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Transcript: Stephan Kinsella and Nick Sinard Discuss CDA 230 and Libertarian Issues

Stephan Kinsella (0:02): Okay, hey, this is Stephan Kinsella with a different edition of Kinsella on Liberty. One of my internet acquaintances, Nick Sinard—is that the right pronunciation?

Nick Sinard: Yes.

Stephan Kinsella: He’s joining us. You wanted to chat about something today. I forgot what it was. I did two Tom Woods episodes last week, and things are blending together, so I’m forgetting what we were gonna talk about, but I’ll let you bring up whatever you want. Go ahead. Introduce yourself too, if you don’t mind.

Nick Sinard (0:29): I’m just Nick Sinard, been a libertarian for like eight years. I got a few businesses and stuff, but maggotsnicksart.com, you know, I put some libertarian stuff up on there, but it’s been a while since I’ve updated it.

Stephan Kinsella (0:50): For some reason, I thought you were a foreigner, an outsider, a Frenchman or something with that name, but you sound Southern to me.

Nick Sinard: Yeah, it is French, but yeah.

Stephan Kinsella (1:01): What state are you in or from?

Nick Sinard: Tennessee, close to the Great Smoky Mountains.

Stephan Kinsella: Alright, two Southerners on the line then. Let’s try to keep the IQ level, the total IQ level, above 100 if we can. It’ll be a challenge, I know. Now, I guess I want to talk about mostly three things I think are all pretty interrelated. One you’re starting to see more is that libertarians are starting to act like or say that Facebook’s a part of the state.

Nick Sinard (1:26): Oh no, yeah, I see that more.

Stephan Kinsella: Another one I think that’s related is kind of the Section 230 thing, or even libertarians will bring that up. And then I’ve seen, it’s not as popular as it used to be, but terms of service violations as aggression. I’ve seen a few libertarians make that, but I think that’s just confusion on liability and contract.

Nick Sinard (1:50): I haven’t heard that one too much.

Stephan Kinsella (1:58): I don’t recall ever hearing that terms of service are aggression. You could argue that they’re not a binding contract, and I think there are good arguments for that.

Nick Sinard (2:04): Well, I’m just saying, on that one, I’ve seen people say, well, you know, Facebook or Twitter didn’t follow their own terms of service, so someone has the right to force them to do.

Stephan Kinsella (2:18): Oh, right, yeah, that’s a confusion of libertarian property and contract theory. That’s true. But I guess start with the first one, which is the most popular one I’ve seen talked about on a few shows, actually, and many people in the Mises Caucus group pretty much say Facebook is a part of the state just because they’re cooperating with the state when it comes to what information the government wants on its platform.

Nick Sinard (2:42): You know, and they’re like, right now, it’s a part of the state, therefore, you know, I’ve seen some say that, no, I don’t want legislation or anything like that, but you can say you don’t want legislation to affect Facebook, but if you’re saying Facebook’s a part of the state, that does enter into some dangerous grounds.

Stephan Kinsella (3:00): I agree. I mean, I think if you conclude someone is, you should say it. You shouldn’t be afraid of the consequences, but you should be cautious and try to do it carefully. I guess I’ve been thinking about this too. Why do people feel compelled to do this? Like, why this witch hunt to classify Google, et cetera, as part of the state, or corporations? Like, the left libertarians want to say that about corporations because they have this limited liability privilege grant, so-called. I mean, I think, first, as libertarians, it’s important to understand the state because it’s the biggest aggressor. So we have an analysis and theory of the state. So the state is an identifiable actor, agent, or entity in society, and it plays a certain role. It’s the institutionalized source of aggression. Now, we libertarians oppose aggression in general, so we oppose what I would say is private aggression and public aggression or aggression by private criminals, which is why we need self-defense and defense agencies and laws and courts and things like that. And we also oppose institutionalized aggression, and it seems clear that institutionalized aggression by the state is a far bigger threat than random, isolated, ad hoc acts of private crime by private criminals.

Stephan Kinsella (4:01): The minarchists and classical liberals recognize the danger of public aggression, which is why they want to create a state, but they want to put limits on it, like in a constitution. So they recognize how dangerous it is, so they want to put limits on it, but they basically recognize the state as a possible source of violation of rights. So we have to identify the state, and we have an analysis of the state. I think that analysis always comes with this class analysis, like Hoppe does, and even Marx does to some extent, but he does it in a different way. But it’s basically the rule of the majority by a minority.

