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Post 20

Saturday, August 26 - 9:53pmSanction this postReply
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Speech of any kind, regarding any subject, does not deprive one hurt by that speech of the freedom to choose and act. So speech could never be properly judged to be criminal.

 

There is some question in my mind about the issue of defamation, in which Jones lies about Smith, thereby hurting Smith's reputation--an act that could be costly to Smith. A reputation is thoughts of other people about someone. Jones doesn't own the thoughts of other people, so from this angle Smith has no liability to Jones, who doesn't own his reputation. If Smith lies about Jones doing things he didn't do, Jones can try to persuade those whose opinions are important that Smith is a scoundrel. Smith could end up worse off for his defamation. Defamatory claims would tend to command less attention and influence as a result of the ongoing process of proving truth, and refuting liars, in cases where truth is important enough. 

 

When defamation is treated as a tort, someone can be sued for defamation for telling the truth about another person, but having insufficient evidence to persuade a judge or jury. That fact doesn't demonstrate that defamation is not wrongful and torteous, but it illustrates the fact that speech is expr3ession of ideas, concerning which people are mistaken a lot. So then the issue comes down to establishing the malicious intention of the defamer. 

 

From an opposite angle, one's reputation is the opinions others form of one's character, based on one's choices and actions over time. A good reputation is earned; so is a bad one. If defamation is treated as a tort, then one's reputation is presumed to be property earned through the exercise of one's choices. Just as one is entitled to the consequences of one's actions, through the institution of private property, one is also entitled to the consequences of one's actions through the opinions others form, based on what they've seen and heard. If the defamer lies, that's a kind of fraud. 

 

For the present, I tend to think that defamation should not be a tort, because the thoughts of other people do not belong to the defamed; and because people are responsible for the conclusions they reach about people, things and events. If they believe a liar, they do so without good evidence; do the opinions of such people really matter that much? 



Post 21

Sunday, August 27 - 12:01pmSanction this postReply
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I thought more about the puzzling issue of defamation after I wrote the previous post, trying to make better sense of it. There is another explanation that might explain defamation as properly conceived as tort, despite the fact that people initiate and own their own thoughts and ideas.

 

The basis for patents is the homesteading of a particular discovery by the inventor. Discoveries pertaining to some particular thing are finite and limited, so they have value and can be claimed by the first to make the discovery. The same of true of mining claims and real estate: both are limited, valuable, and under proper law available exclusively to the first to discover and develope. Both depend for their utility on location, and the first homesteader to appropriate a particular location, in an appropriate way, owns it. The same reasoning can be applied to inventions that we try to protect with patents.

 

I got off on that tangent defending intellectual property, because it may be true that actors own their reputations, in the sense that they create the conditions for ideas others hold about them. The ideas Smith has about Jones belong to Smith, yet Jones created the conditions of Smith's conclusions about Jones. As the initiator of the conditions on which Smith has formed his thoughts about Jones' character, Jones could be seen as owning an aspect of Smith's thoughts, by contributing to their causation.

 

It seems wrong that Jones could act well, to which Smith would tend to respond favorably, but then Johnson maliciously lies about Jones with harmful consequences. 

 

This is a subject that needs careful thinking and working through. 



Post 22

Monday, August 28 - 12:09amSanction this postReply
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Mark, I think you are on the right track with property rights.  Think about vandalism, like someone painting graffiti on the side of another's house.  The vandal can claim to have freedom of speech, but  that doesn't include marking up the other's walls.  The vandal has the right of expression, but if that expression damages the property of another it should be subject to either criminal or civil redress (or both).  



Post 23

Monday, August 28 - 11:20amSanction this postReply
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Yes that's an anology, provided one first proves that an actor owns his reputation. I don't know how to demonstrate the idea of "property" in the ideas of other people, but someone else might be able to figure it out. 

 

On the other hand, if it were true that there is no right to a reputation unpolluted by malicious lying, then people would rapidly adjust. They'd learn to think for themselves, weighing accusations about another critically; so that harsh lies would tend to be more often discounted or dismissed. 

 

We're talking about unproven accusations  by gossips and ideological hotheads, mostly.  Can't sue them all and most defamaotry speech goes unpunished. 

 

But I don't want to gloss over this, so if the second line of reasoning could be developed, good.



