Kinsella on Liberty Podcast: Episode 485.
My recent appearance on The Brownstone Show, Ep. 17 (twitter video).
From Brownstone’s shownotes:
Jeffrey Tucker sits down with Stephan Kinsella…libertarian attorney, author of the seminal 2001 essay “Against Intellectual Property“, and the massive treatise “Legal Foundations of a Free Society“…for a provocative discussion on why defamation (libel and slander) law should be rejected as just another form of intellectual property right.
Kinsella argues that reputation is not ownable property. What others think of you cannot be controlled or turned into a legal entitlement. Defamation law, like patents, copyrights, and trademarks, rests on the flawed idea that the state should protect intangible “rights” through force. He explains how these laws create chilling effects, perverse incentives, and actually amplify the harm of false speech rather than reduce it.
Topics covered include:
- Why intellectual property (including trademarks and defamation) is incompatible with true property rights and free markets
- The historical and common-law roots of defamation and how it morphed into reputation-as-property
- How the existence of defamation lawsuits gives lies more credibility (“If it weren’t true, he would have sued”)
- Free speech, threats, and the limits of state power
- Private alternatives: reputation markets, certification agencies, dueling culture, caveat emptor for information, and why a truly free society would be more (not less) regulated by voluntary rules
- Connections to patents destroying innovation (especially in pharma and software), NDAs, cancel culture, and the illusion of safety created by regulatory bodies like the FDA
- Why “buyer beware” should apply to both products and information in a free society
This is a challenging, nuanced conversation that questions deeply held assumptions about law, harm, honor, and reputation. Even if you initially disagree, Kinsella’s razor-sharp property-rights analysis will make you rethink how we handle speech, lies, and “harm” in the digital age.
Tweet:
👉The Brownstone Show: @jeffreytucker interviews @NSKinsella: Why defamation law is just another form of intellectual property—and why abolishing it would make lies less powerful, not more. Eye-opening take on reputation, free speech, and private alternatives. 🔏 pic.twitter.com/dY1JWagDoA
— Brownstone Institute (@brownstoneinst) April 9, 2026
Related:
- “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)
- “Against Intellectual Property“
- “Legal Foundations of a Free Society“
- “The Problem with Intellectual Property,” in Handbook of the Philosophical Foundations of Business Ethics, 2nd ed., Christoph Lütge & Marianne Thejls Ziegler, eds. (Springer, forthcoming 2026; Robert McGee, section ed.)
- On dueling: Libertarian Answer Man: Dueling, Stalking, Restraining Orders
Transcript below.
As Tucker mentioned to me: I seriously doubt that any podcast ever has made this crucial point, namely that market forces can be more ferocious regulators than federal agencies that have been set up for the purpose of providing legal cover for unsafe products. So this discussion breaks important new ground in understanding what the free market really is. I hope people make it all the way through—it’s a completely different take than I’ve ever seen.
My comment: This is a good illustration of the power of cumulative ideas. I feel like Patrick Swayze in the movie Road House: tagline: “Bustin heads and breakin’ hearts.”
Funny interchange:
Kinsella: You could imagine if there was not the litigious, legal industry of defamation lawsuits and it was not a legal thing. You could imagine private solutions would emerge. In fact, the private solution used to be, “I challenge you to a duel.” You besmirch my honor. But of course, the state has outlawed dueling.
Tucker: I keep imagining that there should be a resurrection of at least a rigorously constructed defense of dueling in history. I think it has gotten a bad name, actually.
Kinsella: Do you think you and I would still be around if dueling was permitted?
Jeffrey Tucker: Yeah. One of us would at least have a …
Kinsella: Kinsella and Tucker dead at 41.
Tucker: I am not that good a shot, and I am not sure you are either.
Stephan Kinsella: Right. I do not mean us either, you know?
Transcript
[Speaker names may not always be correctly attributed; blame Grok and ChatGPT, Gemini seemed to help]
Introduction to Stephan Kinsella and His Views on Intellectual Property
[0:10]
Jeffrey Tucker: This is Jeffrey Tucker, President, Brownstone Institute. I am very pleased today to have with me Stephan Kinsella, an attorney who is the author of a 2001 article called “Against Intellectual Property” and more recently, a large treatise called “The Legal Foundations of a Free Society.” He is one of the most important thinkers of our time, and I think he has had a huge influence on me.
At some point in the mid-2010s, because his article came out, I thought it was probably not correct. I thought it was wrong; at least I thought it was a distraction. Essentially, what the article says is that intellectual property is an illegitimate concept, that ideas cannot be commodified and turned into property, and that the attempt to do so is destructive of market forces, information flows, and society in particular. This pertains to copyrights, patents, and yes, even trademarks.