Nick Sinard (4:54): Right, that’s why they do it, so that it’s like a pyramid of power, so that, you know, the five percent or the two percent or the one percent or even the ten percent can exploit the other 90 or 99 percent.

Stephan Kinsella (5:06): Right, so they can live high on the hog while the masses are relatively impoverished. So to succeed, I think Hoppe goes into this in his Banking Nation States great article. They have to basically persuade the population to go along with it by a variety of techniques: propaganda, coercion, tradition, appeals to authority, and with democracy, by getting everyone to falsely believe that they’re part of the state. And, you know, so many people have relatives, or they themselves work for the state, because the government is so large now. The federal government, for example, so everyone is, you know, their kids are going to public schools, and we drive on public roads, so everyone starts to have this kind of interest in the state, so they’re reluctant to challenge it. But still, the state itself has to be a minority. So if you broaden the definition of what’s the state so large that it includes Google and Facebook, and even broader, any corporation, because no one has totally clean hands, I suppose, and even broader than that, every—not only every human being that’s an employee of the state, which is, I don’t know, what, 15, 20, 30 percent of the population—but people that are being paid by the state, because what’s the difference, economically and politically, whether you pay someone a salary or you have a defense contractor that you’re paying, or a welfare recipient who’s getting money, or private jails, you know?

Stephan Kinsella (6:08): So I guess these are all part of the state. So if you’re going to have such a loose standard of conceptual connection or causation that Google and Facebook are part of the state, then basically we’re all part of the state, which is exactly the lie that the state tells. They tell us this so you are part of the government, that’s why you can’t complain about it. You have the right to vote, so you are the government, right? So you can’t complain if you don’t get the results you don’t like. So you have these anti-statists, so-called, doing the same thing that the statists do. They’re all saying we’re all part of the state, which is ridiculous.

Nick Sinard (7:07): Oh, yeah.

Stephan Kinsella: But then you have to ask, okay, so why are these libertarians, why do they want to say that Facebook and Twitter and Google and YouTube—who else? Amazon, I don’t know, fantastic Amazon accounts, Apple—basically the FANG and, I guess, other companies, why are they part of the state? I mean, the older reason from 10, 20 years ago would be, you know, they’re corporations, they have limited liability, or they influence policy, or they have lobbyists in D.C. They’re in bed with the state, they’ll say. I mean, the chain of causation is not always clear, admittedly. It’s not clear whether the state has wormed its way into corporate America and business so that we have a type of fascism where you have nominal private ownership, but government is so intertwined that the influence with the government does what business does, or whether business influences what the state does, and they’re at the control of the corporate power, which is sort of what the crony capitalists think. I think it’s a mixture, but I mean, if you’re going to say whoever influences the state is part of the state or responsible for it, what about the voters, you know? What about the average voter? What about people who write articles that propose progressive programs, taxation, and public schools, and war, and all that?

Stephan Kinsella (8:19): So this ultimately requires a careful and nuanced and cautious application of causation analysis, which is what I try to do in one of my articles with Pat Tinsley on causation and aggression in the QJAE years ago. But it’s not just something you can do from your armchair, blustering what I think is going on. And I’ll let you jump in in a second, but what I think is really going on is a lot of libertarians are impatient. This is why they’re activist types. They don’t want to just think and have intellectual ideas and work for freedom in their own life. They want freedom now for everyone, god damn it. And some of them tend to join the Libertarian Party, and because they don’t make much progress by advocating anarchy or radical minarchy, you know, they tend to compromise or settle for tiny improvements, or even the tiny hope of a tiny improvement. So they go file a suit for the Supreme Court, or they’ll field a local candidate for office and, you know, argue for school choice and things like that. Some of them compromise and sell out, or they refuse to push for radical things and only tiny little things, so they’re desperate for some little win.

Stephan Kinsella (9:20): Basically, because they’re kind of either libertines or they’re lifestyle libertarians, or they’re just impatient. And they tend to be the type that also are non-conformist and contrarians, and the regular ways people live their lives, they don’t like having a boss, they don’t like having to obey rules. They’re basically not just against political authority and unjust political authority, but they’re against all legal authority and all hierarchies in society, which is sort of a left-libertarian problem, right? They oppose not just the state and aggression, but they oppose bossing people around or private hierarchies. I think the natural approach is something Jeff Deist mentioned recently, which is what Hoppe gets at: you can have either private authority and hierarchy, or you can have public hierarchy and authority. You gotta choose. You can’t have none. If you have none, you have literally chaos and no society.

