RoR: Forum

The concept of anarchy being discussed here is quite bizarre. Either multiple jurisdictions are bound by a unified code of laws (you have that now) or you have a competing government situation which will devolve into anarchy. Not to mention anarcho-capitalism requires about the same type of evasions and fallacious premises that claiming to be an atheio-christian does.
It would be bad enough to be a massive theft or murder victim, but a system that applies an automatic protection on the perpetrator by virtue of total inability of the victim to purchase justice seems monstrous. As long as you strike fast from the shadows murder is just fine. Would there be a split judiciary in this utopia? If not, you again have a single government with the added bonus of stunningly ineffective law enforcement. If you do have a split judiciary, the only possible differences between the two is in the nature and content of their laws, which means a split legislature as well. If the laws are different, conflicts are inevitable because it would be insane not to immediately hire the "competing" justice-R-us to defend you from the actions of your captors that they don't recognize as lawful. "Competing" purveyors of force only have one method of competition. After the inevitable war one organization will inevitably claw its way to the top of the pile of bodies and plant its flag, and it won't be stupid enough to allow armed competitors.

Getting back to the OP, do you think there is a component to libel that can be considered an assault, aside from the property issue discussed?
(Edited by Ryan Keith Roper on 10/21, 3:57pm)

Post 21

Wednesday, October 21, 2009 - 4:23pm

Hi Ryan, a few things I'd like to address that you said:

It would be bad enough to be a massive theft or murder victim, but a system that applies an automatic protection on the perpetrator by virtue of total inability of the victim to purchase justice seems monstrous.

1) You are assuming there would be no charitable police protection services available to those who can't afford their own. In fact it would be in your own long-term self-interests if you could afford your own protection to donate to such a charity since you wouldn't want to live in a jurisdiction that lets criminals get away. Just because a victim couldn't afford their own protection services doesn't mean someone else wouldn't want to pay on their behalf.

2) The other option to funding right protection services besides voluntary payment is forcible taxation, which is itself an injustice. It doesn't make sense to ask for justice while initiating force against your fellow citizens to attain this.

3) We already pay an exorbitant amount of taxes for these protection services, while really only a small amount of those taxes actually go to these protection services. Absent of any competition, these services are probably more expensive than what they should be. A free market would most likely provide more affordable protection services than what we have now.

Would there be a split judiciary in this utopia?

If by split judiciary you mean competing laws, then no, that's not what I'm advocating at least, and I would agree that would be the definition of anarchy, which is a non-sensical philosophy. Each court system would have to use the same set of laws within their respective jurisdiction. There could only be one legislature for a geographical area, one constitution, one system of due process, etc. But I wouldn't call this a utopia, nothing is, what I'm arguing for at least is what is moral, and which Rand had also argued for.

Getting back to the OP, do you think there is a component to libel that can be considered an assault, aside from the property issue discussed?

I think the resulting damage to your property is all that should be considered, since private property is what is necessary for someone's well being. But this is not just your own tangible property like a house or car but also your ability to produce an income as everyone is essentially their own brand name (when you submit a resume, that is basically your brand). So if the slander effects your ability to find a job, that's destruction literally to your own body since you can no longer sustain yourself by holding down a job.

Post 22

Wednesday, October 21, 2009 - 5:12pm

Johm, The quote box doesn't work with my browser so bear with me in responding. The points below are the same order as yours.

Point 1: With an untried system assumptions have to be made. Either its prudent to remove charity from the equation (as it is likely, but unpredictable in amount and duration) or we just assume someone in the future will work it out. The latter doesn't seem like a feature of a workable system. In a system where justice is subordinate to charity and money there are plenty of reasons some people would want some criminals to get away. I'm not a malevolent universe guy, but a system that seems tailor made to breed injustice seems ill advised. In the system described it is possible to get away with the most heinous crimes, not as a result of corruption or human error, but as a deliberate feature with the determining factor being money or status.

Point 2: Forcible taxation wasn't mentioned in my post. I happen to think non-compulsory taxation can be phased in to pay for legitimate government.

Point 3: Partly addressed in point 1. Also addressed in my post under the reasons competing governments would explode into an orgy of violence. Mentioning potential competition among law enforcement in a free market is a bit of concept stealing. A free market requires ethical and objective laws that are uniformly enforced to prevent use of force. A system (like competing governments) that explicitly states that crimes of force will not be punished in certain circumstances cannot maintain a free market by definition.

