency. It is a fundamental contradiction in the legal framework.
Why enforcement requires social compliance
This constitutional contradiction doesn’t exist in theory alone.
The state can’t police every bodily movement. Courts can’t adjudicate every similar gesture. Enforcement at scale is impossible through legal mechanisms alone.
The system needs platforms, instructors, performers, and audiences to enforce IP claims without constant legal intervention.
This is how you create flying monkeys. Give people roles where their identity and livelihood depend on enforcing the privilege, then let structural incentives do the rest.
How the roles emerge
Platform moderators don’t enforce IP claims because lawyers force them. They enforce because their role depends on “protecting creators.”
Their identity: “I’m a responsible platform manager who prevents violations.”
The threat: If violations occur on my watch, I lose my position or face liability.
No one needs to tell them to enforce. The role structure creates the behavior.
Dance instructors don’t warn students from personal conviction about respecting choreographers. They warn because their credential depends on “respecting the craft.”
Their identity: “I’m a professional who honors the art form.”
The threat: If I teach “stolen” moves, my reputation suffers and students question my legitimacy.
The role produces the enforcement without external pressure.
Performers don’t avoid similar movements out of moral principle. They face pressure from audiences, platforms, and peers that makes certain movements costly.
When a performer uses choreography similar to copyrighted work, they encounter:
- Platform removal
- Audience accusations (”that’s stolen from X”)
- Professional consequences from industry gatekeepers
- Loss of opportunities
The social pressure reinforces legal threat. Both work together. Legal action represents the severe end of the enforcement spectrum, narcissistic rage at visible boundary violations. But most compliance comes through social pressure long before lawsuits appear.
The structural mechanism
These aren’t individual moral failures or conscious conspiracies.
Platform moderators enforcing IP aren’t personally offended by similar choreography. Their role creates identity dependency on “protecting creators.”
Dance instructors warning students aren’t naturally protective of famous choreographers. Their credential depends on being seen as “respecting the craft.”
Performers avoiding certain movements aren’t making free choices. They’re responding to structural pressure that makes alternatives costly.
When identity depends on enforcement, no central coordinator is needed. Self-policing emerges from role structure.
This is the flying monkey mechanism. Individuals enforce privileges not from personal conviction but because their assigned role makes enforcement serve their interests.
The incentives align without coordination:
Platforms: Avoid liability, maintain advertiser relationships
Instructors: Maintain credentials, preserve professional status
Performers: Keep opportunities, avoid social consequences
Audiences: Signal sophistication, enforce norms
Each actor pursuing individual interest produces coordinated enforcement.
This is how privilege becomes self-sustaining.
The familiar patterns appear
Once roles are established and incentives aligned, familiar manipulation tactics maintain the system:
Gaslighting: “No one is stopping you from moving. You’re free to create your own choreography.”
The reality: Entire vocabularies of movement become restricted. But questioning this brings accusations of misunderstanding creativity.
Manufactured dependency: “Creators need this protection or they can’t make a living.”
The reality: Choreographers developed work for millennia without state-granted monopolies. But the claim creates belief that artistic production requires IP enforcement.
DARVO (Deny, Attack, Reverse Victim and Offender): “You’re stealing from artists. They’re the real victims here.”
The reality: The state restricts peaceful bodily movement through monopoly privilege. But the framing reverses who is constraining whom.
Triangulation: Platforms, instructors, performers, and audiences are positioned against each other. “If you violate IP, you’re hurting creators. If you enforce IP, you’re restricting dancers. Everyone else respects these boundaries.”
The reality: The state created the conflict through monopoly claims. But citizens are set against each other enforcing it.
Narcissistic rage: When someone ignores the permission structure, response intensity is disproportionate.
Not because the violation causes actual harm (no property was taken, no contract violated, no aggression occurred).
But because the refusal threatens the entire system of claims.
If one performer can move freely without permission, the privilege structure itself is questioned. The state-granted monopoly loses legitimacy.
Response must be severe enough to deter others. Lawsuits far exceeding any actual damages. Professional destruction for similar movements. Public shaming campaigns.
This is narcissistic rage: disproportionate enforcement maintaining role stability.
What this demonstrates
The state converts liberty into permission through monopoly privilege.
Law normalizes the conversion.
Roles emerge with identity dependent on enforcement. Flying monkeys appear not through coercion but through structural incentives that make enforcement serve individual interests.
Incentives align to produce coordinated behavior without central direction.
Social pressure handles most compliance. Legal action escalates when social pressure fails.
Resistance triggers consequences ranging from shaming to lawsuits, all maintaining role stability.
Once movement requires permission, speech follows the same pattern. Then association. The mechanism scales because the structure is consistent.
The mechanism
Privilege is granted by the state.
Law normalizes the privilege as “protection.”
Roles emerge with identity dependent on enforcement.
Incentives align to produce coordinated behavior.
Flying monkeys enforce through social pressure.
Legal action escalates when social enforcement fails.
Resistance meets consequences maintaining role stability.
The mechanism is structural. No conspiracy required. Just individuals following the logic of their assigned roles in a system built on state-granted privilege.
That’s how you create a flying monkey. Give someone a role where enforcement serves their interests, and they’ll do the work themselves.
Method note: this essay applies the framework developed in the book; analytical scope is defined in the Methodological Appendix.
- See Hoppe on Property Rights in Physical Integrity vs Value and Aggression and Property Rights Plank in the Libertarian Party Platform. [↩]
- See The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression and Fraud, Restitution, and Retaliation: The Libertarian Approach. [↩]
- See again, Rothbard and Block, ch. 7; also see Hoppe on Property Rights in Physical Integrity vs Value and Aggression and Property Rights Plank in the Libertarian Party Platform. [↩]
This was a truly weird and disappointing take by Hornberger.