Post 24

Monday, August 28 - 12:00pmSanction this postReply
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Fraud is also about words.  a con man is free to say that he has land on a river and he might sell using with phony photos of land along a river and he might have accomplishes that appear to be reputable 3rd parties unconnected to the con man act and they act as verification.... and in that fashion, defraud a person of their money.  We make laws that let us lock the con man up, NOT because he has no right of free speech, but because he gets another's property without their choice.  It is the by-passing of choice and either damaging property (vandalism or defamation) or by-passing choice and taking property (theft, burglary, or fraud as examples).  To me, those are the two elements that should be in a law such as to represent protection of individual rights.

 

If you swing a gun around wildly and it goes off and it hits someone, the prosecution does NOT have to establish that you were malicious or that you had intent.  Only that you were the actor, that damage was done, and that a reasonable person would have know that such a behavior carried a risk to others.  The person damaged did not choose to be damaged.  Same with defamation, in my opinion.  You can think whatever you want of someone, but if you say or write it in a public fashion, and a reasonable person would surmise damage might occur from others hearing or reading it, then it had better be true.  It is isn't true, then the person should be able to establish a monetary value for the damage and collect.



Post 25

Tuesday, August 29 - 7:32amSanction this postReply
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Fraud is not about words; it is the act of takiing value from someone--wealth in some form--in exchange for a promise to deliver a value in the future, but then breaking the promise without returning what was received in payment. 



Post 26

Tuesday, August 29 - 7:43amSanction this postReply
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Steve, I'll get back to you on this; I can't work copy and paste. I think I have probably figured out why defamation violates one's rights, step by step. Later soon.



Post 27

Tuesday, August 29 - 9:52amSanction this postReply
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Mark, I don't think you read what I wrote carefully enough.  We don't disagree.  I said that fraud was about words, but then explained that it was only because the words were used to create a false promise and that the right violated was the theft of property.  But the words are means by which it starts.  They are the means by which the victim is deprived of their choice.  Fraud is done via words, the way an armed robbery is done via a gun, the way defamation is done by words.  Because words are used, does NOT mean the words should be outlawed.  Just as the use of a gun in a robbery doesn't mean guns should be outlawed.  



Post 28

Tuesday, August 29 - 7:53pmSanction this postReply
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This is an interesting conversation.  So, at any time during The Fountainhead, did Roark have a defamation case against Toohey?

 

(Edited by Korben Dallas on 8/29, 7:54pm)



Post 29

Tuesday, August 29 - 8:30pmSanction this postReply
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Sorry if I misinterpreted your remark about fraud starting with words.

 

Here is why I think defamation constitutes a violation of the rights of the defamed individual. To begin, one's reputation consists of ideas held in mind by other people about one's character. Their ideas about one's reputation, or about anything else, belong to them.

 

The ideas they hold about Jones' moral history, his character, are partly inspired by Jones' actions. Obviously, their assessment of Jones' moral fitness is also based on other factors unrelated to his actions, depending on the person judging and his ideas about what does or does not constitutes proof, what is moral versus immoral, and etc.

 

Over time, the choices of Jones define his moral character, because he controls his choices. Jones' character is caused by him, defines him, and therefore belongs to him alone. (This point simplifies by skipping over trauma or other factors that sometimes reduce the capability of choice.)

 

If Smith lies about Jones' behavior, then people who believe the lie form conclusions about Jones' character that Jones did not cause. What did the liar take from Jones? He did not damage his character, because only Jones can do that. Smith changed the impressions other people form about Jones' character, by lying about the conditions of their evaluation of Jones. 

 

Jones owns the conditions of public perception of his character, because he is the author of his own history. That moral history, his character, is important and (potentially) valuable in pursuit of life, because people estimate character to judge whether or not they ought to enter into a relationship with another person. Everyone derives value from peaceful social exchanges, without which flourishing would be impossible.

 

Therefore, when Smith defames Jones, he vandalizes the conditions people refer to in judging Jones--conditions he created and that therefore belong to him. How others evaluate those conditions is up to them, but the conditions of Jones' history are his exclusive domain--an extension of his life.

 

Vandalism of course is a violation of Jones' rights. 



Post 30

Wednesday, August 30 - 8:57amSanction this postReply
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Korben,

 

The law differs, of course, from the moral right it is intended to protect.  I'm not familiar enough with the law, but I have heard that there is great difficulty in winning a defamation case.  One requirment is that there be malicious intent.  Just yesterday day Sarah Palin's case against the NY Times was thrown out.  On the facts, the Times was provabley wrong, and harm could have been shown, but the judge decided there was inadequate evidence that the Times had malicious intent.  (Hell, I'd have thought that their past articles would have made clear that they hated her and intended to damage her).