The judicial question. The judiciary you described (one legislature for a geographical area, one constitution, one system of due process) is what we have now. So what is being advocated is essentially one government with more corruption in enforcement than now. The reasons for that corruption are above. I am also arguing for what is moral, a system that practices intentionally selective enforcement of morality is not moral. You appealed to what Rand said. If we are both agreeing that Rand was correct in this matter, then her words regarding competing governments are authoritative.

"The use of physical force�even its retaliatory use�cannot be left at the discretion of individual citizens." - �The Nature of Government,� The Virtue of Selfishness, 108.

"Remember that forcible restraint of men is the only service a government has to offer. Ask yourself what a competition in forcible restraint would have to mean." - �The Nature of Government,� The Virtue of Selfishness, 112.

Anticipating a potential objection, I am asserting that a government that competes only in its enforcement branch and is unified in other branches falls under the heading of "competing governments"

Moving to libel, I think your premise there is valid. I'm questioning if it is valid, in some cases, to determine that libel is also direct form of assault. A physical action (spreading falsehoods) with the specific intent to cause emotional distress seems to fit the bill, if a demonstrable negative physical change occurs due to it. That is unlikely to happen to someone in good health, but one reason people say "Don't tell Grandpa that, it'll kill him." is that in some states of health you can motivate physical damage or death purely from emotional stress. In addition to the civil property issue, are cases where physical harm is determined to be an effect of a libel, is it valid to consider it to be assault as well?

Post 23

Wednesday, October 21, 2009 - 5:22pm

"Getting back to the OP, do you think there is a component to libel that can be considered an assault, aside from the property issue discussed?"

There does exist a distinction between criminal and civil libel, the second being a way to recover damages in civil court. I have not been able to find much online about criminal libel, except that it is rarely prosecuted in England, and that it is usually applied in other nations to criticisms of government officials in a way that seems hostile to the American system.

I would assume that a libel that was not a direct incitement that led to a murder could be prosecuted as a criminal libel, but I am speculating.

Post 24

Wednesday, October 21, 2009 - 6:18pm

Ryan:

Point 1: With an untried system assumptions have to be made. Either its prudent to remove charity from the equation (as it is likely, but unpredictable in amount and duration) or we just assume someone in the future will work it out. The latter doesn't seem like a feature of a workable system. In a system where justice is subordinate to charity and money there are plenty of reasons some people would want some criminals to get away. I'm not a malevolent universe guy, but a system that seems tailor made to breed injustice seems ill advised. In the system described it is possible to get away with the most heinous crimes, not as a result of corruption or human error, but as a deliberate feature with the determining factor being money or status.

I admit it is an untried system, but I don't feel an argument that it is an untried system is itself a moral or philosophical argument. Since we've never had a government funded through voluntary means, we can't say it wouldn't work. At one point in history there was no such thing as a government that respected individual rights and mankind was ruled by tyrants, and people thought you could only be ruled by a King. It's an appeal to traditionalism. Also when you say "In a system where justice is subordinate to charity and money" I'm a little confused here at the objection, I will agree it is not funded currently through charity but is funded with money. So I'm not sure I understand what's wrong with funding these services with money. Also if you could demonstrate why this system I propose would be tailor made to breed injustice since I don't understand why that would have to be the case. In fact it would be in a rational person's interests to promote a charitable police force since unchecked crime easily spills into neighboring homes and puts everyone at grave risk.

Point 2: Forcible taxation wasn't mentioned in my post. I happen to think non-compulsory taxation can be phased in to pay for legitimate government.

Then why would you object to private citizens electing for themselves what police agency they would like to patrol their neighborhoods using their own money? Why object to citizens entering into contracts with each other electing a specific private court to settle their dispute should one arise? If you don't believe these services should be paid for through compulsory means, why would you then compel people to choose only one rights protection agency?

Point 3: Partly addressed in point 1. Also addressed in my post under the reasons competing governments would explode into an orgy of violence. Mentioning potential competition among law enforcement in a free market is a bit of concept stealing. A free market requires ethical and objective laws that are uniformly enforced to prevent use of force. A system (like competing governments) that explicitly states that crimes of force will not be punished in certain circumstances cannot maintain a free market by definition.

