David Friedman's view of defamation
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.
Professor of Law
Santa Clara University