Last week, I was chatting with my friend Santiago about the validity of defamation laws. Just to get everyone on the same page, Wikipedia summarizes defamation as follows:
Defamation — also called calumny, vilification, traducement, slander (for transitory statements), and libel (for written, broadcast, or otherwise published words) — is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, religion, or nation a negative or inferior image.
I’m particularly interested in this topic because I have a question on it in the Philosophy in Action Queue that I’d like to answer sooner rather than later. Here’s my current thinking on the matter, and I’d be interested in people’s thoughts in response.
I can understand that a person might be deeply distraught to be harassed by people telling bald-faced lies about him, particularly when that costs him well-earned business. I can understand the desire to recover damages for those losses. However, even if a person should be able to do that, I’m doubtful that defamation should be a legally actionable tort in a free society. Why?
First, defamation laws are too often used as a weapon to silence criticism — meaning, to violate free speech rights. If a person dislikes the criticisms of others — even if those criticisms are completely justified by the facts — he can can sue (or threaten to sue) others into silence. Alas, I have personal experience with such abuses. The cost in time, money, and anxiety of defending yourself against a false claim of defamation is ginormous.
The fact that defamation lawsuits — or the threat thereof — silence speech important for living life should be deeply troubling. People should be free to speak out about their experiences with incompetent doctors, shady contractors, dishonest businesses, and the like without fear of legal reprisals. Such speech is critical to living life well, yet under defamation laws, people engage in such speech at their peril.
Second, if a person unjustly attacks your reputation, defending yourself is almost always pretty easy. You simply have to say that the person is mistaken or lying, then state the facts. (Many staunch defenders of defamation laws are unwilling to do that, I’ve found: they see themselves as above any such explanations to the unwashed masses.) You can also ask forums hosting the defamatory speech to remove it or not permit more of it. Sure, some people will believe the lies, but most people worth knowing or dealing with will not just swallow them. Reasonable people will listen to you. I know that from far too much personal experience too.
Third, notwithstanding those practical conerns, the critical question about the validity of defamation laws concerns the nature and scope of rights. To wit: Does a person have a right to a factually accurate reputation?
A person’s reputation is the sum of the judgments that others make of him: it’s “the beliefs or opinions that are generally held about someone or something.” As such, a person cannot be entitled to a certain reputation by right. A person can influence his reputation by his words and deeds, but it’s not his property because ultimately, a person’s reputation consists of judgments in the minds of others. It’s their property, in fact.
Certainly, some people believe ridiculous claims about me — yet they’re not violating my rights in doing so. They’re just jerks or chumps, but hey, that’s their right. I don’t have a right to anyone’s good opinion, even if that’s what I deserve morally. People are entitled to believe whatever they damn well please — and, I think, to say pretty much whatever they damn well please too. Yes, that speech might do me damage, but so does the speech of pastors and politicians.
Ultimately, I don’t see any basis for claims of a right to reputation. Hence, at least right now, I don’t see that defamation laws can be justified.