Post 31

Wednesday, August 30 - 10:01amSanction this postReply
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Mark, I don't disagree. 

 

I think that the elements of defamation make sense (despite the fact that judges don't seem to do a good job applying them). 

 

There must be damage (and a public statement trashing one's reputation should constitute damage on its own and not require some evidence of a decline in income or some other loss).  As always, truth is an absolute defense against defamation.  It the character trashing was a matter of speaking the truth, it wouldn't be seen as damaging no matter what change it wrought in the financial (or other circumstances) of the person trashed.

 

By "malicious intent" I understand the simple concept of an action done with the knowledge that it would cause damage, as opposed to by accident.  (That is what makes it vandalism to purposely make marks on someones car as oppossed to accidentily scraping it with your car).  If someone says something that does damage to another's reputation but they didn't mean to, then they may still be liable for some corrective action to make things whole, but it would be like a car accident, not purposely running into another's car.

 

So, to be defamation:

 

1.) the statement must be provably false or without any reasonable support as true.  (Taking away someone's good character is a kind of theft, while exposing someone's bad character is like a gift to the listeners).  When true, the only person whose choice has been diminished is the choice of the person with bad character to continue to act under a false reputation.

 

2.) And it must be damaging (either per se - like character trashing, or through proven secondary loses - like money, or a job, etc.) If a crook is called a crook, and thus exposed, he can't claim that he was damaged because it diminished his opportunities to steal!  You can't have taken from you, what you never owned.
 
3.) And a reasonable person would know that such a statement would be damaging and do it anyway, knowing it wasn't supported (which would be enough to constitute "malicious intent" as I see it.)  In criminal law, there sometimes are differences between crimes done with intent, and the same action without intent.

 

There is also the difference between criminal actions and actions that can only be dealt with in civil court.  If I run into your car on purpose, I should be charged with some kind of criminal act for damaging your property on purpose.  If I hit your car by accident, but I have a history of driving in a careless fashion, it still might be a crime, but a lessor one.  If I am usually a careful driver, but hit your car by accident, then there is still damage, but it would be made right in civil court not criminal court.  Civil and criminal law should all arise from individual rights.  An individual right is an action one owns (ie. has a moral right to take without permission).  Laws are intended to define those actions that must not be taken because they would interfere with another person being able to take an action they have a moral right to take without permission. 

 

I have a moral right to drive my car down the street, but not to drive it into the property of another.  The law defines the different kinds of driving acts that are prohibited.  A civil court will look at any instance where there might be damage to a person's property caused by another.

 

Unfortunately, no level of perfection in the definition of rights or their codification in the law will overcome the negative effects of a culture that is in the process of becoming stupid and/or dishonest.



Post 32

Wednesday, August 30 - 6:29pmSanction this postReply
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In the conversation of how ideas are being considered property, I would point to how patents and copyrights work, that there has to be a tangible component for the idea to be considered intellectual property.  A person puts the idea down on paper for the patent, a person submits copy for a copyright.  So you can't patent or copyright ideas directly, there has to be something to be considered as property.

 

In defamation, it does have to do with property rights, and I would say the violation would be more of how it impacts the person to obtain property.  I think the mention of conditions are important, defamation happens in a context, so I would say the context is an environment.  Using the OED definition for environment, "1. The action of environing; the state of being environed. 2.a. That which environs; the objects or the region surrounding anything.  2.b. esp. The conditions under which any person or thing lives or is developed; the sum-total of influences which modify and determine the development of life or character."

 

So considering that defamation happens in an environment, where there are conditions within the environment, and causation would need to be shown.  It is still an indirect form of violating property rights, but it is a violation.  Tough to prove as Steve has said.  I think Roark had a case against Toohey but it would have been tough to prove.  He would have had to establish the environment, then show how Toohey's words impacted his ability to land jobs, establish causations.

 

In a work situation with an employer, it is easier to prove character defamation if a person gets demoted or fired for it, their paycheck becomes the property.  It would seem difficult to prove if defamation caused a person to not get a promotion.  And probably more tough if the defamation didn't involve a property loss through a paycheck.

