Block on Defamation

I’ve always been against defamation law (libel, slander, etc.). I assumed it was the plumbline libertarian position, even though many libertarians and most Objectivists seem to favor reputation rights. As I wrote in “Defamation as a Type of Intellectual Property”: ¹

For example Objectivist David Kelley, who is also a pro-state minarchist and even pro-taxation (unlike Rand) ² and of course pro-IP ³
once debated civil libertarian Nat Hentoff on defamation and took the pro-defamation law side. ⁴ Hentoff, to his credit, opposed defamation law. Hentoff’s argument was rooted mostly in “pro-free speech” concepts. It’s not a horrible argument, but it doesn’t get to the root of the issue.

I was against defamation law even before I was against IP. I eventually saw that IP was unjust and came to see that the reputation rights protected by defamation law is just another type of IP right, similar to trademark. And perhaps this is why the pro-IP types are mostly for defamation, and why Walter Block, one of the first, along with Rothbard, to oppose defamation law, immediately agreed with my case against IP.  (See “A Tour Through Walter Block’s Oeuvre”, n.40.)

In my fulminations against IP and now defamation law, it has become clear to me that most libertarians are wrong or have not thought much about defamation law, and that the case that seemed clear to me was not so universally held. It was basically Block and Rothbard. (This is another reason I believe Rothbard, who was somewhat opposed to patents but confused about IP, ⁵ would have come around to our anti-IP position had he lived longer—he died in 1995, just as I was starting to write against IP in that same year, ⁶ just as Rothbardians Hoppe ⁷ and Block did.)

In any case, as far as I can tell the main opponents of defamation law are Rothbard and Block, and now me, and a few others like Gary Chartier and Ryan McMaken (see n.41 of the defamation piece). ⁸

So it comes as a surprise that Walter’s recent article “The Reduced Rights of the Public Figure” makes an odd argument that public figures should have the right to damages for libel. ⁹

In this piece he repeats his (quite correct) argument that there can be no rights to a reputation and that libel law should be repealed. As he says, “a person’s reputation consists of the thought of other people about him. Since he cannot own these other folks, nor their thoughts, paradoxically, he cannot even own his own reputation.”

But then he argues that it is “profoundly unfair and unegalitarian” that it is more difficult for “public figures” to succeed in a libel action, due to the 1964 US Supreme Court libel case New York Times v. Sullivan, under which a “public figure” who is defamed

must demonstrate, in addition, that the falsity was purposeful, not accidental, and that “it was made with the knowledge that it was false, or else with reckless disregard for its truth or falsehood.” Thus, it is far more difficult for a public figure to prevail in a defamation lawsuit than other, lesser, mortals.

But as Walter opposes libel law, it is not clear why it violates the rights of are violated if the find it more difficult to succeed in a libel case. Who cares if this is “unegalitarian” or even “unfair”, or if it violates some arbitrary provision of the statist Constitution, ¹⁰ such as the “equal protection” clause of the unconstitutional Fourteenth Amendment? ¹¹ Libertarianism does not demand that all unjust state criminal laws be expanded in scope cover as many plaintiff’s as possible.

It is good if anyone loses the right to sue for defamation–just as it’s good if anyone loses the right to get welfare, or government contracts, or the right to acquire copyright or patents—especially powerful and public figures who are often those most likely to sue people for defaming them. After all, when you criticize someone, often it is a public figure who you want to criticize! So Walter is just wrong, in my view, to want to make it easier for people to sue for defamation. We should be arguing to make it harder for non public figures to sue for defamation, not to make it “equally easy” for public figures to sue for defamation, given that defamation law is evil, unjust, and unlibertarian.

Now Walter himself has come up with contorted rationales to justify his own use of libel law, even though he opposes defamation and libel law, as when he sued the New York Times. As he argued,

How … can I justify suing the New York Times for libel? It is simple. The libertarian case against suing for libel applies only to innocent people, and this newspaper does not at all qualify. Rather, this organization is a member in good standing of the ruling class, and all bets are off for criminals of that ilk. ¹²

I disagree with this “they are part of the state” argument. There is no end to this slippery slope. ¹³ The goal should be to reduce the state’s power and the scope and application of its unjust laws, not to expand these laws, much less to classify some mostly-private citizens or companies as “part of the state” as a some sort of justification for the state using its laws against them.

