Blackmail, Copyright, Libel and Free Speech


by Stephan Kinsella
http://feedproxy.google.com/~r/thelibertarianstandard/~3/dcKpNwoP-Fk/

A recent Volokh post on Blackmail discusses the

perennial question of when speech becomes constitutionally unprotected blackmail. The idea here is that there is a ”tension” between blackmail law and free speech rights. And even though we know blackmail law suppresses free speech, most people are in favor of it anyway. Volokh calls this dilemma “one of the thorniest conceptual questions in all of jurisprudence” and summaries what is “sometimes called the Blackmail Paradox”. The blackmail paradox observes that A is generally free to publish embarrassing information about B, or to keep quiet about it; and A is free to ask B for money to do or refrain from doing something within A’s rights. Yet if I ask you for money or a service in exchange for my not revealing embarrassing information about you, then that’s a crime.

What’s the explanation? Legal scholars have debated this for decades, and to my knowledge have not come up with a perfectly satisfactory answer.

I disagree with Volokh. The answer is simple: blackmail law is incompatible with individual rights and should not exist, as argued by Walter Block and Murray N. Rothbard.1 The paradox only arises when you try to justify free speech and a law that undermines it. Yes, there is a “tension” between such law and free speech; it should be resolved not by finding the right “balance,” but by rejecting the unlibertarian law altogether.

Intellectual property, in its various forms—including patent and trademark, but most especially copyright—also limits, chills, and suppresses freedom of speech and of the press. And thus in these cases too, mainstreamers and statists, who think we “must” have these laws, but who recognize the tension between them and civil liberties, fall back on the confused and utterly unprincipled “we must find a balance” approach. As Ayn Rand might say, you don’t want to find a balance between nutritious food and poison.

As noted, trademark and even patent, and ohter types of IP such as publicity rights, undermine freedom of speech.2 But the most pernicious in this respect is copyright, which threatens not only freedom of the press and freedom of speech, but Internet freedom itself.3 In the name of copyright, books are censored and suppressed and chilled.4 As noted, this is a vivid illustration of a situation where libertarians and classical liberals are forced to try to adopt a “balance” between fake, positive-law rights and libertarian rights. Once an artificial, non-libertarian right is enshrined in law, it necessarily invades the turf of real, negative rights, much like printing more money dilutes the value of existing money by way of inflation.

Even the courts recognize that copyright (and defamation) laws are incompatible with free speech and the First Amendment. This is actually an argument that these and related laws are unconstitutional. After all, federal legislation on trademark and defamation (libel)is not even authorized in the Constitution. So such laws are doubly unconstitutional: they are not authorized, and are hus ultra vires, and they are incompatible with the First Amendment. Copyright law, by contrast, is authorized in the Constitution. However, the Copyright Act is clearly incompatible with the First Amendendment. What is one to do, in the case of such a conflict? Well in this case, the First Amendment was ratified in 1791, two years after the Constitution and its copyright clause (1789). Therefore, to the extent of any conflict, the later-ratified provision takes precedence. In other words, the First Amendment makes copyright uconstitutional. Not that the courts see it that way, of course. But still.5

The point is: libertarians and others who believe in civil liberties, Internet freedom, freedom of speech and of hte press, should oppose positive state laws that are inconsistent with theese rights, including blackmail, defamation, trademark, and copyright law.

Addendum: Another “tension” in federal law is that between antitrust and trademark law. The former purports to oppose monopolies, while the latter grants them. See Pro-IP Libertarians Upset about FTC Poaching Patent Turf; State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law. In this case, both IP and antitrust law need to go: IP law, because it forms monopolies that antitrust law claims to oppose; antitrust law, because it focuses on private companies, which cannot form true monopolies, and ignores the real monopolies formed by the state itself.

