The Ethics Of Liberty - Knowledge, True And False
The Ethics Of Liberty by Murray Rothbard
Rothbard continues to analyze individual rights as property rights in order to explain what rights truly exist. In this chapter he applies that framework to knowledge. This isn't as straightforward as dealing with things that are basic physical property because even though knowledge, thoughts, lies, and slander are not physical things, they can still have physical consequences.
He starts by analyzing the situation when someone lies about another person. Does Smith have the right to lie about Jones? Looking strictly at property gives a clear answer. Smith owns his own mind, his mouth, and a smartphone. Therefore he has the right to use his own property to lie. He can speak, send out a letter, announce over a radio station he owns, etc. Smith has done something immoral but his action should not illegal. In general, it is legal to lie in our day and time, so Rothbard isn't saying anything controversial here.
However, he applies this same logic to laws against libel, slander, and blackmail, then supports his argument by saying we must focus on the objective facts of the actions and property rights.
"illegality should depend not on the motivation of the actor, but on the
objective nature of the act."
I agree. However, the effect of the speech act is also objective and needs to be included in the analysis.
Before I get into the details of my critique I need to remind the reader that Rothbard started the book by calling for a set of ethics grounded in natural law. Rights are simply prerogatives that exist that allow a person to live according to natural law. Further, Rothbard defined crimes as natural law violations that harm other people. He considered vices to be natural law violations with no victim. Then he claimed that crimes should be punished by law and vices should be unpunished.
Back on topic. I agree that lying shouldn't always be illegal, even if it is meant to harm someone else. But calling for the elimination of these laws ignores the fact that the lies of slander or libel create victims. Therefore, by reanalyzing what he wrote, we should conclude that libel, slander, and blackmail (no lie involved here) should be illegal, at least in some cases. While it may be difficult to determine which cases should be classified as crimes, this aligns much more closely with a standard of natural law and property rights. Honestly, I would rather my enemy punch me in the face, than for him to get me fired from my job using slander or exposing an embarrassing secret to my employer. I may not own my own reputation, as it only exists in the minds of other people, but the purposeful destruction of my reputation by my enemy is a clear act of aggression. Therefore it should be considered a crime in some instances.
The next section covers claims that people have a right to privacy. Reframing the issue as a property right helps one see no right to privacy exists per se. You don't have a right to restrict others from divulging information they know about you. But you do have a right to restrict access to your property. Therefore, you have the ability to protect your privacy by restricting access to your property. Rothbard includes wiretapping as an example.
"Wiretapping is properly a crime not because of some vague and woolly
'invasion of a 'right to privacy',' but because it is an invasion of the property
right of the person being wiretapped."
I would apply this to wireless communication too. It may be harder to prove ownership of an electromagnetic (EM) wave, but we don't own the Copper phone cables that are tapped. The phone company does. In both cases the only property you actually own is the communication itself. There is also a reasonable expectation to pass information only to your intended audience. If you don't agree with this you also have no basis for considering it a crime to skim credit card information. In the act of skimming, the physical card has not been stolen or tampered with. The information carried by the EM wave and maybe a portion of its energy has been stolen, but the wave has not been stopped or destroyed. In this era, information has taken on more importance and more closely resembles a tangible thing. If libertarians are going to propose changes to our legal system, we must understand the details of these electronic transactions. The same lesson would apply to laws like the Patriot Act. The government does not invade any citizen's physical property in order to enact it. The only way to protect yourself from such invasions and theft is to consider the information communicated as some kind of property. You could propose that the mode of transferring the information is property, which is either near field or far field electromagnetic radiation, if you can't accept that information itself is property.
The property rights concept also protects whistleblowers from legal retaliation. Journalists should not be coerced to give up the names of their sources because the public does not have a right to use the person or property of the journalist. However, we must consider how this affects FOIA requests. Does the government have a property right to withhold information from citizens? I would say no. First, governments don't have rights. Second, FOIA laws are consistent with the natural law, natural rights framework because they are used to expose government crimes.
Another important application of property rights to knowledge is on the subject of Intellectual Property (IP) protection. Rothbard had already defined knowledge as property of the mind. Then knowledge is stored on physical property like paper, a cassette tape, a computer hard drive, or a cloud storage account. Because the storage media is his property, an owner can provide the knowledge to others or withhold it as he sees fit. Following simple logic this rejects the idea of copyrights and patents, because once a product is sold to a customer, the knowledge inherent within it is now the rightful possession of the customer. Trade secrets don't have the same problem and therefore fit more easily into a libertarian property rights system. Though to make it fit better into libertarian theory, you would need to increase protection requirements and redefine what constitutes a violation.
However, simple logic isn't sufficient. In order to make accurate conclusions about copyrights and patents, we must spend more time thinking about the phrase "as he [the owner] sees fit" from a sentence in the paragraph above. Without driving the argument to its ultimate conclusion, Rothbard still gives a rational basis for libertarian IP protection laws.
"an exception to the right to use and disseminate the knowledge within
one's head: namely, if it was procured from someone else as a conditional
rather than absolute ownership."
The concept is analogous to a nondisclosure agreement (NDA), where you agree to show a person your knowledge under the condition that they can't divulge that knowledge to anyone else. Applied to patents and copyrights, the condition of sale can be that the buyer can not sell or distribute any knowledge about the product. The condition should not ban customers from reselling the object in a yard sale, but it would prevent customers from making new copies for sale or selling product design information to another producer. Rothbard even explicitly approves of something called a common law copyright.
"suppose that Brown builds a better mousetrap and sells it widely, but stamps
each mousetrap 'copyright Mr. Brown.' "
There would still be some work to flesh out a complete libertarian IP protection system. But it is clear that we could construct solutions which better conform to natural law and property rights ideas than today's system. For example, libertarians already prefer to replace government environmental regulations with private contracts and tort law. For IP it shouldn't be hard to determine who the inventor is with today's documentation systems. From there better rules can be made to determine what constitutes an invention and what protections should be given to inventions. Any libertarian system should maximize incentives to invest, invent, and bring new products to market. The current IP system does none of those things well and allows for many abuses.
Looking back, I think Rothbard is correct in his rejection of supposed rights like a right to privacy or a right to control one's reputation. However, his justification for the legality of libel, slander, and black mail has serious problems that I have identified. Another problem with his defense is that he bases it on a utilitarian argument. To that end, he claims that with those things made legal, there will be less scandalous information released to the public, which better serves those trying to hide their secrets.
"We can, of course, readily concede the gross immorality of spreading
false libels about another person. But we must, nevertheless, maintain
the legal right of anyone to do so. Pragmatically, again, this situation
may well redound to the benefit of the people being libelled."
He also says that without blackmail, libel, and slander laws; the public will be less likely to believe public scandals. With those laws in place the public will see which ones are true and untrue based on which ones go to court. Without court cases, he claims that the public will be more skeptical and demand more evidence. This is just speculation though. Who knows how the public would respond.
The more important point is that at the beginning of the book Rothbard explains that utilitarian arguments are not appropriate for developing a system of ethics. There must be an objective standard to judge by. He chose natural law and (natural) property rights. Here he ignores his own standard. Keeping that standard shows that many improvements should be made, but wholesale elimination of laws regarding libel, slander, blackmail, and IP protection should be avoided.
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