I don't see the conflict between competing police agencies and a unified system of due process that all police agencies would be required by law to follow. Why would they explode in violence if the law they must all follow would be the same? Right now we have a multitude of private security forces in this country, but they can't operate beyond the limits of the law. And to take this even to the individual level, I have a right to own a gun and defend myself just as my next door neighbor does too, but we both have to use force only when it is justifiable under the law, and yet, I live peacefully with my neighbor despite each of us owning a gun. How can it be that we both own guns, and we both have the legal right to use them to defend ourselves, yet we reside peacefully next to each other?

If we are both agreeing that Rand was correct in this matter, then her words regarding competing governments are authoritative.

"The use of physical force�even its retaliatory use�cannot be left at the discretion of individual citizens." - �The Nature of Government,� The Virtue of Selfishness, 108.

"Remember that forcible restraint of men is the only service a government has to offer. Ask yourself what a competition in forcible restraint would have to mean." - �The Nature of Government,� The Virtue of Selfishness, 112.

Ryan I am not advocating "competing governments". We have to first agree on a definition of "government". And I am defining it to be a political system that sets the rules for and defines the justifiable use of force. If you take that to mean only one police agency and one court, then the accusation that my proposal could lead to corruption doesn't address the fact that one monopolistic police agency created by government fiat itself can and often are themselves corrupt, ineffectual and inefficient. I take Rand's quotes above to mean an individual cannot on their own discretion use what they think is justifiable retaliatory force absent of the laws that define what is appropriate force. A system of due process requires that guilt be proven, which requires establishing probable cause first for an arrest, and then a trial to establish guilt before commencing with a sentence for punishment, and all of it must be transparent and the information available to the public. All of that I agree cannot be left to the discretion of the individual, it must be defined by a single government and carried out by an agency that is required by law to follow these rules.

Rand also said the following:

Objectivists will often hear a question such as: "What will be done about the poor or the handicapped in a free society?"

The altruist-collectivist premise, implicit in that question, is that men are "their brothers' keepers" and that the misfortune of some is a mortgage on others. The questioner is ignoring or evading the basic premises of Objectivist ethics and is attempting to switch the discussion onto his own collectivist base. Observe that he does not ask: "Should anything be done?" but: "What will be done?" -- as if the collectivist premise had been tacitly accepted and all that remains is a discussion of the means to implement it.

Once, when Barbara Branden was asked by a student: "What will happen to the poor in an Objectivist society?" -- she answered: "If you want to help them, you will not be stopped."

This is the essence of the whole issue and a perfect example of how one refuses to accept an adversary's premises as the basis of discussion.

Only individual men have the right to decide when or whether they wish to help others; society -- as an organized political system -- has no rights in the matter at all. -- (Ayn Rand, "Collectivized Ethics," in The Virtue of Selfishness, p. 80, pb.)

Post 25

Wednesday, October 21, 2009 - 9:17pm

From Ayn Rand Answers:

What do you think of libel and slander laws?

They are appropriate laws because freedom of ideas does not permit you to lie about a person. Under the older interpretation of the courts, truth was your defense. If you know something defamatory about someone, and it's true, then you have the right to say it. But today you can practically say anything, so long as your supposedly not motivated by malice. There are some standards, but they're unclear and impractical.

This type of law is strictly to protect individuals; it has nothing to do with ideas. It's an issue of whether or not you lied about someone and caused him damage. [FHF 73]

Post 26

Friday, October 23, 2009 - 10:15am

For example, one could say McDonald's has better tasting french fries than Burger King, and therefore say McDonald's has superior french fries, but this isn't something that can be considered objectively true or false. It all depends on the personal preferences of the consumer. If however one said that Burger King uses only poisonous potatoes for their french fries, this is a statement that can be objectively verified. If then it's a falsehood, it could be considered slander since Burger King only uses non-poisonous potatoes for their french fries.

John, good example. Sanctioned it.

However, I would still object to using slander laws to muzzle the First Amendment right of individuals to speak in this situation, so long as they aren't trying to use fraud to induce people to enter into a contract based on false statements.

For instance, if McDonald's were to falsely say Burger King used poisonous fries, in an attempt to steal market share, they should be prosecuted, not for slander, but for fraud, since their motivation in making this statement would be to misrepresent facts in an attempt to get people to buy their fries instead of their competitor's fries. That is, they would be using fraudulent statements to induce someone to enter into a very short-term contract where they agree to exchange their money for McDonald's fries, thus harming consumers.

