Free speech, civil disobedience and why we should abolish the libel laws

Over at Liberal Conspiracy, I was arguing on a thread concerning the arrest of Mona Eltahawy, nabbed in the process of defacing a poster in the New York subway. The poster was, according to Lib Con burghermeister Sunny Hundal, racist, and much of the comment thread was devoted to disputing whether it was or was not.

Another interesting part of the incident was that a passing woman attempted to stop the act of vandalism, by shielding the poster with her body, which led to this second woman getting sprayed by Mona.

After a couple of minutes, the cops stroll up and arrest Mona. She demands to know what they are arresting her for, which she certainly has a right to know, but surely she should be aware that she’s not allowed to take a spray can to anyone else’s property? Perhaps not, as during the tussle, she proclaims her act is a matter of free expression, which would indicate in her view it’s protected by the Bill of Rights.  Another clue to understanding her viewpoint is that she denies she has done anything wrong by causing the second woman to get paint on her clothes. I suppose, if her initial act of vandalism was legitimate, then this would be so, but as it was not, it isn’t, and in fact it is a more serious act to violate a person by spraying paint on them, than a poster.

Without a correct understanding of first principles, it is easy to get entangled in conflicting claims of free speech and the right to protest.  As ever, it all boils down to property rights. From this principle immediately proceeds the right to self-defence against aggression. In the case in point, the poster is the property of A, and Mona has no right to deface it, without A’s permission. This being the case, the second woman is acting to prevent Mona doing something it is reasonable to suspect is unlawful, and she has every right to stand in her way, and Mona commits assault when she continues to spray both the poster and the second woman.

Mona’s claim, to paraphrase, that her act is protected under the First Amendment is utterly spurious, but she’s certainly not the only one who’s confused on the rights and wrongs of civil disobedience and the right to protest.

In order to attempt a clarification, I will first give the following definition of civil disobedience; committing a non-violent act, on moral or political grounds, which is in violation of a law or regulation, either because the law or regulation is deemed to be unjust, or as a protest against some other perceived injustice.

As for the right to protest, this is no more than a subdivision of the right to free speech, although it may be worth noting that free speech itself is only a subdivision of the freedom of the individual, and as such is limited in the same way as any other such freedom – i.e., it cannot violate the same and equal right of anyone else.  What this means is that free speech cannot go beyond the bounds set by property rights.  Where this becomes problematic is on ‘public property’, such as in the street, and although privatising all the streets would solve the conundrum, that is not likely to happen any time soon.

I have noted before the importance of distinguishing between morality and the law. In my view the law should only be concerned with prohibiting the violation of property rights. This does not contradict the notion that the law is a means to an end, where the end is justice. Nor does it refute the view that criminal acts are usually immoral. What it does is stress that it is the violation of someone else’s person or property which is unlawful, notwithstanding the morality or immorality of the act.  This latter issue (of morality) should not however be ignored, if justice is to be done, but should be reflected in the sanctions imposed on the perpetrator, in other words (albeit with some simplification); let the punishment fit the crime.

Now, it must be accepted that the law in reality does not conform to the limited function of the defence of property rights, which is hardly surprising given the fact that the state is the foremost violator of property rights and the sacrosanct Non-Aggression Principle.  For this reason and others, an individual may find himself with a choice between obeying his own conscience and obeying a particular law, in the knowledge that failure to do so may have unpleasant consequences, such as arrest and prosecution. This is essentially the case with Mona Eltahawy’s decision to deface the poster.  As far as she is concerned, her act was moral, but she should recognise that this does not indemnify her act in the eyes of the law, although it may certainly provide a mitigation to the crime, at least amongst those who share her moral outlook.

Returning to the matter of free speech, it is clear that the law as it stands does not always protect our legitimate rights.  Furthermore, the general view seems to be that some restrictions are necessary. However, the justifications used to back up this view often have nothing to do with free speech properly understood.  The law prohibiting conspiracy to commit murder is not a curtailment of free speech, any more than the law against vandalising a poster in the New York subway.

Liberty-lovers are right to view prohibitions on ‘hate-speech’ and ‘incitement’ as unjustifiable, especially when considering the quiet re-definition applied to the latter, which now seems to cover speech which provokes anger, rather than incites criminality. However, I would say it is the libel laws which stand as the single greatest infringement of our rights to speak freely.

The case for the abolition of the libel laws was made very well by Walter Block in ‘Defending the Undefendable’.  As he notes, one of the likely effects of this would be to shift the onus away from the accused and on to the accuser. At present, there is a strong disposition towards believing a possibly libelous story, on the grounds that, if it were not true, then the accused would sue. However, taking legal action in such matters comes with a potentially ruinous price tag, which may in itself be enough to dissuade the accused from doing so. Whereas, without the libel laws, the accuser would need to produce some evidence to support his accusation, if he wanted it to be believed.

When the libel laws are discussed, the initial response is often that the libel laws are needed to protect an individual from a false and malicious accusation. Making such an accusation is certainly wrong morally-speaking, but, as Block explains, no one owns their reputation, which consists of the thoughts and opinions of others, so no property violation has occurred.

Winning this point may be an uphill struggle, especially given the negative connotations welded to the notion of property rights in the minds of our left-leaning fellow creatures.  However, we should not allow ourselves to be detained so long in making that case, that we neglect the following fact; these laws are probably far more often used by corporations than individuals, no doubt for one reason that they have far greater resources to mount a legal action.

I do not mention corporations merely to curry favour with anti-capitalists, but it is with regard to corporations and organs of the state, that the chilling effect on free speech can be more readily observed. An indication of this can be seen in this clip from the satirical show ‘Have I Got News For You’. Now, if anyone knows their way round the libel laws, it is Ian Hislop, editor of Private Eye, but that doesn’t stop Jeremy Clarkson, at least for comic effect, fearing the wrath of Goldman Sachs. Certainly the libel laws provide corporations with a blunt instrument to crack down on people saying things they don’t want said or heard, and, due to the severity of our native laws, many corporate lawyers bring their cases to English courts, even when the alleged libel took place in another country.

There is one other area where I think we would see a benefit from the abolition of the libel laws, and that is around whistle-blowing and leaked information.  Journalists (or anyone else) acting in the public interest as they see it, wishing to expose a scandal,, will be far freer to do so, if they are not obliged to support the claims, as they currently are, with evidence that may lead directly back to the source, who may be running a significant risk by providing the evidence of wrong-doing.

Therefore, let us call for the abolition of libel laws, so whistle-blowers may be better protected, evil corporations more subject to criticism, criminal acts by agents of the state more likely to be exposed and slandered individuals not forced to risk bankruptcy to prove themselves innocent (and –sotto voce – Lockean property rights upheld as the basis for law).

One Comment

  1. If it is O.K. to attack the private property that are anti Islamic posters – is it O.K. to attack the private property that are pro Islamic posters?

    No I thought not. These hypocrites would not accept a “freedom of expression” defence to spray painting pro Islamic posters.

    As for the libel laws……

    Truth is (or at least should be) a total defence against claims of “libel”.

    In British law one needs to show (to the satisfaction of a jury) that what one wrote was true.

    In the United States all one needs to show (again to the satisfaction of a jury) is that one believed it was true – whether it is true or not.

    I can understand that Walter Block may object to even that – but surely, at least under the American definition of libel, laws against it are not a serious problem?

    For example, is it really an outrage that if I go around putting up posters saying “Walter Block rapes little boys” I should at least believe this to be true.

    Rather than just trying to get Walter Block killed (or castrated by an angry mob) by blatently lying about him.

    However, I fully accept that there are counter arguments to this.



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