Jacob Hornberger on Defamation and Alex Jones
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.
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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.
This was a truly weird and disappointing take by Hornberger.
Late reply, but YES, thank you for calling out Jacob Hornberger on this.
I was shockingly surprised and disappointed at his take; was he fearing retribution or slander himself? Hornberger is oftentimes a reliable writer, although his writings can be a bit ambiguous. I am a big fan of many of his writings, but on this one, Hornberger's view is just off-base. He is plain wrong.
Libel and slander are not acts of fraud. Hornberger's argument in support of such laws is weak and uninformed. Nobody has the right to a good reputation; your reputation is what others think of you. If libel and slander are truly acts of fraud, then I guess that the mainstream media should be shut down because of all the BS they spread.
Alex Jones did not deserve to be sued for the Sandy Hook comments. Even if Alex Jones were indeed wrong (and I believe Alex Jones is completely right), this does not give the victims' parents (whom are all actors) the right to sue.
Harassment is a legitimate crime. They can sue or report those who harass them. But Alex Jones never committed any act of harm towards the victims' families, who are just actors. He never harmed them.
I was also disappointed to learn that Hornberger stands by the official story of Sandy Hook. He does not understand that it was all fake; he never gave any evidence to defend the official story. If YouTube, Big Tech, mainstream media, and others censor Sandy Hook questioners, this only makes me question the official story even more.