[C4SIF]

Notes

  1. See Rothbard, “Knowledge, True and False,” in the Ethics of Liberty; and various articles on blackmail on Block’s publications page (including our co-authored piece The Second Paradox of Blackmail), Defending the Undefendable, ch. 6, and Block’s Legalize Blackmail (Straylight, forthcoming 2012).
  2. Trademark as Censorship: Newspaper Claims Satirical Blogger Mentioning Its Name Is Trademark Infringement; Copyright and Free Trade; Patents and Censorship; Patents Threaten To Silence A Little Girl, Literally; Cato/Reason/CEO brief opposing medical diagnostic process patents as violating freedom of speech; Wilt Chamberlain’s Family Tries To Block Film About His College Years, Claiming ‘Publicity Rights’; Michael Jordan Sues Grocery Stores for Hall of Fame Congratulatory Ads. See also “Types of Intellectual Property.”
  3. See Where does IP Rank Among the Worst State Laws?.
  4. Howard Hughes, Copyright, and Censorship; The Patent, Copyright, Trademark, and Trade Secret Horror Files; Should Copyright Be Allowed to Override Speech Rights?; Libraries: Prepare to burn foreign books, courtesy copyright law; Paramount Trying to Ban “Godfather” Sequels with Copyright; Federalist Society Asks: What’s the Right Amount of Censorship?; other posts.
  5. Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment; Copyright is Unconstitutional.

10 responses to “Blackmail, Copyright, Libel and Free Speech

  1. Kinsella has a long track record of penning exhaustive apologetics for theft, and here’s another one, this time appealing to the US Constitution. A significant part of the problem with this (short) article and a common one with such theorists is considering all “IP” to be qualitatively similar. But libel and copyright have little in common. One is a question of whether it is right to unjustly impugn a person’s character, the other a question of property rights. Which brings us to the main point.

    All property rights are limits on the freedom of others. My neighbour’s land property rights prevent me arbitrarily wandering into his garden; his property rights in his possessions prevent me wandering off with his lawnmower. His property rights in his person prevent me punching him if he objects to me absconding with the lawnmower. Or rather, they don’t so much prevent me doing so as punish me if I do.

    So to stack up a property right against freedom of action, as Kinsella does here, is a (deliberately?) misleading argument. It is as if to say that the law against rape is a restriction on my right to have sex. Any libertarian knows that this isn’t the case, at a “libertarianism 101″ level. I do not have the right to intrude on another person’s property- their garden, lawnmower, or vagina- without their authority. That is what property rights are specifically for.

    Thus the question for any society is one of, “what shall we consider persons to have property rights in?”. With copyright, our society has decided that the right to own the fruits of one’s creative production exists. This is arbitrary. So are land property rights or personal property rights. No society in history has supplied absolute rights in either of those things, but as Libertarians we would support absolute rights in those things. Creatiing absolute rights is a central mission of the Libertarian movement. No eminent domain. No “stand in line, soldier. You’re drafted!”. And certainly no, “spread you legs for the Good Of The People”!

    So, why would we have a copyright right? It is ultimately a utiltarian argument, as are all such arguments ultimately. (Some may appeal to “natural” rights, but a cursory inspection demonstrates that nature does not produce rights- they are an intellectual invention. The word “natural” here should be understood in its 18th century meaning, of “obvious” or “common sense”. As when we say, “well, naturally” to mean “of course”.

    Libertarians believe that markets are the most efficient mode of production. They are most efficient because they generate a price system which records value (see Von Mises, Rothbard, numerous others). The essential constituent of markets is a property right in the thing to be marketed. A farmer cannot sell his grain, a garden centre cannot sell me a lawnmower, and a prostitute cannot sell (or rent) access to her vagina, unless they all have a pre-existing property right in those things. This is also true of created works.

    Why do we need a market?

    Capital investment. Theftists always say something like “distribution is free. Therefore there are no costs for the market to bear.” But a movie may cost $200M to produce. A recorded song hundreds or thousands. A comic book may take the work of four people for a month. Without a means to sell the produce of their labour, these persons cannot labour, just as a farmer cannot grow grain for free even if distribution were magically free, via transporter beams or something. He must be compensated for his lost opportunity cost devoted to grain production.

