Defamation Laws and the Mythical “Right to Freedom of Speech”

Despite loose talk to the contrary, there is no moral “right of free speech”. It is only when one sets up a “right” of “free speech” that one then has to somehow explain how defamation laws – which involve making a liar pay damages to a person about whom he has told a lie – are not a violation of the “right of free speech”. Typically, the explanation ends up involving another made-up “right” that must be “balanced” against the “right” of “free speech”, or that somehow constitutes a exception to the “right of free speech”. The result of such explanations, inevitably, is that someone asserts that the “right” of “free speech” is “not absolute”. This devolves further into a greater, and more harmful generalization: that “rights are not absolute”. The end game is something akin to s. 1 of Canada’s Charter of Rights and Freedoms, which states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society“. In other words, one ends up with constitutional laws that say you have rights, but that they’re not absolute. More succinctly: that you have no rights at all.

It therefore comes to me as a disappointment that none other than the Director of Legal Studies at the Ayn Rand Institute, Steve Simpson (who is usually a great advocate of Ayn Rand’s philosophy, Objectivism) has defended defamation laws by asserting that one has a “right” to the value of one’s own reputation:

“But yeah, libel laws in my view are proper. It’s a big, complicated topic. The way I think about it is: You have a right to the value that you have created in your own reputation — or if you think about it from the standpoint of a company, in your brand. Now it’s, again, it’s a complicated issue. But you can take an example of what happened to Johnson & Johnson in the 1980s when somebody poisoned Tylenol. And think about the damage that was done to Johnson & Johnson — it took them years to regain their reputation. Imagine if somebody now said, you know, across the Internet, “I’ve poisoned Tylenol.” Imagine how quickly the stock would plummet, nobody would buy it anymore. There’s real damage there. So, the ultimate issue is if you lie in a way that damages a value that somebody else has created — in this case its reputation, you can think of it almost as an intellectual property right — you can be sued for that. But we have to set the right legal standards for it.” (Objectivist Summer Conference 2017 in Pittsburgh, Pennsylvania, on Tuesday, June 13, 2017).

The problem is not setting “the right legal standards for” the value of your reputation. The problem is that there is no moral, political, or legal “right” to the value of one’s own reputation. That made-up “right” is not a defence to the propriety of defamation laws.

The Myth of the Right of Free Speech

Rights are absolute by their very nature. A “right of free speech”, if it existed, would grant one immunity from anything one said. One could tell any number of people any lie one cared to tell, and one could face no penalty as a result. One could hand a lethal pill to someone and tell them it was harmless and should be eaten. One could, without consequence, impersonate Brad Pitt in order to get a woman to agree to have sex with one. One could falsely swear to a lender that one is worth $1M in order to get a $10 loan, and not be charged with fraud.

Like a gun, speech is just a tool. There is no moral “right of free gun” that gives you the right to use a gun to take a person’s life, liberty, or property his/her consent. Likewise, there is no “right of free speech” that gives you the right to lie about someone in an effort ultimately to take that person’s life, liberty, or property his/her consent.

The Nature of Defamation

Your highest moral purpose is the achievement of your own happiness. You can achieve that happiness only by making and acting upon the decisions that result in you earning the the material and spiritual things upon which your survival and happiness depends; things like money, love, admiration etc. Freedom is control over your own decisions and actions; over the use and disposition of your own life, liberty, and property. You need to be free if you are to survive and achieve your own happiness.

When a person deliberately misrepresents to you the facts of reality, for the deliberate purpose of getting you to exercise your decision-making power in his interest instead of in your own, he is taking from you the values that you would have obtained had you not been tricked into making decisions that serve him instead of you; values upon which your survival/happiness depends. When a liar (let’s call him “X”) tells you a lie about another person (let’s call him “A”), it is even worse. He takes values from two people: you and A. How? By causing you to exercise your decision-making power in the liar’s interests instead of in your own interest, he causes you to sacrifice the value you would have obtained by interacting (i.e., trading) with A, and he causes the sacrifice of the value that A would have obtained by trading with you. By “trading”, I’m not referring merely to trading money for goods or services. There are other trades, such as the mutual expression of admiration or praise between two people, or the public recognition by a country of a soldier’s defence of freedom.