The thesis is shocking, and probably as you listen to this, you are thinking that cannot be true. Then nobody would have the incentive to create, and so on. These are the usual comebacks. But I promise you, if you think about it long enough, as I did for years, you eventually come to be persuaded. Because of that, I shifted in my own career to only publishing within the commons. There was, at some point in this period, an innovation of the copyright status that made available to publishers what is called Creative Commons, with a number of different licenses and terms of use.
So, in my own work, I embraced the Creative Commons license with only one provision of attribution. That has been, I think, a real key to the success of many of my own personal projects. Also, as a publisher, Brownstone only publishes in the commons. As far as I know, we are the only ones. There may be other nonprofits that do it, but I am not familiar with them. It is a completely different model.
One thing about this model is that it prevents conflicts between the publishers and authors. If an author does not like what Brownstone is doing, does not think we are marketing it enough, or does not like us anymore, they are free to take it back and go to another publisher. We are not holding anybody against their will, which prevents conflicts.
Normal publishers not only retain copyright but also tie that to distribution rights, which last for the lifetime of the author plus 70 years. This means that an author’s grandchildren are the ones who will be responsible for getting the work back in print at some point. Most authors have no idea what they are getting into when they enter into these contracts. It is actually quite sad.
The patent issue is another matter entirely. It has practically destroyed innovation in the software world and, unfortunately, innovation in many aspects of life has led to vast corporate cronyism, particularly in the pharmaceutical industry. There is an enormous amount of unspeakable corruption in pharmaceuticals as a result of patents.
Today, we are not going to want to rehearse all these arguments on this particular topic, although it is important to understand them as background. What we are going to do today with Stephan is discuss a much more difficult and related topic, which has to do with the issue of defamation. This is a major problem in the world of the Internet, where anybody can just go online and say anything about anyone.
The courts have always said that it has had, at best, very high standards for defamation in the case of public figures, and it hardly ever works to sue somebody for defamation. We have got a kind of defamation free-for-all going on. This is made much worse by the NDAs that are ubiquitous in the corporate world today, so that everybody is under some kind of non-disparagement agreement. This has provided a kind of a license for defamation on the Internet.
Stephan takes an unusual position. I think I am just going to use this interview to explore this a little bit and any other related areas. Welcome to the Brownstone Show. Stephan, thanks for coming.
Stephan Kinsella: Thanks very much, Jeff. Glad to be here.
Intuitions Behind Defamation Law and Connection to Property Rights
[5:44]
Jeffrey Tucker: Let us start with the basics. I mean, let me just say at the outset, it connects with a certain intuition, I think, in British law and just normal course of life that there is something wrong with defamation. You have to think about it this way: Would you rather have somebody steal a potted plant off your porch or have some major account smear you all over the Internet as an evil, terrible person in ways that you cannot contradict?
There is a sense in which it seems defamation can be potentially more injurious to the individual than, say, petty theft. So you recognize that, right? That is the source, I think, of defamation law.
Stephan Kinsella: Absolutely. I think that the intuition is that, a kind of rough approximation of the law is that the law is there to stop you from being harmed. It is to stop harm. That is it. Generally, acts of aggression harm you, which is why the law prohibits aggression and theft and things like that. Our general moral intuition tells us that there are things that are wrong and things that are right. Honesty is good and right, and dishonesty is wrong. So lying is wrong.
Those intuitions are not incorrect. But what we do in the law is identify a subset of things that are wrong that the law can regulate. Just because something is immoral or wrong does not mean it is going to be a crime or an offense under the law.
So it is true that if you lie about someone, it is wrong. You should not do it; it can harm them. But then the question is, is it the type of thing that causes harm that the law should recognize? Is it really a property rights violation?
The more subtle and precise understandings of property rights and aggression lead you to understand that fundamentally, the law is about protecting individual rights or property rights from aggression or trespass. They can only be violated from the use of force, which is why the kind of Ayn Rand idea was that you can only have a law that prohibits the use of force against someone. So then the question is,
Free Speech, Threats, and Limits on State Power
[8:14]
Jeffrey Tucker: Let me ask you to pause there. I just want to mention that I had a very interesting discussion with you yesterday concerning free speech and the exceptions to the idea of free speech. One is that you cannot make physical threats against somebody, is that right?
I mean, you cannot threaten somebody physically. You can. And that proviso is in there, right? You might be able to threaten somebody with something like, “I am going to expose you. I am going to ruin you. I am going to make your life a living hell,” but you cannot actually threaten violence against another person.
Stephan Kinsella: Yeah. The way to look at that is that, in general, we have an understanding that the state is dangerous. When you have the state empowered to administer criminal law and the legal system, because of the danger of the state, we have limitations on state power and constitutions. Some of those limitations are formed in the words and language of rights, but they are really just prophylactic limits on state power.
