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.

1. See Hoppe on Property Rights in Physical Integrity vs Value and Aggression and Property Rights Plank in the Libertarian Party Platform.

2. See The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression and Fraud, Restitution, and Retaliation: The Libertarian Approach.

3. 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.