As I point out in Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property, n.59, Ken Schoolland seems to be fairly solid on IP law. See ch. 31 of his The Adventures of Jonathan Gullible: A Free-Market Odyssey. He is also good on defamation law, which is also fairly rare, as I note in Defamation as a Type of Intellectual Property; see his “Exercising the Mind: An open marketplace of ideas is the best mechanism for reaching the truth,” Honolulu Star-Bulletin (Nov. 3, 2002). He had sent me a copy of the same article a few years back but under the title “Sticks and Stones: A critique of libel and slander laws.” I had been unable to find the published version but recently did, buried here. So I post it here, but under the title of the version he sent me, which is a better title anyway.
When he writes “Expecting to be protected by the law many people say, ‘If it wasn’t true, then surely someone would have sued,'” he is recognizing that defamation law, perversely and ironically, has the effect of amplifying the power of defamation and lies, as I noted in my post Defamation as a Type of Intellectual Property—as does Alan Burris, whom he cites, but unlike me and Schoolland, Burris mangles the IP issue, while getting the defamation issue wrong.
Sticks and Stones: A Critique of Libel and Llander Laws
Dec. 4, 2002
Originally published as “Exercising the Mind: An open marketplace of ideas is the best mechanism for reaching the truth,” Honolulu Star-Bulletin (Nov. 3, 2002)
“Sticks and stones may break my bones, but words will never hurt me.” So goes the saying of children who are so much wiser than their elders. But as young people grow up they learn that there are laws at their command that can be used to bring “sticks and stones” down upon people who say bad things about them.
To most grownups, a reputation is generally thought to be a piece of property — something that they own. You “have” a reputation and I “have” a reputation. But is a reputation really personal property or is it merely the thoughts that others have about us? If it is merely the thoughts that others have, then how can we have a property claim on what others think?
Laws that presume to protect reputations are libel and slander laws.
In order to understand the nature of these laws it is helpful to realize that they are rooted in an era when kings and nobles used the state apparatus to punish people who said things that were unflattering about them.
From time to time, kings and nobles have drawn upon great power to prosecute some poor souls who dared to call them murderers and thieves instead of God’s chosen elite who were destined to rule by divine right and heredity.
Just as common were provisions of the law that gave rulers sovereign immunity from anything that they would say about the reputation of peasants. As a vestige of this immunity, government officials in many lands are shielded from libel and slander laws when discharging official duties.
Is the purpose of libel law really to assure citizens of the truth of public statements? If the establishment of truth was really the purpose of such laws, then it would be logical that some injured party should be able to sue whether a false statement either damaged or enhanced a reputation unjustly.
It is commonly accepted that the reputation of a hero is damaged if someone calls him or her a thief. But certainly the public is harmed just as much, if not more so, when a thief is called a hero. But suing for false praise is usually not allowed. Indeed, false praise seems essential to contemporary politics.
Which reputations are protected by the law? Naturally, the law has been the handmaiden of those with the wealth necessary to engage the legal system most effectively.
Wealth figures into the calculation of what a reputation is worth and, simultaneously, how much “damage” has been sustained. Presumably everyone has a reputation but it is of no great legal value unless one can show that libelous remarks have caused great, measurable diminution to income and wealth.
Also, the more mental anguish someone suffers, the more they might seek in damages. Stalwart individuals with great confidence and self esteem, who do not care what others think of them, have little to gain in the courts. Instead, it is the frail and insecure personalities, known to children as “crybabies,” who will be able to claim the most in emotional damage.
Some people believe that politicians, acting through government, can be the guarantors of truth. This is truly ironic, since surveys typically rank politicians among the least trusted of professions.
Believing that government is a guarantor of truth is really part of the problem. To the extent that people suffer the illusion that they are being protected by government, they will not exercise their own protective judgement. If one is to weigh the costs and benefits of libel law, it is this reason alone which leads me to the conclusion that more damage is done by the law than is prevented by the law.
Expecting to be protected by the law many people say, “If it wasn’t true, then surely someone would have sued.” And others are intimidated by the fear of potential lawsuits. This fear has a chilling effect, as in Singapore, where critics are silenced and the public is left with an absence of genuine debate.
Defenders of libel law can usually win a very sympathetic audience because they claim that the law ultimately protects innocent people from scurrilous attacks on their reputations.
In this instance, a bit of wisdom might be borrowed from that notorious semanticist, Lenny Bruce. It was his contention that words are only dangerous when their use is forbidden.
Today there are many accusations that people might find objectionable, but it seems that the impact of these accusations is lessened when people become accustomed to hearing words that were once forbidden. If a slanderous charge is rarely heard, then its impact can be great. But if it is heard all the time, then people learn to shrug it off, to disregard it, or to devise means of verification.
Years ago, when few people talked openly about homosexuality, it was then considered by some to be extremely harmful to a reputation to be called a homosexual. But now that homosexuality is spoken of more freely, the truth or falsity of such an “accusation” is insignificant.
Today it might be shrugged off or it might even enhance one’s status. Even congressmen and ministers can be called “gay” and their careers are no longer in jeopardy.
Accusers typically reveal more about their own character than about the accused. That’s why negative political campaigns so often backfire.
An open marketplace for words is the best protection against the power that unscrupulous people can wield with words. It isn’t the words that ruin people, rather it is the reaction that gullible people have to words that can harm the innocent.
The government has long tried to monopolize the business of reputation investigation and insurance. As with all government intrusions into the market, the government is inefficient, the tool of influential special interests, and vulnerable to perverse, unintended consequences.
If the government had absolute control and prohibited all news except that which was officially authorized, as in North Korea or Cuba today, then we would have a source of information devoid of any credibility.
In the marketplace of ideas, we are free to choose the sources of information that have earned our trust. It is the competition for our confidence that rewards truth in the marketplace.
What is at stake is not really words and reputations. At stake is the power over thought. Those who are seeking truth cannot expect to get it with politics, laws, arrests, fines and jails. It can only be discovered by exercising the mind.
Ken Schoolland is an associate professor of economics at Hawaii Pacific University.
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