When the First Amendment says there is a right to freedom of speech and freedom of the press, it has exceptions. If you use your words to threaten someone, it has exceptions because it does not really mean there is an exception to your rights. It just means that the purpose of that right was there to limit the state in the first place.
So you say that there is a right to freedom of the press, and that just means Congress shall pass no law regulating it. It does not mean that sometimes your use of your speech or your words is not itself an offense or a tort.
If you want to be careful, you would say that our property rights are the rights to the physical integrity of our bodies and our resources, which means that no one is entitled to use our resources without our permission. That would be trespass. But then the question is how? What types of actions does this prohibit?
That means any action that is likely to infringe someone else’s rights. But of course, in our world, that can involve words. If I am the jailer and I say, “That guy away in his jail cell,” I am causing something to happen. By my words, if I am on a jury and I vote to convict an innocent person, I am participating in putting him in prison. If I am the leader of a firing squad and I say “Ready! Aim! Fire!” I am causing bullets to be fired. Likewise, if I am the president and I say “Drop a bomb over Nagasaki,” then my words are causing things to happen.
Just because we recognize that there should be rights against aggression and rights against trespass does not mean that anything you say goes. It is true that sometimes your speech can be limited. But then the question is, what about defamation and lies? Can the law prohibit dishonesty? Can the law prohibit lying? Can the law prohibit laziness? Because the law has generally always prohibited defamation; I do not think there is a precedent in Western law where the word defamation is just generally permitted.
Historical Roots of Defamation Law and Ties to Monarchy
[11:49]
Jeffrey Tucker: Well, I was going to say this is linked to the idea of lèse-majesté. You know, the idea of besmirching the crown and speaking ill of the king. So it is rooted in these ideas too, which is actually a crime in some countries to defame the king or the sovereign. A lot of these things are tied to this feudalistic idea and the monarchy ideas.
Stephan Kinsella: In the article that you mentioned, I wrote about defamation, which really protects what I call a reputation, right? The right to your reputation. That is what it does. The idea of defamation law is centered around what I am saying is like a type of intellectual property right, like patent or copyright.
Unlike patent and copyright, which did arise in statute, like the Statute of Anne for copyright and the Statute of Monopolies for patent, trademark and trade secret law, and defamation law emerged on the common law. They emerged in response to the idea that it is wrong to deceive someone or to defraud someone or to harm someone. This generalized idea of harm means that, yes, defamation law has been around for a long time, and it generally required the publication of false information that harms someone’s reputation.
So it is rooted in the idea that you have a property right in your reputation. Yes. Part of this involves, you mentioned harm, but even under U.S. law, do not you have to? Maybe this is traditionally true under British common law. The plaintiff in this case has to demonstrate the burden on the plaintiff to demonstrate that there was an intention to harm. Right? Not just the fact of harm, but the intention to harm.
Standards of Proof in Defamation Cases and Chilling Effects
[13:39]
Stephan Kinsella: The standards are all over the map now because the law has changed. It basically has to be an intentional act to be a crime or a tort, and it has to cause damage. What that means is you have to prove damages. Generally, there was an exception called per se defamation, which means that there were certain classes of defamation where damages were presumed.
That was like if you called a woman a prostitute or if you called an attorney dishonest in his dealings with clients; something that went to your profession or something like that. There are certain classes of defamation that are considered per se, the most per se demonstration of presumed damages of some sort, like loss of reputation.
You usually have to prove harm, which is why a lot of defamation lawsuits are brought in England instead of the U.S. In the U.S., because of the First Amendment, the bar for defamation lawsuits is raised, making it easier to prove damages in other common law countries like England because they do not have a First Amendment.
It has led to a strange situation. I think that the press feels less free in England because of the worry about successful defamation lawsuits. In England, at least, in most other non-American countries, there is generally a loser pays rule. If you bring a lawsuit and you lose, you have to pay the costs of the other side, which is somewhat reasonable.
In the U.S., we do not have that, making us more litigious. This means there is more of a chilling effect or a bullying effect from the use of trademark law, copyright law, and defamation law, which I regard as a subset or type of intellectual property law. This leads to a chilling effect.
Because people do not understand the nuances of the law, it perversely leads to the existence of defamation law enhancing the harm that defamation can cause. In a free society with no defamation law, you would always have people telling lies and defaming others. If it was permitted legally and there was no cause of action to stop it, everyone would take that with a grain of salt.
They would not necessarily assume it was true because they know that it just might be a lie. In today’s world, if someone is defamed and something horrible is said about them, like they are into octopus anime or something, then if the person who is the victim of that defamation does not file a lawsuit, everyone assumes, “Well, it must be true. Otherwise, they would have sued.” This gives more power to defamation because you have these laws.