But, if an individual not working for a competitor and not trying to get anyone to enter into a contract of any sort with them as a result of these statements -- perhaps just a disgruntled customer, or someone with mental problems -- should have the First Amendment right to say these things without Burger King siccing their lawyers on them. And Burger King should have the First Amendment right to retaliate by pointing out that the person making these slanderous statements is lying, thus impeaching their character or judgment or intelligence, whichever is applicable.

Now, if an individual made such statements, and then tried to blackmail Burger King in exchange for shutting up, then once again they should be prosecuted for fraud, since they were knowingly making false statements in an attempt to enter into a contract (blackmail is a form of contract) based on false statements.

And, there are people who do maintain that French fries are a type of poison, in that eating them over a long enough time can kill you by causing heart attacks, diabetes, etc. Should this be an actionable offense due to slander? Reliance on "objective" facts is a wonderful thing, but anyone observing the changing viewpoints over time on the healthfulness of various foods -- "margarine is better for you than butter" versus "margarine contains deadly hydrogenated fats" -- should realize that what one may consider an objective, settled fact may turn out over time to be a wrongheaded opinion, or at least not entirely true.

Should PETA be muzzled via lawyers because of all the strange statements they make about food and fur and all that, thereby hurting the sales of people and companies who provide those products? Or should we tolerate their statements, even if they appear to be objectively false, so long as their motivation is not to induce people to buy PETA branded products or otherwise line the pockets of PETA members, but instead to change people's POV about how animals should be treated?

And, if you disagree with all of the above, and still feel that reputation is a property and that false statements harming that reputation should be prosecuted, First Amendment be damned, do you support changing campaign speech laws so that allegedly false statements of any sort or degree whatsoever about one's political opponent can be a prosecutable offense? That is, do you think that McCain-Feingold doesn't go far enough?

Post 27

Friday, October 23, 2009 - 11:16am

Steve, perhaps you and John could get together and resolve your differences over whether the form of governance (or lack thereof) I briefly outlined is or is not anarcho-capitalism, since he says it isn't and you say it is.

I personally don't care which of these terms it is labeled as, and instead prefer to think of it not as an either/or situation, but rather as a continuum of governmental size or levels of coercion. That is, if more and more government functions were privatized, so the size of the federal government dropped to 10% of its current size, then 1%, then 0.1%, then 0.01%, is it productive to squabble at the 0.01% level about what to call such a drastically downsized entity?

Now, to address your other interesting and substantive point: Jim, when you talk about, "competition between forms of government", if you are using the word "government" so as to include laws - and it appears that might be the case since you refer to geographical jurisdiction, then you are advocating anarchy. A person under your system could "choose" not to obey a law from government A, even though the law is a very careful statement of an individual right. He could opt to obey laws of Government B, even though some of those laws violate individual rights, or opt to be a pure anarchist and claim to be exempt from any laws.

Perhaps I didn't explain this in enough detail, as I was in a hurry when I typed that, though I have elaborated on this in the past.

What I was talking about there was a form of what I would consider minarchy, where instead of the current destructive and choice-destroying monopoly winner-takes-all form of governance, where two major parties bitterly struggle for 50.1%+ of the votes, and the winner gets to screw over the loser until it's their turn to be the oppressed minority, they cordially decide to compete and let each voter decide which of several competing visions they prefer to live under, with a framework specified upfront to handle the conflicts between the legal codes.

That is, pretty much everyone can agree on some fundamental laws regarding the NIOF principle that should be upheld. People should not be free to rape, or murder, or commit fraud, or steal. The problem is that under monopoly government, people have a legal right to steal, coerce, or otherwise oppress if they can muster enough votes and get legal verdicts turning a blind enough eye to the NIOF principles in the Bill of Rights and the Constitution.

So, I say remove the coercion by removing the monopoly. Let each person choose from a NIOF-compliant government provider, let each person choose which services from that government they are voluntarily willing to pay for, and have the various government providers (the Republican provider, the Democratic provider, the Libertarian provider) sit down and work out how the ensure that no one's fundamental rights are violated -- how to ensure that those who rape, murder, steal from, or defraud are brought to justice.

