Libel Laws Should All be Repealed
Libel law is back in the news what with some public rethinking (more like wailing and gnashing of teeth) about New York Times v. Sullivan. Should public figures be more or less protected from being libeled is one issue that has arisen. Another is exactly who is and who is not a public figure? Then there is the question of whether or not “actual malice” should be a requirement for libel. And where does the First Amendment fit in to all of this? Justice Clarence Thomas and Senior Judge Laurence Silberman are thinking out loud about restructuring Sullivan.
These questions do not go deep enough. Instead of seeking “balance,” and fine-tuning this legal precedent, we should dig deeper. Of more basic moment is the question of whether libelous speech ought to be unlawful in the first place.
At the outset, this seems like a silly question. Slander ruins people’s reputations. The victims of this practice can lose their jobs, friends, marriages, the respect of the general community. Surely, there should be at least some protection for them? Yes, but not a legal one.
Why not a course of action in court? Is not libel akin to theft? Only in this case, what is being stolen is more important than ordinary goods like shoes or coats, or even automobiles or boats in many cases.
We are accustomed to referring to people’s reputations as if they were owned. My reputation, your reputation, Jim’s reputation. This is more than a little bit misleading in that people don’t actually possess the reputations that refer to themselves.
Rather, Jim’s reputation consists of the thoughts (and predilections to act in certain ways) of other people, not of what he thinks about himself. His reputation, paradoxically, consists solely and of nothing but the thoughts about him on the part of his neighbors, family members, bosses, fellow workers, sports team members, bowling league colleagues, etc. Since he cannot own these possessions of other people, their thoughts about him, he cannot, somewhat surprisingly, own his own reputation. Thus, libel laws of whatever variety, type or degree, are unjust; they protect people from losing what isn’t really theirs in the first place.
Here is a paradox. Reputations would actually be safer, in most cases, without laws against slander and libel. For nowadays if a reputation is besmirched, especially by the mainstream media which reaches millions, people are likely to believe the smear, at least partially. “Where there’s smoke there must be at least a little fire,” might be the common reaction. These attacks occur relatively infrequently, and thus also tend to stand out. But without such legislation, the slurs and insults would come thick and fast. There would be so many, they would lose their relative power to reduce people’s standing in the community. No longer would mere allegations suffice. Now some sort of proof or evidence would be required before one’s character would suffer.
So let us not fine tune around the edges of libel law, making marginal changes and adjustments as to who is and is not a “public figure.” Don’t we all have the same identical rights, no matter how public our persona? Instead, let us repeal this spate of legislation root and branch, and overturn judicial findings supporting this mischievous unjustified legal tradition.
Walter E. Block is Harold E. Wirth Eminent Scholar Endowed Chair and Professor of Economics at Loyola University New Orleans