How Defamation Law Amplifies the Power of Lies
[16:54]
Jeffrey Tucker: I think it is a profound point because anyone listening right now can think of cases in which they have been defamed on social media at some level, right? Whether you are a public figure or not. But how often does a person bring a lawsuit? Those are expensive. You have to retain an attorney, so we are very deep into the costs, and attorneys specialize in burning through that budget. It is not likely to succeed.
Kinsella:
It is sort of an offshoot of what you have heard of Brandolini’s law, the idea that it is called the bullshit asymmetry principle. It is the idea that someone can say something so confused and so wrong that there is so much confusion and error packed into a one-paragraph attack. It would take a dissertation to debunk it, right?
There is an asymmetry there, and so you do not even bother to do it. The same thing applies to defamation. You cannot go around filing a lawsuit or a cease and desist letter for every single slander against you, so people just do not bother after a while. Because the defamation laws exist, the lies have more power.
Tucker:
That is a weird conception. Now, in the 18th or 19th century, America was far less litigious than now. There was a sort of laissez-faire in terms of defamation. Is that true?
Stephan Kinsella: I think so too. There was a closer tie between the perceived moral harm and the practical. People had more reputations back then. Look, it is like trademark law. I am against trademark law as a libertarian theorist because it has gone too far. The root idea of trademark is that it is wrong for a merchant to deceive customers, which is a type of fraud. There is a grain of justification for the idea behind trademark law.
Because the state took it over and turned it into legislation under the Lanham Act in the U.S., they kept adding to it. For example, they added an anti-dilution claim, which is like the reputation rights of defamation law. In a regular trademark suit, you would have to prove the likelihood of consumer confusion, which is somewhat like fraud, but you could also just prove that the value of a mark is tarnished.
In other words, it is just turned into a reputation right. The same thing has happened with defamation. It has morphed into more than what the original narrow common law conception would have restricted it to, which is measurable, actual, tangible harms from an outrageous, clearly manifested public lie about someone’s reputation.
Tucker: You are not arguing that defamation does not exist or that it is wrong and you would have no problem with it. I will just tell you, a lot of fellows here are scientists who find themselves canceled—scientists, journalists, jurists, etc.—who are excluded because of their views. Brownstone will take them on as fellows. Our contract is like a paragraph, but the one thing we ask of our fellows is that they not engage in defamation. That is intentional lying about somebody with an intent to harm them.
Kinsella: No, that is something someone should police by private rules of conduct. Just like in universities and private publishing, you would prohibit plagiarism. You would not want to be associated with someone who is a known plagiarist.
In a free society where there is no defamation law, either someone lies a lot and slanders a lot, in which case people ignore them, or they almost always have a good reputation, respect other people’s rights, and almost never lie. But when that happens, then they can be debunked.
You could imagine like you have seen Snopes. Snopes goes around debunking hoaxes or rumors,
Tucker: at least claiming to anyway.
Kinsella: You could imagine if there was not the litigious, legal industry of defamation lawsuits and it was not a legal thing. You could imagine private solutions would emerge. In fact, the private solution used to be, “I challenge you to a duel.” You besmirch my honor. But of course, the state has outlawed dueling.
Tucker: I keep imagining that there should be a resurrection of at least a rigorously constructed defense of dueling in history. I think it has gotten a bad name, actually.
Kinsella: Do you think you and I would still be around if dueling was permitted?
Jeffrey Tucker: Yeah. One of us would at least have a …
Kinsella: Kinsella and Tucker dead at 41.
Tucker: I am not that good a shot, and I am not sure you are either.
Stephan Kinsella: Right. I do not mean us either, you know? But anyway, let us just be clear about your very interesting point here. You are saying that the very existence of defamation law and the opportunities to sue for it—many people do, you know. I have friends who have dropped, you know, deployed unsuccessfully like six defamation lawsuits in the course of their adult careers.
It is not uncommon. There have been occasions when I thought about doing it, and I thought, yes, it is too annoying, and I am done. Your point is that the existence of defamation law and the possibility that a judge will accept the case provides, in a sense, a subsidy to lies that they would not otherwise have in a world without such laws.
This is part of the problem. If you are a pure libertarian or someone like me who opposes defamation law, but we live in a world with defamation law. The main alternative you have to restoring your reputation is a lawsuit.
You could file a lawsuit, but you could ask for $1 in damages. You just want a public hearing to vet the lies, see the evidence, and have an official result to exonerate your name. It would be expensive, but at least you could do that. You clear your conscience by saying, I am only asking for $1 in damages.
But this litigation lasts years. That is the problem. It is expensive. The fundamental problem is that the idea behind defamation law is that there is a reputation. That is where the idea of harm or damages that your reputation is damaged comes from.
