Centuries ago, those who believed themselves to be harmed by “slanderous” words may have had to take matters into their own hands, perhaps through dueling, or even through just a drunken fist fight with one’s accuser down at the local tavern. Sometimes, these confrontations led to either intentional or accidental death.
Over time, however, courts were tasked with addressing harms allegedly done through this sort of defamation.
Crime historian Randolph Roth notes how matters changed in this regard from the seventeenth century to the eighteen century. Roth recounts how Alexander Stuart, a wealthy Virginia planter, concluded he had been defamed when laborer John Thompson and Thomas Paxton (another wealthy planter) spread a story in which it was alleged that Stuart had engaged in sexual acts with a “negro wench.” Stuart sued Thompson and Paxton for slander, but:
In the mid-seventeenth century a gentleman like Stuart would have horsewhipped Thompson and challenged Paxton, who was his peer, to a duel. In the eighteenth century, the desire for revenge was more often satisfied in court, even though half of all slander suits… were settled or dropped before trial, and those that ended in guilty verdicts usually resulted in small damage awards. Most suits were intended merely to demonstrate that the plaintiff was a man who would stand up for his rights. They were not meant to bankrupt the defendant.”
Guilt and Damages Are Very Difficult to Prove
Roth does not say how Stuart’s case turned out. But from a moral point of view, it would seem that it we must consider a variety of factors before any pronouncements about guilt or damages can be made. This has also become increasingly important as legal penalties for defamation have increased since the seventeenth century:
- Were the events in the story told by Paxton and Thompson true?
- Did Paxton and Thompson believe the story to be true?
- Did Stuart actually suffer harm?
- Did Paxton and Thompson intend to do harm to Thompson?
When it comes to establishing these facts, things are much easier said than done.
Is It True?
It may be relatively easy to determine whether or not Stuart actually did what Paxton and Thompson said he did. But were Paxton and Thompson merely repeating what they believed to be facts? If so, that would suggest less malice in what they did. Or none at all.
Moreover, if Stuart did what was related in Paxton’s and Thompson’s stories, does he really have a “right” to be immune from the effects of things he actually did?
Some might say Stuart has a right to privacy, but as Murray Rothbard asks: “How can there be a right to prevent Smith by force from disseminating knowledge which he possess? Sure there can be no such right.”
In other words if Stuart is seeking a legal judgment against Paxton and Thompson — and if Paxton and Thompson believed the story to be true — what Stuart’s really saying is that it is good for the state to use violence against people who simply relate facts.
Was There Really Harm?
A second important factor is determining if Stuart really suffered harm as a result of Paxton’s and Thompson’s actions.
Again, this is easier said than done.
To show that he has been significantly harmed, Stuart ought to have to show:
1. People believed the stories related by Paxton and Thompson.
2. People cared enough to act on the new information.
3. These actions brought real and significant harm to Stuart.
All too often, those who support government sanctions against alleged slanderers and libelers assume that people merely believe everything they are told, form a negative judgment against the alleged victim, and then act out against that victim.
This, of course, is not at all necessarily the case. For example, even after years of being dogged by accusations of being a child molester, Michael Jackson’s performances were still very much in demand. At the time of his death, he was about to pocket at least 60 million dollars for shows planned in London. Jackson’s album sales were also increasing at the time. Did some people refuse to purchase Jackson’s products and services because of the allegation? Possibly. Or it may have been that the allegations were readily believed by those who already didn’t like him — while his fans refused to believe the allegations. Moreover, the allegations might have meant some fan might have supported Jackson even more in a show of solidarity.
More recently, Johnny Depp has sued his ex-wife for $50 million dollars for defamation. His ex-wife claims he abused her. Could Depp prove she has hurt his income? To be sure, it may not be difficult to show that his income has suffered in recent years. Depp has starred in a string of box office mediocrities and bombs in recent years, including The Lone Ranger which lost $190 million dollars for Disney. But that all happened before his ex-wife allegations came out.
So, if Depp is now claiming he has long income as a result of his ex-wife comments, how do we know that his drop in income was not really due to his lack of success at the box office?
Is It Defamatory to Call Someone a Homosexual?
One especially damaging and questionable concept within defamation law is the concept of “defamation per se.” In these cases, the alleged victim does not even need to demonstrate harm. The defamatory comments are simply assumed to have caused harm.
Yet, the assumptions behind defamation per se are often completely divorced from reality.
For example, in many jurisdictions in the United States, it is considered defamation per se to accuse someone of being a homosexual.
But is this really defamatory?
Legal scholars are increasingly noting that it cannot at all be assumed that an alleged victim suffers economic loss due to an accusation of homosexuality. Whether or not it is damaging depends entirely on the details of a person’s community and social environment.
Similarly, “unchastity” has long been considered a type of defamation per se. In same places and cultures, noting that a woman has been raped may have aroused revulsion directed at the rape victim. But in most modern and Western contexts, one can certainly argue that knowledge a woman has been raped is more likely to garner sympathy for the victim more than anything else. Moreover, just calling a woman a “slut” in public can hardly be assumed to lead to her social exile. There is, quite frankly, approximately zero evidence of this outside small ultra-conservative pockets in the modern West.