The law of defamation developed from situations in which the liar told not just one person, but many people, a lie about A. Of particular concern was lies told in mass-distributed newspapers. When a whole country can be turned against A, A may well be destroyed. Especially in cities – where one does not produce one’s own food and usually must trade values to survive – “destroyed” may include A being left to die from refusals to trade with A.

Justice demands that A be compensated, by X, for the value that A *would have* obtained from trades with several of the people who were lied to by X. That value – be it material (e.g., money) or spiritual (e.g., love) – essentially is being taken from A, by X, without A’s consent. At the same time, everyone’s freedom to make decisions in their own self-interest demands that a court of law set the record straight about the facts of reality concerning A, and publicly condemn X as the liar he is.

Defamation Laws and the Myth of the Right to the Value of One’s Reputation

The value of a person’s reputation is not what is at issue in a defamation action. If Bloggs really does have a sexually-transmitted disease that nobody but you knows about, and you announce live on national television that Bloggs has that sexually transmitted disease, the value of Blogg’s reputation will certainly plummet, but you have not defamed him. Truth is a defence in a defamation action precisely because: nobody has a “right to the value of his reputation” per se.

Similarly, if you tell a falsehood about someone, but they cannot prove that your lie caused them to suffer an economic loss, the court will not make you compensate the person for the economic loss he suffered. For example, you may have lied that A’s pills are poisonous, but A might also have told his entire pill market that he wishes they were dead. In such a case, when people stop buying A’s pills, the court will not necessarily find your lie to be the cause of A’s failure to sell pills. If the court finds that A lost pill profits entirely because he told his entire pill market that he wishes they were dead, the court will not require you to compensate A for his lost pill profits, even though you lied about his pills. If A proves that your lie is what caused him to suffer lost pill profits, the court will require you to compensate A for his lost pill profits, even though A has utterly destroyed his own reputation for wanting to keep people alive. The court is not seeking to compensate A for alleged losses to the value of his reputation. It is seeking to compensate him for lost profits attributable to someone’s lie about A or his pills. Again, nobody has a “right to the value of” his reputation, per se.

There certainly are cases where X has lied about A and, as a result of being shunned by those who heard and believed X’s lie, A has suffered mental distress or illness. In such cases, the court may require X to pay money to A to compensate him for the suffering, but not to compensate A for an alleged loss of the value of his reputation, per se.

Likewise, there are certainly cases where the court will make X pay “punitive and exemplary” damages to A. Such payments are not compensation to A for a loss suffered by A. They are punishments of X that serve the purpose of warning the public that they too might be punished if they lie like X did about A. Such damages are ordered to be paid in defence of the freedom of every individual to make and act upon decisions that are consistent with the pursuit of one’s own happiness.

Rights, Speech, and Defamation: A Proper Defence

Defamation laws are not a violation of a mythical “free speech” right. Rather, they are a defence of your freedom, which is necessary for your survival and for the resultant achievement of your own happiness.

The law of defamation cannot be a limit on a moral “the right of free speech” because there is no moral “right of free speech”. There are only three moral rights, and the first necessitates the latter two: the right not to have one’s life taken without one’s consent and, as a consequence, the right not to have one’s liberty or property taken without one’s consent. One is not free to use speech as a means of taking another person’s life, liberty, or property without his consent.

So, what is to be made of this supposed “right of free speech”? It is nothing more than loose short-hand that says the following: “Nothing I say – other than what I say to take another person’s life, liberty, or property from him without his consent – makes it right for anyone to take my life, liberty, or property without my consent”. Or, more succinctly: “Nothing I say – other than what I say to limit another’s freedom – makes it right for anyone to limit my freedom”.

If you feel the urge to speak of a “right of free speech”, don’t. If someone challenges a law on the basis that it violates “the right of free speech”, do not make up additional rights to balance-against or to derogate from the mythical “right of free speech”. Do not invent a “right to the value of one’s reputation” to justify defamation laws. Just explain that all one ever has, as rights, are the rights not to have one’s own life, liberty, or property taken from one without one’s consent, and that defamation laws are one implementation of those rights in law.

{Paul McKeever is a proponent of Objectivist philosophy, and is the leader of the Freedom Party of Ontario}.