That implies that you own your reputation. The problem with that is, as Murray Rothbard recognized a long time ago, it implies that you own what other people think about you because all your reputation is, is what other people think about you. Ultimately, if you believe in self-ownership and freedom of speech and freedom of thought, everyone has the right to have whatever opinion they want of you.
They have the right to form whatever opinion they want of you, and they have the right to rely upon whatever evidence they want, even if it is the lies of someone spreading rumors about you. So you just cannot own what people think in their own head, which is what is implied by the existence of a reputation.
What you are saying makes sense in theory. It follows from certain postulates that you cannot own, you cannot control, or nor should you be entitled to control, and you cannot own what other people are saying about you. What constitutes your reputation is the collective wisdom of some group of people and what they think about you. You cannot possess that, right?
I get that, but still, Stephan, there is a sense that, growing out of an old-fashioned perception of what honor and decency are, you should not live in a world where somebody can just freely trash you in a way that causes you personal and professional harm. You understand that, right?
Empirical Effects of Defamation Law on Credibility of Lies
[27:46]
Stephan Kinsella: I get that, and I think there is always an intuition that if we identify something as egregious and immoral and wrong, we should pass a law against it. This is, of course, the mainstream way of looking at things because society has become so overridden with laws and so legalistic.
They think that if you oppose a law prohibiting a certain behavior, that you are in favor of the behavior. Just like if I say I think that the drug war should be abolished or our drug laws should be abolished, that I am in favor of drug use. That does not follow.
If I am against prohibition of alcohol, it does not mean I think alcohol is a good thing. Or if I think that you should be free to publish satanic literature or pornography, it does not mean that you are in favor of those things.
We understand the difference between what is immoral and what is a violation of rights. You are making an empirical claim that the existence of defamation law actually makes defamation more rewarding, compelling, powerful, and injurious because of the perception that, if it is so bad, if it really were not true, you would surely sue and win.
That person would never be saying this because they would fear being litigated against, right? Just the existence of the law itself gives the calumny, the lie, more credibility than it otherwise would have in a world without defamation law.
Jeffrey Tucker: Is that true?
Stephan Kinsella: Yes, because it gives the illusion that there is a functioning legal system and that people can easily address their grievances and debunk libel or slander. If they do not, people assume it must be true.
Unlike patent and copyright, which are legislated and are completely destructive, I would abolish those in a second. There is some wisdom behind the idea of Chesterton’s fence. We should be careful taking offenses down if we do not remember exactly why it was put up.
We have a good view of the history of why defamation law arose. I would be in favor of a reasonable limitation on it. For example, if we had a functioning court system that did not cost $1 million to file a lawsuit or take years, or if we had an English rule where the loser pays, you would have to pay a fee.
If you got rid of the per se categories, you would have a more reasonable defamation rule like we used to have, which emerged in common law administered by local courts. That would not be nearly as objectionable.
Our mutual friend Jeff Davis, who sort of agrees with me, is a little hesitant with this rationalist, deductive thinking. His view is that we should be cautious about wanting to overturn what a common law court would come up with as a solution to perceived harm.
I feel that, although I think your point is compelling, I want to clarify that the very existence of defamation law is a way for the court system or government to announce to society that you can presume that anything and everything you read and hear is not defamatory.
The state itself is immune from a lot of these lawsuits, so they get to piggyback on top of the reputation that their defamation law system builds among private people. It makes everyone trust what the state says, right?
The regulatory agencies must be trusted because everyone assumes they have to be telling the truth because there must be some legal remedy. You could sue the state, but you cannot sue the government. Has there ever been an occasion when a government official has been successfully sued for defamation? Or has that ever happened?
It is the other way around. Defamation law is rooted in this monarchical idea of lèse-majesté laws. That is kind of what we had during Covid when if you dared to challenge what the regulatory agencies said, you got canceled from your employment, from Facebook, from Twitter, and all these things. It was like a soft type of defamation law working its way out by default.
Analogies Between Defamation Law, FDA, and Regulatory Credibility
[34:42]
Jeffrey Tucker: That is really interesting. I am going to slightly pivot here, in ways that I think probably listeners might have already been thinking about. You know, it reminds me of the FDA, which is responsible for declaring drugs to be safe and effective. You just have to assume that anything at the pharmacy, anything you get by prescription, anything the doctor recommends has been declared to be safe and effective.
The same thing is true not just for pharmaceuticals, but for food. We assume that anything for sale has been deemed safe and good for you. We look to the government to do this. In my own studies, I am not sure I have even talked to you about this, but the origin of the FDA was with the Biologics Control Act of 1902, which was lobbied for by the industry itself.