Stephan Kinsella (10:24): So the libertarian approach is really what you could call a right approach. I don’t think it’s really right, but it’s basically recognition of the natural place of natural authority, natural hierarchies in life: the family, you know, natural civic leaders, business, church, intellectuals, leaders, all these things are going to arise naturally, and that’s a good thing. So I think what happens is you have these libertarians who they just can’t use Facebook like they want, and they get annoyed by it, just like the average person does. Now, when the average person gets annoyed by a business not giving them what they want, like, you know, if a restaurant doesn’t serve blacks, they want to pass a law to fix it, you know, which they did in the ’60s, right? Forcing people to accept all comers, which is a violation of property rights. And if Facebook—and then the argument of the mainstreamers has always been that if a business acts like it’s a public thing, like a town square, or if it acts like it’s open to the public, like a restaurant or a movie theater, then it has to be held to the same kind of standards that we hold the government to. Now, why do we hold the government to these standards, or the state? Well, we anarchists want the state abolished, but we’re content, so we’re also in favor of limiting or restricting their power as much as we can. Minarchists and classical liberals favor the state, but they recognize that it has to come with limits. So we all favor limits on what the state can do, even if they’re limits that would not apply to a private actor, right?

Stephan Kinsella (11:54): So, like, Ayn Rand would say, the government, the state, has no right to hold an official position about what the right religion is, right? Not because a private individual doesn’t have the right to have an opinion on religion, but because the state has a narrow, crucial, restricted role of enforcing law, and because it’s the use of force, it has to be really limited in what it can do. Whereas, if you start applying government restrictions to private actors, you’re limiting them to things that they ought to have the right to do, you know? A private company ought to have the right to be racist or sexist or have religious preferences, whatever they want. Now, economically, we would say that they pay a price for that. I think they do. They tend to pay a price. Sometimes people are willing to pay the price. That’s what the market, supply and demand, the higgle, you know, the negotiation between customer and supplier, employee and employers, social representation of approval, reputation, all this kind of stuff results in a certain type of market playing field.

Stephan Kinsella (13:03): So what I think is happening is these libertarians hate the left, which I do too, and I appreciate that. They see that the tech giants have become ate up with dumbass, as we say in the South, ate up with the dumbass. You know, they’re a bunch of soft, dumb liberals, lefties, and they’re using that to influence what their companies do. They’re trying to push their narrative by this economic and business pressure and social pressure that they have, basically by de-platforming people that say things they don’t like. And we libertarians, some of us, are saying, well, that’s like taking my right to free speech because, you know, Facebook has become the town square, so they should be subject to the same regulations of a town, which is a government agency. So I think that’s what they’re doing. So what they’re trying to do is they’re trying to say, basically, these companies have become so entangled with the state, either because the state is influencing them so much to enact state policies in a private sphere, or vice versa, you know, that they’re getting their lefty, progressive views put into place by law because of their influence over the government. That the state intervention in the market is effectively taking away the private status of these companies, so we can treat them like public. But what does that mean? That means that there should be government-enforced laws that apply not only to the government itself but apply to private actors. So you have this perverse thing of libertarians who oppose the state having laws which apply to the private sphere because it corrupts them and makes them not fully private, and then using that as an excuse to expand the state’s domain and jurisdiction, allowing it to pass laws that limit not only government power, like the Bill of Rights, but limit what these private companies can do. So I think the whole thing is misguided and perverse.

Stephan Kinsella (14:56): And not only that, I mean, we’re never going to make progress towards a more private, less state society if we just seek to identify people and call them villains so that we can use force against them, either private force or a public force. That’s not the way we progress towards a more libertarian society. We should identify the way the state is making the private sphere less purely private and oppose that. So we should oppose the minimum wage, we should oppose tariffs, we should oppose government schools, we should oppose all manner of regulations and subsidies by the government that taint these private companies. But we shouldn’t seek to vilify them and condemn them. We should oppose what they’re lobbying for and oppose the state’s involvement, and that’s all I think that we can do with libertarian analysis.