On Defamation Law Making Libel More Potent and Reputations Less Secure

One concluding note: Walter makes the point that not many others have made, that ironically, libel laws, counterintuitively, make libel more potent:

Here is another paradox. Reputations might well be safer, not more endangered, if these laws were repealed. Right now, people operate under the aphorism “where there is smoke, there is fire.” If Smith attacks Jones, there must be something wrong with the latter.

However, in the absence of these laws, and present judicial interpretation, allegations would come so thick and fast that they would lose their power to alone besmirch reputations. Then, in order to ruin them, you would have to prove something negative about your targets, not merely assert it.

I have made this point before but few others have. For example:

As I said in PFS panel discussion in 2015, ¹⁴

Let me say one more thing on reputation.  Because there is defamation law now, I think it makes the public more gullible and more credulous because if someone tells an outrageous story about someone, which is a lie, people are more likely to believe it because they figure, well, if it wasn’t true, then they would have been sued for defamation.  So in a world where there were no defamation laws, people would – there would be more – people would take these things with a grain of salt because they know people are free to lie basically.

In a pair of tweets (1, 2):

And by the way, if there was no trademark or other forms of IP law, people competing with you would not have as much of an incentive to be shady about it, it would be legal so they could just use their own name. It’s just like how defamation law makes defamation more powerful, because if someone lies about you, and you DON’t sue them for defamation (because you CAN) then people assume the lie must be true. If there was no defamation law, ppl wd not be as willing to believe crazy claims and lies, since they would know people have a perfect right to lie.

Or this tweet:

I think a better argument could be made for defamation/libel law—people assume assertions are true if you don’t sue about it. Abolish libel law!

1. “Defamation as a Type of Intellectual Property,” in A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann & Stephan Kinsella (Houston, Texas: Papinian Press, 2024). [↩]
2. See Kinsella, “David Kelley on the Necessity of Government,” StephanKinsella.com (May 22, 2016). [↩]
3. See idem, “Letter on Intellectual Property Rights.” [↩]
4. See “Nat Hentoff and David Kelley on Libel Laws: Pro and Con” [Free Press Association Event, 1986], The Atlas Society (Aug. 15, 2010; YouTube). Jacob “Bumper” Hornberger also disappointingly supports defamation law. See Kinsella, “Jacob Hornberger on Defamation and Alex Jones,” Freedom and Law (Substack) (Oct. 22, 2022), responding to Jacob G. Hornberger, “Alex Jones Got What He Deserved, Part 1,” Future of Freedom Foundation (Oct. 17, 2022). [↩]
5. Kinsella, “The Problem with Intellectual Property,” Part III.C.2. [↩]
6. Roderick Long: Bye-Bye for IP; Roderick Long’s Classic Demolition of Intellectual Property; Stephan Kinsella, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), p.403 n.10, also n.65 re Roderick T. Long, “The Libertarian Case Against Intellectual Property Rights,” Formulations (Autumn 1995). [↩]
7. Hoppe on Intellectual Property. [↩]
8. Update: the comments indicate Skyler Collins has argued against defamation, though I have not reviewed this yet: Skyler J. Collins, “Defamation is Not Aggression, Ergo, Not a Crime,” Everything-Voluntary.com (Sep. 9, 2021); idem, “How to Deflect and Pass The Burden of Proof,” Everything-Voluntary.com (Sep. 7, 2021); idem, “Defamation Lawsuits are State-Sponsored Aggression,” Everything-Voluntary.com (May 31, 2022). [↩]
9. Walter Block, “The Reduced Rights of the Public Figure,” Walter’s Newsletter (substack) (Jul 13, 2025). [↩]
10. Rockwell on Hoppe on the Constitution as Expansion of Government Power. [↩]
11. See The Libertarian Case Against the Fourteenth Amendment and other posts on libertarian centralism. [↩]
12. Walter Block Defends His Libel Suit Against The New York Times; A Libertarian Analysis of Suing for Libel. [↩]
13. Other libertarians also seem argue this way too; see, e.g,  Randy Barnett, “What’s Next for Libertarianism?” [↩]
14. KOL190-2 | Part 2: On Life without Patents and Copyright: Or, But Who Would Pick the Cotton? — Panel Discussion, Hoppe, Dürr, Kinsella, van Dun, Daniels (PFS 2015). [↩]