They knew their products were unsafe. There was consumer revolt against them, so they went to the government and said, “You need to certify our stuff as safe and effective so people will believe us again.” They did this in a way that looks like they are cracking down on the bad actors and only leaving the good guys to make drugs.
It occurs to me that this is an analogous situation with defamation law, which broadcasts to the whole social order that anything you read is not defamatory, it is true, or it passes some plausible truth test. What do you think about that analogy?
Stephan Kinsella: I am so surprised that you found a way to link this to Covid and lockdowns. It is a good point. I saw what I did with defamation. I tried to find a way to link it to intellectual properties as an umbrella term. Now we are seeing that all these things are connected.
Yes, I think it is a good point. It is a public credibility and trust issue. It is part of the reason the state has power. What was the title of Hoppe’s book that you edited? The great fiction writer, “The State Rests Upon Delusions and Fictions and Propaganda.”
People always say the state is not good at anything, but it is good at two things: destruction and killing, and deceiving people and propagandizing. It is good at that and maintaining the distinction that it is really out for your interest.
It does this through a web of all these things, and part of it relies upon the public’s credibility, gullibility, or credulity about what the state claims. The public has no choice but to trust the regulatory agencies for their meat safety, milk safety, food safety, and medical safety.
They did not exist in the 19th century. Peddlers were coming along all the time selling unsafe things. You were aware of this and were not as gullible. Private solutions had been crowded out. You do still have some. I think you have written many times about the Better Business Bureau and the certification agencies that emerge to give private reputation guarantees.
There would undoubtedly be far more of that if you did not have the government taking the main role in that. It is very interesting. I have toyed with the idea that if we had less—it is a funny thought—that if we had far less government, even no government, we would be a more regulated society than we are now.
That does not sound believable until you think about empirical examples like the Better Business Bureau. I have had some interaction with them, and they are actually quite strict. If you write and say, “Look, I had a cookie from this Argentinean bakery, and it tasted terrible. You should downgrade them,” they will look into it.
They will find out, compare your report with others, and examine what is authentic. They take that into consideration, so they are actually very scrupulous about this. My experience with Better Business Bureau is that they will write you back right away.
They have teams of investigators looking at everything all the time, so they are quite strict. Another example is Underwriters Laboratories. There is not a single electronic goods store in this country that does not have a UL stamp on it. That is not because anybody enforces it.
There is no law that says you cannot sell, but there is no retailer in America that would ever sell a piece of electronic equipment without Underwriters Laboratory certification. Part of the reason is the liability associated with it. Retailers and wholesalers do not want to bear the potential liability for harm by selling unsafe products. This is a system that regulates itself.
It is also reputational. For example, there are kosher labels on food. If you go to a store, there are cookies like Oreo cookies that have kosher certification. That is all private—the government has nothing to do with it. It is strictly regulated.
Here is what fascinates me: we have all these regulatory agencies that say, “We are going to make your food safe, your medicine safe.” People just naturally trust them. But what would happen in their absence if you had an Underwriters Laboratory or a Better Business Bureau for food and pharmaceuticals? They might be far stricter. In fact, I guarantee they would be far more strict.
Stephan Kinsella on Private Regulation vs. Government Agencies
[40:03]
Stephan Kinsella: A lot of free-market libertarian types have an anti-authority, anti-hierarchy, and anti-rule stance. I think one reason they think they are libertarians is that they believe in a libertarian society; anything goes, it is a free-for-all.
But it could be the other way around. You could have many more private rules that you would have to abide by. No shoes, no shirt, no service—something like that would always apply. It would pertain especially to pharmaceuticals, I would think. You would have competitive and highly credible organizations out there.
I have pointed out to people that I oppose trademark law because, as I mentioned earlier, it has gone too far. People say, “If you do not have trademark law, what stops someone from selling knockoff Crest toothpaste in a supermarket?”
Well, think about it. You are going to go to Kroger down the street, and they are going to stock Crest toothpaste from a knockoff Chinese supplier. Eventually, consumers will find out, and they will know they cannot trust Kroger to carry the genuine goods.
It just would not happen. The first time it happened, you would go out of business. You do not need trademark law or reputation or IP law to stop you from deceiving your customers. You want to keep a good reputation to get your customers.
But it is hard to anticipate how this stuff would flesh itself out. I do not want to get too far away from my obsession with the FDA, but I just want to point out that you and I were in the streets of Bodrum downtown, where there are all these shops.
I remember distinctly that there was a real Nike shop and right next door a fake Nike shop. I was in Istanbul, Turkey earlier last year, and I was in the big market there. I was with a local Turkish guy, and he was telling me that.
I was looking at all the fake purses, the knockoff purses, because in the U.S., they get destroyed pretty easily. But in other countries, they are a little more lax. You can find the knockoff Louis Vuitton and Chanel purses. My friend said, “This street has the knockoffs, but this street has the genuine knockoffs.”