And then all the non-core-rights, non-NIOF, stuff that government now does -- building parks and roads and sewers, piping clean water to houses, providing charity, etc. -- well, each governmental provider could offer those services to their subscribers, and their subscribers could choose to pay for these services or get them on their own -- without in any way impinging on the NIOF rights of people enrolled with other governmental providers.

That is, if liberal Democrats want to choose to live in an extremely expansive welfare state, fine, just don't force the rest of us to live under that regime and pay for it. If they want to require their members to run companies, and exclusively shop at companies, that pay a $20 an hour minimum wage and are required to have a 100% unionized work force and a maximum 30 hour work week, fine. Just don't force the rest of us to run such companies or shop there if we don't value that. And if religious conservatives want to choose to live in a society that imposes conservative social values on its members, with fines or other punishments for members who violate that code, fine, just don't force non-members to adopt that code of morality.

Basically, modern government is about 90-95% concerned about stuff that has nothing to do with enforcing NIOF rights, and which is oftentimes arguably a violation of those rights. So let's strip out all the non-NIOF stuff that government does, and let all that be voluntary, with people choosing what set of non-NIOF related laws to live under, but with a common NIOF code of laws for everyone.

Post 28

Friday, October 23, 2009 - 12:46pm

What does this have to do with libel?

If someone falsely accuses Rush Limbaugh of making Racist statements, leading to his losing a business deal, this is not fraud, it is libel. The false claimant is not trying to get the NFL deal for himself. The damage is real and personal, and has nothing to do with business fraud or contract.

Post 29

Friday, October 23, 2009 - 1:11pm

Dean said above, "I would say that it should not be a crime. "Reputation" as this pole implies is... is not property. What people believe is not anyone's property but the belief holders."

Saying that Limbaugh is not harmed when he is libeled because he does not own the opinions that other hold about him is not a sound argument. Let us say that I own a business, but someone physically blocks customers from coming to patronize my store. You cannot say that since I do not own the motions of others there is no damage done to me.

Post 30

Friday, October 23, 2009 - 4:20pm

Saying that Limbaugh is not harmed when he is libeled because he does not own the opinions that other hold about him is not a sound argument. Let us say that I own a business, but someone physically blocks customers from coming to patronize my store. You cannot say that since I do not own the motions of others there is no damage done to me.

If someone physically blocks customers from coming into your store, they are preventing the customers from exercising a choice they want to make. They are taking away the customers' right to enter your store and make a voluntary transaction with you. They are initiating force against your potential customers, and should be punished for that violation of the NIOF principle.

If someone says bad, false, things about you, and the customers are gullible enough to believe it and thus don't shop at your store, no one is preventing customers from exercising a choice. You shouldn't have the right, enforceable under the law, to have stupid, easily mislead people continue to hold a high opinion of your reputation and thus continue to shop at your store.

The two situations are not comparable.

Would you say the CEO of Whole Foods, John Mackey, is due compensation because people are choosing to boycott his stores because other people are misrepresenting his statement about how to improve health care rather than using Obama's misguided approach? John Mackey may or may not suffer a loss of business because of this exercise of free speech -- he may actually get MORE business as a result of the boycott, between the free publicity and from conservative people who would never have shopped there because they thought it was just a lefty store realizing, hey, the owner holds free market principles -- but regardless, should Mackey be awarded money because someone said something that damaged his reputation with people who used to be his customers?

And, yes, Limbaugh may get less business as a result of the false statements that were made against him. Or, the free publicity surrounding the event may increase his viewership, and make the ones who see through this transparent deception more sympathetic to him. He may end up wealthier as a result of this false charge.

The NLF deal was blocked because the current owners of the team used these statements as an excuse to do what they were inclined to do anyway. Do you really think that people doing due diligence on a multi-million dollar deal like that are incapable of doing 20 minutes of research and finding out the statements attributed to Rush were blatant falsehoods?

And someone deciding to not make a voluntary transaction with you hardly rises to the level of a NIOF violation under free-market, libertarian principles.

Post 31

Friday, October 23, 2009 - 4:28pm

If someone physically blocks the customers from coming to your store, then they are obstructing movement in public space, which I would think should be a crime against the customers.

If they physically damage the customers or customer's property if a customer attempts to bypass the block, then they are initiating force in that way as well, which I think should be a crime against the customers.

