David Friedman's view of defamation

Russell Turpin deafbox@hotmail.com
Fri, 3 Aug 2001 08:09:39 -0500

Following the discussion with John Hall, I queried
some libertarian theorists I know. Jeff Hummel 
believes that libertarians, almost universally, oppose 
any criminal or civil law against libel, slander, or 
defamation. From the libertarian viewpoint, these 
are simply examples of a person's right to say what 
they want. Libertarian are more divided in their 
views of copyright and patents.

The comments below are from David Friedman,
who puts an interesting economic spin on the
issue of defamation.


[The remainder of this post is a response from David

I don't think I have ever written on the subject. From a moral point 
of view, it seems to me that the only person who might have a claim 
against the defamer is his hearer, who might argue that he was the 
victim of fraud. I don't have a right to have you think well of me, 
or even not to have you think ill of me for bad reasons.

The economic argument for defamation law is that while the people who 
believe the false statement (and so don't go to me even though I'm 
the best doctor in town, say) may be the real victims, they are a 
dispersed group and so unlikely to sue. I, as the person defamed, 
bear a much larger cost than any one of the people who believed the 
defamation, so have a much stronger incentive to sue. Think of it as 
analogous to a bounty system, where the money goes, not to the person 
who was injured by the criminal, but to the person who brings him in.

One possible way of making these two arguments consistent would be to 
have the sort of market for tort claims that I have discussed 
elsewhere. If you can get transation  costs low enough (by having 
people sell a bundle of all minor tort claims to a middleman, who 
then rebundles for resale to the people who will sue), you would 
expect the labelled party to buy up the claims of the people who 
believed the libel and then sue on their behalf.

Of course, that still leaves you with the question of under what 
circumstances your telling a falsehood to me that I believe should be 
actionable, which isn't entirely clear to me.

I'm not sure what my father's views are, but I would expect them to 
be similar to mine.
David Friedman
Professor of Law
Santa Clara University