They have different levels of knockoffs. There is real stuff for about $10,000, then there is cheap stuff for $100, but there is a genuine knockoff that sells for $300. They are really good knockoffs; they call them “genuine fakes.”
There is another funny aspect to this. A Nike or other manufacturers realized that there is utility in having a laissez-faire attitude towards the knockoff companies because they could let the knockoff companies do product testing.
The knockoff companies make a fake Nike shoe. If it sells really well, they know they should go into production with it or increase its production. That could be true; it could be an urban legend. However, I have a feeling that Nike executives would concede your point.
They are pretty quick to use IP law in the U.S. to steamroll over counterfeit goods.
By the way, this is an example of the problem with trademark law. If trademark law was based, as it used to be, on the idea of fraud, which is consumer confusion, then it would not cover knockoffs. In those cases, the consumers are not being defrauded.
No one who buys a fake Rolex for $20 from some guy selling it out of his jacket or van on the street of New York City is defrauded. They know it is a fake. They are buying it because it is a fake. The purpose of trademark law in those cases has nothing to do with consumer confusion or fraud; it is just about reputation rights, which is a game that defamation law protects.
Right now on eBay, you can buy a real Louis Vuitton, or you can buy a knockoff Louis Vuitton. They are priced very differently, and the sellers will tell you, “This is not real, but it is really good.”
Would you be surprised to learn you can buy a knockoff Louis Vuitton on eBay right now?
Jeffrey Tucker: Yes, I would be surprised because that would be policed heavily by trademark enforcers.
Stephan Kinsella: Well, maybe I am wrong about that. If it exists, why can’t you sell it on eBay? If it is trademark infringement, it can be stopped. Do you think there are no fake products on eBay?
Jeffrey Tucker: I think it is just the same reason you do not have knockoff Harry Potter books on Amazon.
Stephan Kinsella: Oh, okay. Maybe I am wrong about that. In any case, whether I am right or wrong, and if you are correct, that just proves that the market works.
Human beings are capable of policing themselves. To roll back to the FDA point, I think it was catastrophic that the FDA was created in the first place. First of all, they have an impossible job. It was founded by industry, and now they are being asked to declare things safe and effective.
As it turns out, nothing in this world is perfectly safe, and nothing is perfectly effective. Nothing qualifies under a strict standard of safety and effectiveness, yet their approvals go on all the time. They are constantly toggling between acquiescing to industry and maintaining the ongoing fiction of safety and effectiveness.
Every time they approve a product, they take away that natural consumer caution that would exist. The same thing is true with food and meat.
Critique of Regulatory Agencies and the Illusion of Safety
[47:05]
Jeffrey Tucker: I totally agree. The MAGA and MAHA movements have led to some rolling back of apparently bad nutrition advice over the last 30, 40, and 50 years. But that advice would not have caused so much harm if people had listened to it. They listened to it because they trusted the government, which is in charge of all these agencies and safety protocols.
I lived through the great upheaval of the American diet that happened in the 1970s. It would never have happened if we had just stuck with grandmother’s wisdom about food. Instead, we had this giant out there screaming, “Do not eat eggs, do not eat meat, eat more bread.” Everyone went along with it.
There was a time when even that generation was sucked in a little bit after World War II. They wanted powdered milk instead of real milk; they wanted margarine. Partly, that was government influence. My dad, who is 86 or 87, says something like, “I am so old I remember when bacon, eggs, and sunshine were supposed to be good for you.”
To your point about criticizing libertarians, I used to assume that the great problem of regulatory agencies was that they were blocking products from coming to market. In fact, the real problem for regulatory agencies is that they permit things to come on the market that, in a world of purely private regulation, would never have gone to market.
They do this, not just because of the fear of consumer reaction, but also due to the liability associated with it.
Look at the Covid vaccine, which you pointed out is not even a vaccine. The FDA does block some drugs out of concern for hyper-safety. They actually kill people by not allowing them to at least try something. At least Trump got the right to try this in his first term.
They are overly cautious sometimes, but then that means that when they want to make an exception, which they did for the Covid vaccine, everyone assumes it is safe because the FDA only allows things that are safe, even though they did it under an exception that no one understands.
The exception is the liability shield, which is one of the most remarkable features of any product. The Covid shot in particular has several layers of indemnification associated with it. It was released under emergency use authorization indemnification, put in place because of the PREP Act.
Then it was added to the childhood schedule, which gave another layer of indemnification. Any shot on the childhood schedule is automatically indemnified against harm. You cannot seek damages from the government itself, but that is hardly ever granted, and it is extremely arduous.