Nick Sinard (16:12): Yeah, I guess really what the important part is, is Facebook or Twitter, you know, committing aggression or helping in it? You know, even if you want to call it part of the state, which, yeah, it’s completely misguided, are they just receiving funding? Are they just cooperating, or are they committing aggression? You know, are they cooperating, trying to give the state information, you know, to help commit aggression? I mean, if they’re not doing either, if they’re not committing aggression, I just don’t see why you would even want to classify them as part of the state.

Stephan Kinsella (16:50): Well, and if they are committing aggression, they’re either committing private aggression, which ought to be illegal and is illegal, and we oppose that. We libertarians, we actually do favor laws against aggression, whether they’re private laws or even state laws. Or it’s public aggression, which means they’re doing it at the direction of the state or using the state’s courts and apparatus to do it. But in any case, that’s why it’s good to be an anarchist. The solution is just shrinking the size of the state down as small as possible and basically to zero. Once you do that, that problem disappears. There is no possibility of a state forcing a company to act in a wrong way if the state doesn’t exist, or of using state power to commit aggression against your victims because the state doesn’t exist. So all that’s left is private aggression, and if there’s private aggression, we could defend ourselves against that with private defense means in a private law society.

Nick Sinard (17:45): I know some have been like, yes, that’s the libertarian answer, but we gotta live in the real world, I know, right? Because they’re, like I said, they’re impatient. These guys are high time-preference, impatient people, and they’re willing to—some of them start compromising their principles. So they’re willing to—so the 230 thing is a good example. Explain what that is.

Stephan Kinsella (18:03): So in the late 1990s, under Bill Clinton, Congress sort of half-serendipitously passed two things that some argue helped keep the internet from being killed in its cradle by government regulation. There were two safe harbors. One was a safe harbor, basically from defamation liability, that was in Section 230 of the Communications Decency Act, and the other was the safe harbor provisions for copyright in the Digital Millennium Copyright Act in 1996 and ’98, I believe. And, interestingly, the CDA was struck down as unconstitutional later, I believe, except for the safe harbor. The Supreme Court let that stand, which is good. So, basically, it says that, you know, if you’re a platform, internet service provider was, I think, the term they use, which used to refer to, like, CompuServe and GoDaddy and things like that.

Nick Sinard (19:04): Yeah, and now, yeah.

Stephan Kinsella: That’s the interactive computer service, that’s what they said. So it means that if you have a service where your users can generate content, so they’re using you as a platform, like they can put a website up, or if you have a website or a blog with comments, they can make a comment, like you can make comments on YouTube videos now, and you can make comments on different news articles on websites, then the company hosting that and providing these third-party users the ability to post this information, they would not be secondarily liable or vicariously liable for acts of defamation or acts of copyright infringement performed by these users. Because if they were, they would have to police these comments to avoid liability, or they’d have to just remove the comment section or the ability for people to create independent content with YouTube videos and websites and blogs. It would have stifled the whole way the internet works now.

Stephan Kinsella (20:05): So when libertarians say—and so one of the arguments for the CDA thing was, like, well, these platforms are not really editing and looking at what people do, they’re not curating it, so they’re not really the publisher, like a newspaper is a publisher. Like, if they publish an editorial or a newspaper report from one of their reporters, and it defames someone, then the newspaper can be sued because they’re the publisher. Now, I actually think that’s wrong too, for two reasons. Well, the main reason is because defamation law is not libertarian, so there should be no defamation law. There should be no copyright law either, but—

Nick Sinard (20:41): So one of the observations was, well, these platforms, these internet service providers, are not acting like publishers. Now, that was not a condition of the safe harbor. It didn’t say, so long as you’re not a publisher, you get the safe harbor. It just said, look, the internet’s a new thing, we don’t want to kill it in its cradle as it’s emerging, so they don’t have liability for their users’ comments. Now, the copyright thing wasn’t as good of a safe harbor because it said you’re not liable as long as you take down stuff when you’re notified, which has led to this takedown thing where, you know, a million YouTube videos are taken down a month or something because—

Stephan Kinsella (21:19): Robots tell them to, and they have to respond to avoid losing their safe harbor.