    So the question is simple. Do we want production of creative works? Movies, music, comic books? If your answer is yes, you must desire a market and, if you desire a market, you must desire a property right, which we currently call “copyright”.

    If so, then inevitably the law will persecute people who violate that right, just as it does trespassers, thieves and rapists as rights violators, and would do whether law were State law or Private anarcho-capitalist law.

    Markets or no markets? That is the question. One would expect Libertarians to say “markets”.

  2. The fact that you can characterize some property rights as limits on others’ freedom does not mean that any limitation on freedom is thereby justified. If it was, then you could justify rape or murder or conscription or slavery–why should the victim complain, after all, that her from is being limited? After all, all property rights limit freedoms!

    The rest of your comment is confused. First, it is simply not an argument for the justice of patent and copyright. It is just a string of bromides and assertions. Second, it is not that we libertarians believe in absolute rights, but that we oppose aggression defined in terms of a conception of property rights anchored in the idea that the first person to homestead a resource, or the person who acquires it from a previous owner by contract, has a better claim to the resource than anyone else. And it is not possible for you to show that someone other than such an owner has a better right to the resource.

  3. Stephen, you have not answered my argument, which is very clear. I will not repeat it, since it is already viewable above. Dismissing an argument as “bromides and assertions” is usually a tactic of somebody who cannot answer that argument.

    Then-

    Second, it is not that we libertarians believe in absolute rights, but that we oppose aggression defined in terms of a conception of property rights anchored in the idea that the first person to homestead a resource, or the person who acquires it from a previous owner by contract, has a better claim to the resource than anyone else.

    No. What. Where did you get that complicated thing from? We support a woman’s property rights in her body because she owns it. Not something to do with homesteading or having “a better claim”. We don’t ask her to “show” anything or prove anything. She owns it. End of. Like my neigjhbour’s lawnmower. It’s his. He owns it. That’s it. If there is one thing Libertarians do believe in, it is absolute rights. You own the land, not “until somebody else has a “better” claim to it”.

    Now, could you please answer this question: if you abolish the market in created works, what method of production is going to replace it? If I can’t sell my movie/music/art/novel, how do I support the production of it?

  4. Hey people! What’s a “bromide”?

    I thought it was a kind of photographic print, until I discovered the Libertarian Alliance comment thread on this one!

    One does of course know about the urban myth of potassium bromide in the tea-brews of British soldiers in WW2, put there by the War Ministry to allegedly make them less prone to be able to have sex with women, but I think we’ll pass on that one.

  5. Ian,

    You have no coherent argument. You say that if you want creative works, you need a market, and that “is” copyright. This is not an argument because it is hypothetical. I mean maybe I don’t want creative works. Is the purpose of law to make sure there are creative works, or to do justice?

    And saying you “need” a “market” to have creative works… okay, well then even if this is true, and even if I “want” “creative works” (whatevr this means; I mean, how many? etc.), then all this means is that we should favor there being a “market.” And … there is, when you have a free market. But saying the market “is copyright” is just not true, if you are saying that you have to have copyright to have a market.

    Moreover, you cannot with a straight face argue that there would be no creative works without copyright. Shakespeare, Homer, classical music….helloo. At most you can make the empirical case that without copyright we would not have enough creative work, and that wiht copyright we would have more creative work–and, that the value of this additional creative work is greater than the cost of the copyright system. Right? Well… where is your proof? Where is your argument? What are the numbers? Seems to me you ought to know them, and the burden of proof is on you, to show these things, since they are the implicit underpinnings of your simpleminded “argument”.

    As for me not answring your “argument”: I have probably written more on this than anyone else, and I have addressed every dumb argument I have come across, including yours.

    “‘Second, it is not that we libertarians believe in absolute rights, but that we oppose aggression defined in terms of a conception of property rights anchored in the idea that the first person to homestead a resource, or the person who acquires it from a previous owner by contract, has a better claim to the resource than anyone else.’

    “No. What. Where did you get that complicated thing from?”