The arbitrariness of these declarations of defamation per se demonstrate some of the many dangerous assumptions behind defamation law.
Thus, as a bare minimum, any legal discussion of defamation must be closely tied to an alleged victim’s ability to demonstrate that real damage has resulted from supposed defamatory comments. Fortunately, in the US at least, most defamation cases are based on “libel per quod”, which, as Matthew Bunker, et al note, “requires proof of special damages—actual economic or pecuniary loss. These damages can be difficult to prove, and their absence creates a barrier to recovery.”
The First Amendment and Defamation
Bunker, et al, also conclude:
Proving defamation in United States courts has become an increasingly complicated undertaking. Along with a substratum of common law requirements, the U.S. Supreme Court has imposed a number of additional layers of First Amendment firmament, beginning with the landmark case New York Times Co. v. Sullivan. Additional requirements flowing from state constitutional free speech and press protections have also made their way into the defamation laws of individual states.
This represents something of a reversal from the trend toward the spread of legal solutions to alleged defamation, as described by Roth. While the use of the common law against defamation may have been spreading in America’s eighteenth-century British colonies, the adoption of the First Amendment at the end of that century introduced some significant barriers, which have since been strengthened.
The benefits of these barriers can be seen when US defamation law is compared to the law elsewhere.
Using Defamation Law to Silence Critics
Consider, for example, the case of Rachel Ehrenfeld. NPR reports:
In 2003, she [Ehrenfeld] wrote a book called Funding Evil: How Terrorism is Financed, and How to Stop It. The book accused a wealthy Saudi businessman of funding al-Qaida. The businessman, Khalid bin Mahfouz, sued Ehrenfeld in a British court.
Although Ehrenfeld is an American writing in the US, bin Mahfouz sued her in British court because British legal requirements for defamation are more lax. Consequently:
“Crooks and brigands from around the world come [to the UK] launder their reputations, where they couldn’t get exculpation in either their home country or indeed in the United States of America,” says Mark Stephens, a London lawyer who often represents media companies in these cases. … In American courts, the burden of proof rests with the person who brings a claim of libel. In British courts, the author or journalist has the burden of proof, and typically loses. “So you’ve got the rich and powerful shutting down and chilling speech which is critical of them,” says Stephens.
Not surprisingly, Ehrenfeld lost in court, and prior to 2010, an American court might have enforced the British court’s $250,000 fine against her. But thanks to the “Speech Act” passed by Congress that year, US courts are now instructed to not enforce international defamation rulings unless they conform to US standards under the First Amendment.
In other words, the lackadaisical defamation standards employed by much of the world no longer have standing in the US.
Not surprisingly, many British jurists still think they have struck the right “balance” between the interests of the allegedly defamed and those who are accused of defamation.
But they’re wrong.
The correct balance is to be lopsidedly in favor of those accused of defamation.
After all, the bin Mahfouz case illustrated just how prone to abuse defamation cases can be when involving wealthy and powerful people. Few ordinary people can afford to defend themselves against billionaires like bin Mahfouz, or even foreign regimes who are known to sue their critics in various courts.
The result is a situation in which the powerless are less likely to criticize the powerful. Murray Rothbard notes:
[T]he current system [which allows for defamation suits] discriminates against poorer people in another way; for their own speech is restricted, since they are less likely to disseminate true but derogatory knowledge about the wealthy for fear of having costly libel suits filed against them.
Other Dangers Loom on the Horizon
It is possible to conceive of future cases in which defamation law could be used to enforce modern notions of political correctness.
For example, accusing another person of mental illness is often considered to be a type of defamation per se. So, what happens when a person states that transgender people suffer from a type of mental illness? Potentially, those who express this opinion could be sued for defamation in court by those who claim they were harmed by being cast as mentally ill.
Indeed, in Italy, a physician became embroiled in defamation lawsuit when she stated that homosexuality is “a disease.” She was eventually exonerated of defamation, but only after a long legal battle.
Fortunately, respect for freedom of speech makes this less likely in the US. But it’s not unthinkable.
The Answer: Combat Speech with More Speech
None of this is to say that ordinary people cannot suffer true loss as a result of defamatory information being released. But the cost of defamation laws are also significant in terms of both abuse the powerful, and also in cases where people merely said things they thought to be true without any malicious intent or even negligence.
The answer, however, is suggested by Rothbard, who notes that in a system of unrestricted free speech, “everyone would know that false stories are legal, there would be far more skepticism on the part of the reading or listening public, who would insist on far more proof and believe fewer derogatory stories than they do now.”
This, of course, is already the reality for people of ordinary means. In an age of social media especially, where anyone can be publicly accused of heinous acts at any time, the non-wealthy must trust to the public’s skepticism as a defense against potentially costly and defamatory statements.1 After all, if we live in a society where people automatically believe anyone who accuses a third party of being a rapist, then our society has problems far beyond insufficiently robust defamation laws.
- 1. Fortunately, some evidence suggests that the young are less credulous than the old — probably as a result of the free-for-all that is the internet.
Ryan McMaken (@ryanmcmaken) is a senior editor at the Mises Institute. Send him your article submissions for Mises Wire and The Austrian, but read article guidelines first. Ryan has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
THIS ARTICLE ORIGINALLY POSTED HERE.