Nick Sinard: Yeah, lately has been affecting Twitch pretty heavily with DMCA takedowns. It’s horrible, and there’s very, very little liability if you file it maliciously or without substance or whatever, because robots do it all the time. Sometimes robots of one company file these takedowns against the company’s own YouTube stuff. I mean, it’s so ridiculous.

Stephan Kinsella (21:42): And, perversely, some libertarians and conservatives and even liberals are arguing, have been arguing for a while, that Section 230 needs to be eliminated or radically scaled back. That’s because they think it protects big companies from liability when there’s no distinction between, like, a publisher or a platform in Section 230. They think it’s a government giving them a privilege, and it’s just like the libertarians who oppose corporations because they think that the limited liability grant gives them a privilege. And the state should not be granting privileges, and I agree with that, but these are just not privileges. And I can explain why. The reason they think they’re privileged is because they’re totally confused about causation and liability for the limited liability issue and also contract law, and they’re also confused about defamation and copyright law in the CDA issue and the DMCA issue.

Stephan Kinsella (22:35): And I would say, to the contrary, instead of narrowing 230, what we should do is we should get rid of the DMCA copyright provisions and put them into 230, or expand the DMCA provisions to be more like the Section 230 provisions. In other words, you should say that a publisher or not a publisher or platform is not liable for copyright infringement of its users, but they don’t have to take it down. They should not have to take it down, because that’s not there for the CDA. You don’t have to—if someone says, oh, one of your users posted a defamatory comment on your blog, you gotta take that down, or you’ll lose your safe harbor—that’s just not there. So I would actually broaden the DMCA copyright safe harbor to be more like the 230 rather than limit the 230.

Stephan Kinsella (23:27): So the reason 230 should not be restricted—number one, even if so, some people say, well, they’re acting like publishers now because they are curating content, they’re deciding what to let on or what not to, which is true. I do believe that Twitter and Facebook are acting kind of like publishers to a degree now. But I don’t think that should be an excuse to take away their 230 liability exemption for defamation. I think, if anything, it also creates an unlevel playing field between traditional newspaper publishers and these platforms, these internet platforms. And that was actually shown in a recent episode of The Good Fight, which is the sequel to The Good Wife. Like, I think one or two episodes ago, there was a plot about that.

Stephan Kinsella (24:14): But I think that the answer to an unlevel playing field is not to impose similar restrictions and to hobble B like A’s being hobbled, but to unhobble A. So I would get rid of defamation altogether, certainly get rid of third-party or vicarious, secondary, or vicarious liability of newspapers for defamation of authors who publish in that newspaper. So, you know, free them up too. Let’s expand the CDA, let’s expand it to all print and all television and everything.

Nick Sinard (24:44): Yeah, and it makes little sense, but first off, people are just wrong about Section 230, but also, it makes little sense for libertarians to even be talking about Section 230. Like, what does that have to do with libertarian principles whatsoever, you know? But I’ve seen libertarians—it’s because they don’t—it’s because they don’t all recognize that defamation should not be a tort at all. I’ve seen some that are anti-IP that are still confused on this, and I mean, yeah, it does go back into law, which they need to read your paper on it, or if they want to also read some Adolf Reinach, you know.

Stephan Kinsella (25:24): But I know there’s a great article, you’ve mentioned it before. It’s something like, “Hello, you’ve been referred here because you’re wrong.” I forgot what it was about.

Nick Sinard: It’s on Techdirt, it’s Mike Masnick’s site. They have a page called, “Hello, you’re wrong about Section 230 of the CDA,” and there’s a list of frequently asked questions and answers showing why you’re wrong because they’re tired of answering the same stupid misunderstanding over and over again. I’ve been building something like that for IP, as “Hello, you’re wrong about intellectual property.”