    This is the essence of libertarianism. You are probably not a libertarian (given your unprincipled and simpleminded utilitarianism) so would not be expected to know this. But see my What Libertarianism Is. http://www.stephankinsella.com/publications/#what-libertarianism-is

    “We support a woman’s property rights in her body because she owns it. Not something to do with homesteading or having “a better claim”.”

    YEs, libertarians believe in self ownerhsip plus the ability of self-owning actors to acquire ownership of external objects by homesteading or by contract from a previous owner. The act of acquisition of an external object is what gives you a better claim to it than others–who are “latecomers.” With respect to one’s body, one is a self-owner because one has a better claim to one’s body, not because of homesteading but because of the natural connection everyone has to his body. I explain this also in the article linked above. You would be advised to study it, and Hoppe’s ch. 1 , 2 , and 7 of A Theory of Socialism and Capitalism.

    “We don’t ask her to “show” anything or prove anything. She owns it. End of.”

    We recognize that she owns it, because of the relation between her as a person and her body. Sure.

    “Like my neigjhbour’s lawnmower. It’s his. He owns it. That’s it.”

    He owns it because he purchased it from a previous owner (say, the manufacturer or dealer), and ultimately back to the people who homesteaded its unowned raw materials.

    ” If there is one thing Libertarians do believe in, it is absolute rights. You own the land, not “until somebody else has a “better” claim to it”.”

    The reason you own it is because you have a better claim to it than any possible challenger, since if you are the homesteader or someone who traces his title back to a homesteader then every potential challenger in the world is a “latecomer” with respect to you; that is why ownership is good against the world, i.e. a “real” right.

    “Now, could you please answer this question: if you abolish the market in created works, what method of production is going to replace it?”

    The question is: in a free market, what gives you the right to use force against me or my property, for competing iwth you, for copying from you, for learning from you, if I have not trespassed against your own property’s physical integrity? You have no rights other than this.

    ” If I can’t sell my movie/music/art/novel, how do I support the production of it?”

    Why is this relevant to what laws are just? You should stop putting out questions as if they are arguments, as petulant gotchas or demands, as ways of sneaking in implicit norms. Defend those norms in coherent arguemnt, and admit your assumptions, or just ask real, genuine, sincere questions, but without spitting them out petulantly as if they are challenges.

    You are obviously either a newb, amateur, non-libertarian, or confused–I have given you some pointers above. Do not bother me more with petulant demands, if you do not want to learn from the advice your betters have given you. But if you want to humbly learn from me, I will be happy to be patient and try to help you find enlightenment. I also suggest you read my Against Intellectual Property, and maybe my Concise Guide to the case against IP — both at http://www.c4sif.org/resources. But if you intend to pretend to know what you do not and use faux-questions as gotchas and challenges when you obviously have no coherent political philosophy foundation, I am not intersted in wasting my valuable time with you.

  6. Okay, for a start. Let’s dispense with the “you are not a proper libertarian” argument, which is fatuous. And the “you are ignorant”and the inevitable “here’s a link to a basic explanation” patronising dismissal. I have spent many years in Libertarian debate, just like you. So, getting past that bit of arrogant nonsense, here’s the meat-

    I mean maybe I don’t want creative works. Is the purpose of law to make sure there are creative works, or to do justice?

    I have to choose one or the other? Why? Freedom or security? Meat or veg?

    The purpose of the law is to do justice. But the law has to be based on a rights framework; a definition of property must exist before one can define theft. It is not the job of the law to actively ensure that there is creative property; but if we who make the law as a community decide we want creative property, we must define a rights framework.

    You cannot outlaw slavery without a right of self-ownership. You cannot outlaw theft without a right of property. And so on.

    And saying you “need” a “market” to have creative works… okay, well then even if this is true,

    Jumping in, “even if this is true”. This is basic libertarian economics.

    and even if I “want” “creative works” (whatevr this means; I mean, how many? etc.), then all this means is that we should favor there being a “market.”

    Yes. That is my argument. If you want food, you need a food market. If you don’t want food, don’t have a food market.