Post 32

Friday, October 23, 2009 - 4:50pm

Dean, of course the customers are harmed if they are prevented from exercising their infomed decision to patronize your business. But so are you. You cannot say that there is no harm to the shop owner (false) because he does not own the motion of the customers (true but irrelevant). Your analogy fails. The fact that you do not own the opinions of others is as irrelevant as the fact that you do not own the motions of others.

Jim: "Would you say the CEO of Whole Foods, John Mackey, is due compensation because people are choosing to boycott his stores because other people are misrepresenting his statement about how to improve health care rather than using Obama's misguided approach?"

Due compensation from whom? If someone libeled Mackey and attributed to him a false statement about Obama, and Mackey could prove his case in court then of course he would be entitled to seek damages.

Post 33

Friday, October 23, 2009 - 5:41pm

There are several different fallacies at work in the anti-libel law position.

One fallacy is the materialistic view of property. Property - ownership - is not a physical, but a moral condition. "Things" do not need to be physical entities to be property. Property, in part, is the right to the enjoyment of something. David Hume and some libertarians argue that scarcity is the basis of property. Scarcity, being a physical property, is seen as objectively determinable, and hence a scientific basis for property.

Kinsella argues that without scarcity the notion of property makes no sense. He argues, for example, that if we could pluck bicycles out of the air, there would be no reason to prosecute people for stealing bicycles, because anyone who needed one could just wish one up at need. Besides the obviously arbitrary and hence invalid nature of the argument, he ignores the fact that the value of a bicycle that had been given to me as a gift by my now deceased father is a real thing, and I might be justifiably outraged if you stole my bicycle, no matter how easy it would be for me to replace it.

Kinsella argues that the effect of patent law is not to address scarcity, but to create scarcity, to prevent others from creating objects of which their might otherwise be innumerable copies. Kinsella is stuck in a materialist mindset. If he wants to speak in terms of scarcities, then the scarce thing which patents protect is not the physical manifestations of an invention, but the idea behind an invention. New ideas are the most scarce human commodity there is.

Likewise one's reputation. A reputation comes at the expense of hard work, not only one's own effort at integrity, but also one's advertising and self-marketing. If one wants to speak of scarcity (I would rather speak of the right to enjoy one's own moral investment) then what is more scarce than a hard won reputation? If we look at a real life example of libel, what could be more scarce than the reputation Rush Limbaugh has earned as America's number one broadcast personality, and what could be more rare that the ability to buy an NFL franchise?

Being property is not a physical condition. One's ownership of a thing cannot be expressed in merely physical terms. Ownership is not determined by mass, or velocity, or atomic structure. It is not determined by size, or proximity, or location. If I steal your wedding ring I may have it in my house, I may wear it on my finger, I may lock it in a box or bury it in my yard, there may be no detectable physical relation to you whatsoever. If you just purchased it from a catalog and I stole it out of your mailbox upon delivery then you may not ever even have touched it. But even if you have never had physical contact with the object, and even if I have it in my hand the fact of ownership is unaltered, It is a morally determined, not a physically determined reality.

Objectivism does not embrace the NIOF principle as the basis for its politics. Let me repeat, Objectivism does not embrace the NIOF principle as the basis for its politics. Objectivism does not reject force as an axiom. Objectivism rejects the use of force and fraud because they violate man's need to use his mind as his means of survival. The use of force is wrong not because of its physical nature, but because it violates the human mind's need to act on a reasoned choice, on what is conventionally called informed consent. Force in the sense of coercion is a moral, not a physical concept. The use of force and the use of fraud are both violations of informed consent.

There is always a (meta)physical and there is a moral dimension to crime. To return to the example of the shopkeeper deprived of customers through libel or through physical interference, in either case the rights violation is that I and my customers have been denied the right to interact on the terms of informed consent.

There are other fallacies behind the denial of the propriety of libel laws. One fallacy is the idea that it is a violation of free speech. But, again, freedom is a moral, not a physical concept. Freedom doesn't mean doing whatever you want, it means acting without violating consent, whether that of the person who acts or that of the person who is acted upon. Another is the epistemological fallacy that a victim should have to counter lies as if lies and the truth are just relative things that carry equal weight. It is an epistemological error, and one with grave moral implications, to expect a libel victim to counter a malicious positive claim by proving a negative in self defense.