 

(Edited by Korben Dallas on 8/30, 6:36pm)



Post 33

Wednesday, August 30 - 10:25pmSanction this postReply
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As I see it, there is an important difference between one's reputation, and one's moral history of behavior. That distinction is important, because without it, there is no basis to argue that defamation constitutes a violation of the rights of the defamed. 

 

If one ignores that distinction, the argument against defamation centers around harm done to the reputation of the victim, which inflicts costs on the victim. But the definition of reputation is ideas other people hold in their minds about the moral fitness of a particular person. Whatever the soundness or unsoundness of those ideas, that encompass prior ideas about epistemology and ethics, as well as the facts of someone's history, those judgement do not belong to the person being defamed. Without the distinction, the defamed would have no basis to claim her rights had been violated, because people are entitled to reach their own conclusions about her reputation.

 

However, if one accepts the distinction, then the basis for defamation as a rights violation comes into focus. The ideas people accept as relevant to judging another's moral fitness include, but are not restricted to, the facts of another's history. If people accept the defamers' account of facts, then the rights of the defamed have been violated. The reason is the defamed person owns her history, in the sense that her history, if it is acceptable or even good, is useful and valuable in social exchange. If she has an acceptable or even good history of behavior, other people sensibly assume she is okay to have certain kinds of dealings with. 

 

So although she has not written and published her memoirs or sold rights to a film maker, products that would entitle her to copyright protection, she does own her own life. As such, she owns her past actions, insofar as they serve as the present conditions others use to judge her. She does not own the conclusions others form about her, but she does have a right to her own moral history, because she created it and it may have value. 

 

If someone lies about her past behavior, and if people believe the lie, that defamation damages her history, somewhat as a vandal damages physical property. To lie about her history is to expropriate and falsify the moral standing that, for better or worse, she earned.

 

A reputation is the thoughts of other people about someone. One's moral history is facts created by one that others use as conditions of their evaluation of that one. Because people rely on their moral history in dealing with other people, falsifying or vandalizing it reduces the victim's freedom to act and interact.

 

If someone can point out problems with my reasoning, I'd appreciate that. I probably won't take time to respond to arguments I think are lousy, though. I'm getting pretty cranky. Thanks.  



Post 34

Thursday, August 31 - 10:20amSanction this postReply
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Lousy argument?  Mark, you're on lousy premises.  I know exactly where you are wrong in your thinking, but I won't be taking the time for you.



Post 35

Thursday, August 31 - 11:59amSanction this postReply
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Mark, I understand the distinction you are making - and that a reputation is a relationship kind of entity.  It can only exist (in an active fashion) inside the mind of a person and it is also about some person or persons (specifically their history and their personal nature).

 

I can think about my character, my moral history, etc.  And I can think about my reputation with others, and others can have their ideas about my character, etc., and one could abstract or summarize those ideas of others to say what my reputation IS.  It is kind of wierd that I can talk about my thoughts about my reputation, another specific person's idea of my reputation, and my reputation in the world as a whole.

 

You said, "...the defamed person owns her history, in the sense that it is her history..."  I'm not disputing the underlying concept, but want to clarify an aspect of "ownership" - to own something is to have property rights in it.  Property rights are always about actions that can be taken relative to the object or entity in question without anyone's permission.  For example: I own my car (purchased it outright) and therefore I have the right to sell it.  If I had leased the car, I would still "own" some things about the car.  I would have the right to drive that car (an action relative to that piece of property) as long as I stayed good on my lease terms.

For the points you are making, you'd need to discuss the actions that can be taken by the owner of the property in question.  Only then can you say what would constitute a violation of that right.

 

You said, "...she does own her own life."  Yes, but whenever Rand discussed the right to our life, she was careful to put it in the context of the actions that constitute life - breathing, being able to exercise one's choice, pursuing ones values, etc.  I'm not seeing how one "owns" their past actions.  My past actions are "Mine" but that is in the sense of who did them, not in the sense of who holds moral or legal property rights to them.  That is something else and would need more said to be established.

 

Despite my nit-picking, I think you are on the right track.  There must be property rights involved.  And defamation is akin to vandalism - damaging someone's property. 

 

The hard thing to deal with is that "reputation" is not just in the head of one other person, but possibly in heads of a great many people and held very differently from one person to another.  In this sense it has a kind statistical existence.  For example, what is the reputation of Ayn Rand?  She isn't alive so her defamation property rights don't exist, but she does have a reputation and one that varies from person to person.  That makes reputation a thing that is hard to nail down metaphysically and epistemologically.