    But saying the market “is copyright” is just not true, if you are saying that you have to have copyright to have a market.

    A market as stated above is predicated on the existence of property to buy and sell. That requires a property right. We currently call that “copyright”.

    Moreover, you cannot with a straight face argue that there would be no creative works without copyright. Shakespeare, Homer, classical music….helloo.

    None of whom, pre-copyright, had a significant market in reproductions, largely because not much reproducing technology existed. Classical music was almost entirely written at the behest of patrons, or for live perofrmance. There’s nothing wrong with Music For The Royal Fireworks, but I’d prefer to hear Hendrix playing Purple Haze, thanks. We are discussing reproduced creative works. The mass market. No such market existed back then.

    At most you can make the empirical case that without copyright we would not have enough creative work, and that wiht copyright we would have more creative work–and, that the value of this additional creative work is greater than the cost of the copyright system.

    No, I’m actually making the case thatt no market can exist at all without property rights. How hard is this?

    Right? Well… where is your proof? Where is your argument?

    Seriously, you are aware of the mountain of economic work on market economics? Do I really have to point you at Smith, Von Mises, Rothbard, Bastiat…?

    This is the essence of libertarianism. You are probably not a libertarian (given your unprincipled and simpleminded utilitarianism) so would not be expected to know this. But see my What Libertarianism Is.

    Congratulations! You’ve just argued from your own authority!

    Okay, comment is getting too long fisky-ways. In general-

    “Homesteading” is one potential justification for ownership, but not universally accepted as a good one. It’s really very American, all that running around grabbing plots thing. Ultimately, you can’t prove it as a valid justification for ownership (Hume: Is and Ought) but it’s as good a rule of thumb as any for land. The problem is, you can’t really extend that into other realms. Every form of property (self, land, possessions, one’s production) are different in form and have some different justification. Many people are hostile to land ownership, including some libertarians. You can’t prove the right to own land. You always end up back at a utilitarian argument that land rights create a market, and price structure, and thus efficient utilisation.

    It still comes down to this; are you accepting my assertion that destroying creative property rights would result in the absence of reproduced created works (movies for home viewing, music, comic books) other than those that can be produced either with some other source of funding (for promotion, advertising, merchandise sales etc) or by patronage and so on? You seem to be. And if so, you are accepting my argument that copyright is an essential right for such a market to exist, and you are happy for such a market to not exist.

    If so, we are at an impasse, because I prefer a society whose property rights support the existence of those products, and you are happy to live without them (in search apparently of an idealised form of “justice”).

    The argument is inevitably utilitarian at this point. I want to watch movies at home, and listen to music at home, and so on. If you do not, you are welcome to promote such an arid society, and read my comic books. I probably cannot dissuade you from that. But it would be nice for you to clearly state that that is what you are seeking, because an awful lot of anti-copyrightists (many of whom seem to turn to you for inspiration) appear to believe they can have both- no copyright and the wealth of created works we currently enjoy; and to lead them to believe that that is possible is frankly dishonest.

    I would refer you to some sources for “further reading” at this point, but I’m not a patronising git.

  7. NB editing error in last paragraph put “and read my comic books” after “arid society” instead of after “listen to music at home” where it made sense.

  8. Ian:

    “Okay, for a start. Let’s dispense with the “you are not a proper libertarian” argument, which is fatuous. And the “you are ignorant”and the inevitable “here’s a link to a basic explanation” patronising dismissal. I have spent many years in Libertarian debate, just like you. So, getting past that bit of arrogant nonsense, here’s the meat-”

    First, i don’t konw who you are, and you sound unlibertarian, so there is no reason for me to think you are libertarian unless you at least say so–which you still have not. And the fact that you capitalize it as Libertarian only makes it more reasonable to assume you are a newb. As for arrogance and patronizing — I prefer to stick to substance. I won’t waste more time on this stuff with you. I have given you fair warning.

    “‘I mean maybe I don’t want creative works. Is the purpose of law to make sure there are creative works, or to do justice?