These fallacies flock together. It's not a surprise that the materialist denial of intellectual property goes along with the relativist view of the burden of proof and the intrinsicist view of the NIOF "principle." The principles behind intellectual property and the libel laws are complex ones. It is proper to be cautious in supporting restrictions on what one sees as free speech when one is unsure of the reasoning behind the punishment of "words." Libel laws are not something Objectivists should accept on faith. But there is a difference between caution on one hand and the positive adoption of false principles on another. Such mistakes as treating the NIOF principle as if it were an axiomatic primary are not just isolated ideas. They come with an entire syndrome of philosophical pathology.

(Edited by Ted Keer on 10/24, 9:17am)

Post 34

Friday, October 23, 2009 - 7:17pm

Ted, that's a brilliant dissection of a tough and frequently misunderstood area.

Post 35

Saturday, October 24, 2009 - 6:56am

Seconded.

Sam

Saturday, October 24, 2009 - 8:56am

Great, Ted...

but now who were your burying in the marshes behind Atlantic City? Or do you fish? : ) jt

Post 37

Saturday, October 24, 2009 - 9:28am

Certain types of published statements, like the allegation of criminal activity, are considered libel per se and the burden is on the defendant to prove the truth of his allegations. From Wikipedia:

Defamation per se

All states except Arizona, Arkansas, Missouri, and Tennessee recognize that some categories of statements are considered to be defamatory per se, such that people making a defamation claim for these statements do not need to prove that the statement was defamatory. In the common law tradition, damages for such statements are presumed and do not have to be proven. Traditionally, these per se defamatory statements include:

Allegations or imputations "injurious to another in their trade, business, or profession"
Allegations or imputations "of loathsome disease" (historically leprosy and sexually transmitted disease, now also including mental illness)
Allegations or imputations of "unchastity" (usually only in unmarried people and sometimes only in women)
Allegations or imputations of criminal activity (sometimes only crimes of moral turpitude)

Post 38

Saturday, October 24, 2009 - 9:55am

"Property" is best understood as a bundle of rights relative to a thing (and the 'thing' does not have to be a material thing). We start off on the wrong foot when we mix up the thing in question, with the word "property." I could lease out my car to some one. I could do this because I have a bundle of rights relative to the car that includes the right to possess and to use the car, and with no restrictions that would prohibit leasing. Even if the car were leased, I would still retain the right in that bundle that allows me to sell the car (the right of possession would not transfer away from the lessee until the end of the lease). So, strictly speaking, if I sold the car, just after leasing it, there would three people that could claim, "That car is my property." I still have the right to receive the lease payments, the leasee has the right to possess and use it till the end of the lease, and the purchaser has rights of ownership excepting possession and use until the end of the lease. A thief could steal the car, but not the property - not any of the rights that make up the bundle for that thing.

Our ability to create contracts with all of their clauses and conditions arise naturally from this moral/legal bundle of rights and the contract is a legal description of the handling of those rights.
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From there it can be recognized that this relation is really three-sided. It is the relationship between the owner of a right, that which the right refers to, and other people. A contract names the third party involved. Before any assignment (contract), that third-party is unknown, X, a variable.
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Digging deeper, a right implies a value. It isn't scarcity that underlies a right, it is value. Breathing air is of value and that would remain so whether air were scarce or not. "Scarcity" is just a description of a relationship between supply and demand. And there would be no demand in the absence of value. Bastiat says, "...men never are, never can be, owners of anything except value..." And it isn't the car but the values a car can have for a person that become the subject of a right. And it is the difference in valuation between people that fuels trade.

It is the value of my reputation that I have a right to, that I own. My bundle of rights relative to my reputation might include the right to create, improve, destroy, or trade upon. Remember, my reputation isn't in some other person's head until they perceive it. Reputation is like a bank account and I can keep working hard to generate the kind of capital is deposited in that account. The idea of a bank account, the way most people hold it, is itself a metaphor since that bank doesn't have a unique physical place for the actual dollars you handed the cashier that is your "account." But you have a right to the value of those deposited dollars, just as I have a right to the value of the reputation I've earned. Libel is most often a form of vandalism - a senseless destruction of someone else's property.

(Edited by Steve Wolfer on 10/24, 9:58am)

Post 39

Saturday, October 24, 2009 - 1:22pm