 

Defamatinon is an act.  It is committed by a specific person and there is a living person claiming to have been damaged by the defamation.  Character assassination is just one kind of defamation.  You are on the right track to say that "reputation" in the eyes of third parties is somehow where the damage is located.  But perhaps rather than point to an "ownership in past acts" it would be more a loss of liberty.  There is a kind of universal liberty we can speak of (Everyone has the right to not be imprisoned if they have not violated any one's rights).  But we each have a degree of earned liberty - In a sense I have earned the right the good opinions of thirdparties to some minor degree as the product of my past efforts.  For example, say Steve Jobs were still alive and said he was going to release a new kind of gadget.  He, because of his past successes, has earned a certain level of market interest in what he says.  But if someone made up a lie that his claim was false because he had started taking mind-altering drugs they would be taking away a market share that he would otherwise have earned.  Kind of like when someone stops a person from travelling a specific public route to get to work, they might be causing a damage that won't happen till long after the blocking (e.g., missing an appointment by being late that turns into a lost revenue.)

 

I think this is what you were saying when you said that people rely on their moral history in dealing with other people being reduced by defamation and reducing their freedom.  We put 'money' into our reputation bank with today's moral acts, and if someone wipes out some part of that account, there will be less there to draw on in the future.  We have been vandalized.



Post 36

Thursday, August 31 - 12:45pmSanction this postReply
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Thanks Steve for your thoughtful comment. This is a tricky and confusing issue.

 

Maybe actors can't "own" their moral history, as property. 

 

The defamer tries to manipulate and trick other people into restricting the freedom of the defamed, by witholding cooperation they would otherwise extend to the defamed. That effect reduces the choices available to the defamed, which amounts to taking away part of his freedom. 

 

Defamation involves accusing someone of either wrong doing or otherwise bad behavior, that the victim did not do. So the defamer tries to punish his victim, not for what the victim did, but for what the victim did not do. 

 

The defamer tries to get others to punish the victim in response to his maliciously false accusations. In a real sense, defamation is fraud. The defamer promises truthful reporting to those he tries to manipulate; those who believe his lies act on them in ways that hurt the victim. They act against the victim, because they want to avoid dealing with an unreliable or reprehensible person. But acting on the basis of a lie is costly to the manipulated as well as to the victim of defamation, because the manipulated forego opportunities for cooperation with the victim that would have benefited them. The liar promised truth in exchange for altered behavior by those he manipulates; the liar gets what he bargained for, altered behavior, but did not deliver what he promised, truthful reporting.

 

So the liar commits fraud against those he manipulates.

 

I got started on this long tangent, because I wanted to understand defamation, while recognizing the fact that one can't own ideas held by other people. I hoped I had solved the problem, by distinguishing between reputation--ideas of others about one's moral fitness--and the conditions of their evaluation that are caused only by the person being evaluated. Very confusing to me.

 

My half joking-snarky comment about not responding to dumb arguments was motivated by my guilt in spending too much time on this, when I have a bunch of important stuff I'm neglecting.  



Post 37

Thursday, August 31 - 12:50pmSanction this postReply
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I understood Mark's supposed "distinction" as well, and never had a problem with that.  For the record, my post #32 was not attacking Mark in any way, and I understand this topic quite well.



Post 38

Thursday, August 31 - 1:06pmSanction this postReply
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My half joking-snarky comment about not responding to dumb arguments was motivated by my guilt in spending too much time on this, when I have a bunch of important stuff I'm neglecting.

So you weren't joking, but only half-joking?  And now it is no longer a lousy argument, but a dumb argument?

 

Mark you can KMA.  And I don't think you understand the topic yet.

 

(Edited by Korben Dallas on 8/31, 6:29pm)



Post 39

Thursday, August 31 - 2:27pmSanction this postReply
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Well said, Mark.

 

Here is a fun example of something that isn't defamation, but is close.

 

In the dark of night, a person sneaks over a fence into the parking area for cars that will be auctioned the next day.   He uses a crayon to mark on the side of the car he plans on bidding for, "Has Transmission Problems."

 

Because of that false statment he wins the car for a much lower bid than it would otherwise have received.  He violated property laws starting with trespass, then with the vandalism of the car, and then he defrauds the auction house owner of the revenues he would otherwise have earned.  And, like defamation, he lied about the 'character' of the car, changing its reputation in the minds of others, and that limited the freedom of those involved with the sale when it happened.



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