Why Criminal Defamation and Insult Laws Should Be Abolished

It is by no means uncommon for some celebrities to collect large numbers of malicious online comments directed at them and file criminal complaints on grounds of defamation or insult. Most people defend such actions as holding people responsible for freedom. However, the great libertarian Rothbard argued that defamation and insult would be entirely legal under a libertarian legal order. The reason is that there is no such thing as a right to social reputation.

Rothbard’s libertarian philosophy is grounded in valid natural law. Valid natural law is self-evident, true in itself, and cannot be refuted. Representative examples are property rights and the non-aggression principle. Individuals own themselves and can come to own natural objects by mixing their labor with nature. Whatever is justly owned may be disposed of as the owner wishes. In addition, no individual may initiate aggression against another, and a victim of initiated aggression may justly use force to exact a corresponding price. These two principles function as basic axioms that serve as the basis for discovering and deducing the entirety of the libertarian legal order.

Social reputation is nothing more than a subjective judgment or attitude that exists purely in people’s minds. A’s social reputation is not something A owns; it exists in the minds of others. Since A does not own other people’s minds, A does not own his own social reputation. Therefore, even if B defames or insults A, A cannot sue B. This is so even if the defamation or insult is not based on fact, but consists merely of abusive language or falsehoods.

In other words, there is no right to have one’s privacy protected or one’s honor left undamaged. The only right concerning privacy is the right to protect one’s property from physical intrusion by others. Human beings have a natural right to use their property to express thoughts or opinions legitimately. Even if B is not a thief or a homosexual at all, and is in fact a decent person, A still has the right to use his printing press and paper to mass-produce false pamphlets saying that B is a thief and hand them out to people, or to use his computer to spread the false claim on social media that B is a homosexual. B has no right to make other people believe that he is not a thief or a homosexual.

Laws prohibiting defamation and insult are laws prohibiting the legitimate exercise of private property. In criminal complaints related to defamation or insult, the party actually bearing criminal responsibility is not the so-called malicious commenter, but rather the complainant who exploits the state’s evil laws—which classify as crimes acts that, under natural law, constitute the legitimate exercise of private property—to extort settlement money from innocent others or saddle them with criminal records. The great libertarian Block once expressed the somewhat principled view that all those who participate in crimes committed through state power should be classified and punished as criminals in a truly free society. If one accepts his standard, then some celebrities who file complaints over malicious comments would have to pay the price for their crimes in a free society.

That said, the fact that defamation and insult are not, in themselves and independently considered, criminal acts does not mean they may be committed anywhere. This is much like how masturbation or perverse sexual acts, including exhibitionism, may be legitimately performed in one’s home or in a private space, yet are somewhat inappropriate in the middle of a street or a park. The owner of an internet website may, through terms of service, prohibit the posting of so-called malicious comments containing defamatory or insulting content. For example, Naver News, once regarded as a mecca for malicious comments, temporarily abolished comments in its sports news section in August 2020. Groundless disparagement of another person’s honor or social reputation is generally inappropriate by common sense, and therefore, in a free society where private property is thoroughly protected, it is actually more likely to be subject to voluntary and healthy self-regulation than in the current statist society.

Original title: 명예훼손죄와 모욕죄가 폐지되어야 하는 이유

Author: Kyeong-hun Kim

Date: 2021-12-28

Source: https://www.cfe.org/bbs/bbsDetail.php?cid=free_opinion&pn=9&idx=24467