EconLog Book Club: For a New Liberty, Chapter 6
By Bryan Caplan
In this chapter on “Personal Liberty,” Rothbard puts run-of-the-mill “civil libertarians” to shame. He’s more radical than most of the left on traditional civil liberties like freedom of speech, drugs, and wiretapping. He stands up for the rights to libel and slander; he defends full-blown drug legalization, not a switch from “punishment” to “treatment”; and he argues that wiretapping the innocent is criminal, whether or not you’ve got a warrant.
At the same time, Rothbard insists that many “right-wing” causes are neglected civil liberties issues. How can there be freedom of speech when the government licenses the airwaves? If people have a right to advocate the most heinous positions, why can’t tobacco companies advertise on television? And if it’s wrong to persecute a whole category of people because it has an above-average fraction of bad apples (“profiling” in current parlance), what’s the deal with gun control? Yes, criminals often use guns; but how does that justify the persecution of the vast majority of gun owners who aren’t criminals?
1. I agree with Rothbard’s critique of libel and slander law. The Western world condemns Singapore for using defamation law to silence dissent; but once you buy the principle of banning false, damaging statements, how is Singapore in the wrong?
Furthermore, if deception should be illegal, why not self-deception? In other words, if it is legal for me to irrationally decide that you’re a cheat, why isn’t it legal for me to share my irrational accusations with others? In both cases, you’re losing customers because people have false beliefs about your character.
Here’s my favorite reductio on libel and slander. The last time I checked, the typical Randian accepted the law of defamation. He also accepted aesthetic objectivism: “Atlas Shrugged is a great book,” is literally true. Doesn’t it follow, then, that it should be illegal for a reviewer to deny that AS is a great book? He’s making a false, damaging statement, right?
Let me add that in the Google age, Rothbard’s case against libel and slander is stronger than ever. False claims abound on the Internet. If believed, many would be very damaging. But most Internet users have the common sense to ignore unsubstantiated accusations, so in practice they do little harm.
2. If you really think about it, here’s the most critical paragraph in the entire book:
[I]f A is a boss in a criminal enterprise, and, as part of the crime, orders his henchmen: “You and him go and rob such and such a bank,” then of course A, according to the law of accessories, becomes a participant or even leader in the criminal enterprise itself.
Why is it so important? Recall that Rothbard’s whole theory is that the State is a criminal gang. So if giving orders to commit serious crimes were not itself a serious crime, he’d have to exonerate the vast majority of political leaders who never personally commit invasive acts! In other words, the law of accessories is not a footnote to libertarian theory; it is the entire basis on which government leaders are considered mass murderers – as opposed to bystanders exercising their freedom of speech.
Once you accept the law of accessories though (and it’s absurd not to), Rothbard’s objections to charges of “incitement” and “conspiracy” make little sense. Here’s what he says:
In our view, “incitement” can only be considered a crime if we deny every man’s freedom of will and of choice, and assume that if A tells B and C: “You and him go ahead and riot!” that somehow B and C are then helplessly determined to proceed and commit the wrongful act. But the libertarian, who believes in freedom of the will, must insist that while it might be immoral or unfortunate for A to advocate a riot, that this is strictly in the realm of advocacy and should not be subject to legal penalty.
If we bought this argument, then Hitler would not be the architect of the Holocaust, but merely its cheerleader. After all, what did he do other than tell some people, “You and him go ahead and commit mass murder”? What’s the difference between “telling” and “ordering” anyway? Fortunately, it’s easy to make this contradiction go away: Rothbard should just admit that whoever “incites a riot” is an accessory to the riot, just as the Godfather who orders a murder is an accessory to murder.
3. My favorite passage from this chapter:
This is not to argue, of course, for prohibition of alcohol; once again, to outlaw something which might lead to crime is an illegitimate and invasive assault on the rights of person and property, an assault which, again, would far more justify the immediate incarceration of all teenage males. Only the overt commission of a crime should be illegal, and the way to combat crimes committed under the influence of alcohol is to be more diligent about the crimes themselves, not to outlaw the alcohol.
This sounds like a left-wing argument; but as Rothbard notes, it also undermines left-wing crusades against guns, porn, etc. If you have troubling grasping the appeal of libertarianism, this paragraph should be a big help. Libertarians are unusually likely to take arguments literally, and see what they actually imply, instead of just rationalizing the prejudices of their ideological sub-culture.
P.S. For a more thoughtful philosophical critique of gun control, see Michael Huemer’s “Is There a Right to Own a Gun?”