    “I have to choose one or the other? Why? Freedom or security? Meat or veg?”

    Justice is primary. There is no reason to think that in a just, property rights respecting society, there would be insufficient creativity.

    “The purpose of the law is to do justice. But the law has to be based on a rights framework; a definition of property must exist before one can define theft. It is not the job of the law to actively ensure that there is creative property; but if we who make the law as a community decide we want creative property, we must define a rights framework.”

    You are assuming too many things here, e.g. some vague democratic-positivist view of law and justice.

    “Jumping in, “even if this is true”. This is basic libertarian economics.”

    There is no such thing as libertarian economics.

    “A market as stated above is predicated on the existence of property to buy and sell. That requires a property right. We currently call that “copyright”.”

    No, we do not. You don’t understand what IP is, obviously. Patent and copyright are just legislated positive law rights. There are others. And therea re other areas of creativity not covered by “IP”. e.g. culinary arts, theoretical physics, math, fashion designs, perfumes…

    “Classical music was almost entirely written at the behest of patrons, or for live perofrmance. There’s nothing wrong with Music For The Royal Fireworks, but I’d prefer to hear Hendrix playing Purple Haze, thanks.”

    and this is what “Libertarianism” has come to: “we” “need” to “make sure” that the State exists, and has a legislature, and passes “laws” that make sure that anonymous, eristic Internet inquisitors get their Hendrix. Ah, the modern age.

    “No, I’m actually making the case thatt no market can exist at all without property rights. How hard is this?”

    Arey ou saying that if patent and copyright were abolished, there would be NO more R&D, innovation, invention, paintings, novels…? Really?

  9. I am a libertarian and I say you fell for the progressive switching the conversation from right to Life, Liberty and to Own Oneself’s Property to freedom of speech. I’m talking about libel so much as your coming to the conclusion Copyright Law is anti-libertarian. Anything from the truth! Remember our principles are not freedom of speech, but Freedom, are not right to own other’s property but OUR right to own OUR Property. Once work has been put into an object, like carving a rock, or like designing a plan/character, then yes, we now own it or at least the part involved with our work. Our work is OUR property and we have the freedom to do what we want with it and noone has the freedom to take it away from us. Libertarians stand for the Freedom of people to OWN their OWN work and Copyright Law is to make clear that right is valid for all work, not just physical and defend that right and thus why you see it implemented in the constitution.

    As for libel, right conclusion, but not the best path to it. Freedom is defended, not freedom of speech. Speech, like death threats from government, that violates Freedom of a person is unconstitutional (not to mention Life or Property), see Wikipedia on Coercion. Freedom that doesn’t violate anyone else’s right to Freedom, Property or Life is constitutional, including libel. Blackmail where information was obtained by violating the Property of the victim is unconstitutional, like spy cameras on your property against your permission. “Blackmail” as in that law however is waaaaay to vague and covers so called “blackmail” that is constitutional.

    Everything for a libertarian should come down to right to Freedom, Life and to Own Oneself’s property. Unfortunately progressives love to change the test from Freedom, Life and Oneself’s property to freedom to speech (and then claim death threats are thus legal to get you to agree and be ridiculous and thus switch and say “see how ridiculous!, No speech MUST been limited” then take away all freedom of speech both violating FREEDOM), change Right to Own Oneself’s Property to right to privacy (and then say “you can’t say he’s a pedophile for your violating his privacy!” “libel!” “slander” when we only have a right to our own property, not the thoughts/words of another person which is THEIR property and their Freedom to do with unless they take away other person’s Freedom, Life or Property), and change Libertarians into useful idiots. We are not idiots! FOCUS ON OUR PURPOSE AND CORE VALUES, DON’T GET DISTRACTED WITH THEIR SIMILAR SOUNDING BUT VERY DIFFERENT PRINCIPALS/TOOLS.

  10. P.s: If I put my work into unclaimed land (no government or person), like a beaver who builds a dam. Yes I OWN it, at least in the sense I own the work I put in it.