Most libertarians, because they are centralists and worship the Constitution, do not make it clear that the FDA is unconstitutional. The Constitution does not grant the federal government the power to regulate pharmaceuticals in the first place.
There is also no power for the federal government to pass a law that changes state tort law, which is what these liability shields do. They also do not have the right to limit state liability claims in state courts, but they do that unconstitutionally with these liability caps.
Caveat Emptor, Liability, and Private Alternatives
[56:37]
Jeffrey Tucker: I believe the tort system should be reformed so that you should not be able to sue for something you voluntarily took, as long as you were not defrauded. If you sign a waiver saying, “I understand the risks,” then that should be valid.
Stephan Kinsella: Exactly. This is an interesting proviso because it is not the case that I am all for strict liability, especially when it comes to pharmaceuticals. If I take something that harms me, I should be able to sue and make a lot of money for all the harms.
That is currently not allowed for a vast range of common pharmaceuticals, particularly injections. That to me is outrageous. Your point that there are two mitigating factors here keeps strict liability from becoming overly burdensome.
One is that a manufacturer has to be insured. The burden is on the insurance company to do a realistic assessment of the genuine risk. Insurance then becomes an important player.
The second is the point you just made about safety waivers. If I went out this afternoon and decided I wanted to try skydiving, they are not going to let me skydive without going through 45 hours of training.
Secondly, there is going to be a phonebook-sized waiver that I have to sign, saying that I will not hold them liable. That is entirely in keeping with a market business, too, is it not?
Stephan Kinsella: Absolutely. I totally agree with you. I do think that caveat emptor should be the default rule. Buyer beware. I am not even so sure about strict liability; I think that is debatable.
There should be liability for harm, but there are legal questions about whether there should be a default warranty or guarantee or who should have what the default presumption is. This is a question of contract law and tort law.
I do not want to keep going back to this, but the elimination of indemnification against an entire class of pharmaceuticals seems to be an urgent change. We are not anywhere close to doing that, but it should be done.
If accomplished, it would lead to a range of products never being pulled off the market or manufactured again. It is likely, but unfortunately, it is heavily distorted right now.
The fact is that these regulatory agencies disable the natural market mechanism that would be in place throughout the consumer marketplace.
There must be another Latin variant of caveat, something like caveat citizen, which means citizens should not trust what the states say.
I think we saw this happen before Covid. The average person might have been somewhat skeptical of medical advice, but I assumed vaccines worked.
I was exactly the same way. I never had any doubts about this. I did not assume the vaccine would work, but I never imagined it would actually be unsafe.
Now, a lot of people do not know what to believe, and I think that is probably a good thing. If you are just skeptical of what the state says now because you are living in the real world, you are called a conspiracy nut or a kook by the mainstream establishment types.
They are nervous that people are catching on to the fact that the state is full of lies and deception.
Tying It Back: Caveat Emptor for Information and Closing
[1:01:32]
Jeffrey Tucker: To bring us back to the defamation point, which is your most provocative and interesting assertion during this interview, caveat emptor should also apply to the consumption of information.
Stephan Kinsella: Exactly. It ties back to the same way that the FDA provides an illusion of safety and effectiveness. The existence of defamation law wraps all information services in the illusion that they are non-defamatory.
That means something like what happened during Covid. When speech was censored on Twitter, people assumed that what was said passed the minimum standards for acceptable talk.
It all ties in together. That is one reason we had a hard time getting through this period. Even to this day, I have always puzzled about a feature of this time in our lives that was so traumatic.
The dominant assumption is that the public just rolled over and let this happen. We let Fauci preach to us, stay six feet apart, comply with stay-at-home orders, and shut down businesses. Nobody objected; we all just trusted the elites.
I am not sure that is true. The reason I am not sure is that, because of all the censorship, we do not know how much population resistance there was because the information was so throttled.
Jeffrey Tucker: Thank you, Stephan, for this wonderfully engaging interview. Your book is called “The Legal Foundations of a Free Society.”
Stephan Kinsella: Yes, let us get that baby out here. That is a massive show. The thickness of it is remarkable.
Jeffrey Tucker: We are talking about 600 pages, with about half footnotes.
Stephan Kinsella: Yes, the defamation piece came out in 2024, and this Hoppe book. My defamation article is in this book. You will have to do a new edition of “The Legal Foundations of a Free Society.”
I have to find a publisher that has a binding that can hold that thickness.
Jeffrey Tucker: You have bumped up against the limits there. If you are at 800 pages, that is all that Amazon Kindle publishing will do in hard copy. So I had to go to Ingram Sparks for that because I am at 808 pages.
Stephan Kinsella: That is really something. It was such a pleasure to see you.
Jeffrey Tucker: You too. Really glad to have you on The Brownstone Show. All the best.
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