Stephan Kinsella (25:53): The article’s awesome. It has a ton of information, clears up a lot. By the way, let me mention two things. There’s something I never thought of until recently about 230. I have been in favor of it, but I’ve always been a big proponent of federalism in the U.S. system as well, for two reasons. Number one, it’s a sort of decentralist and a systematic and a structural way of limiting state power, especially federal power, which is the biggest one. And it’s also in the Constitution, and not that I revere the Constitution, but it was an attempt to limit state power, and they need to be held to it, whatever it says. And so, because if they’re not held to it, then that means that they’re free to do whatever they want. But the Section 230, I guess there is one problem with 230, and that is that I think there’s aspects of it that are unconstitutional because I think what it says is that states cannot hold you liable for defamation, because this is a state law thing, mostly. So, like, I guess I would say I would prefer if there was a Section 230 thing in every state. I don’t know if the federal government really has the authority to overturn state laws for defamation, even though they’re unjust. And because they’re unjust, I don’t have too much heartburn over it. Sometimes I’m a results-oriented libertarian, and, you know, the only reason I’m in favor of the Constitution and federalism is because they have instrumental value, like they seem like they would happen to or tend to mostly push against violation of rights. But I’m also against any violation of rights, so, you know, if there’s a Supreme Court decision that is not constitutional, but it ends up striking down an evil state law, I, you know, it doesn’t necessarily violate anyone’s rights. It just makes the government more dangerous by giving them more power in unleashing them from the tethers of the Constitution. So you have this tension sometimes.

Stephan Kinsella (27:59): And then the other thing I want to say is, so Jeff Deist is one of the few people who has what I think a sincere and intelligent pushback against the kind of radical, legalistic, Rothbardian, Kinsella, Hoppean, and Block take on defamation law and things like that. So I think, like, Deist has said in a couple of podcasts and maybe articles that maybe, like, Rothbard’s article against defamation in The Ethics of Liberty, I think it’s called “Knowledge, True and False,” maybe Chapter 10, I can’t remember the chapter, but “Knowledge, True and False,” you know, where he says, like, you don’t own your reputation because that would be owning what other people think about you, so all defamation law is wrong. No one owns their reputation, basically. So all defamation law is unjust and should fall, even though it’s state-based, and even though it arose in the common law, it’s not even legislation-based always. And so Deist points out that today’s day and age is different, just like the Austrian economists of 50 years ago never thought of digital money, cryptocurrency, Bitcoin, and we might have to revise our application of economics to this new phenomenon. I mean, Deist is saying that we never imagined a world where a private, so-called private company like Twitter or Facebook could just make a decision, or not only that, someone could post something about you, like saying you’re a child molester, and you’re just basically de-platformed everywhere, from your employer, you know, from loans, from supermarkets, from your domain provider, from credit card processing. So it can basically ruin your whole life. So he’s saying that the magnitude of harm is so much that we might need to let common law judges decide this and apply these old principles to the new world of technology.

Stephan Kinsella (29:54): I still have a problem with that, intellectually, because it’s still missing the point that he’s right that it can cause a lot of damage or harm, and it can cause magnitudes more harm and damage maybe now today than it could in the past. But the standard for libertarians is never harm, it’s aggression. We have to choose, is it harm or aggression that we oppose? Because you have the right to harm people, as long as you do it by legitimate means. So if I compete with you and I steal your customers, I’m harming you. If I steal your girlfriend, I’m harming you, but it’s all peaceful and not aggressive, so it’s legitimate.

Nick Sinard (30:33): Yeah, I mean, covered that with, you don’t have a right to value, you know, like if your house goes down in property value because of someone else’s house, you know, oh well, you know, you don’t have a right against that person to stop them. Exactly, pretty much the same with, I guess, with Deist’s argument is that it goes back to, if it’s not about defamation and, like, reputation, someone’s head or mind, then it would go back to value or have a right to future profits, correct?

Stephan Kinsella (31:04): Yeah, so the problem with Deist is that I think he’s correct that the magnitude of damage is potentially far greater now, but the standard cannot be harm, it’s got to be aggression. Do you violate—this is what Hoppe says, I’ll link to all these in the show notes—that’s what Hoppe says. Do you violate the physical integrity of someone’s property? ¹

Stephan Kinsella (31:32): Now, there are some continuum or gray areas or maybe difficult areas, which I touch on in my causation piece. So, for example, if you, let’s suppose you falsely accuse someone of a crime, and that ends up causing them to go to prison unjustly, now you can blame the jury system, you can blame the law, you can blame the jurors, you can blame the judge, you can blame the jailer, but I think you also could blame the person lying, causing it to happen. So it is a speech act, but in that case, the speech act was designed to and ended up causing physical harm, like there’s a physical violation of the person’s bodily integrity, and they played a causal role. They played a causal role, not in harm, they played a causal role in a rights violation. So that’s the difference. You can make the same argument about, like—see, this is where I would disagree with Rothbard. Rothbard says that incitement is never a crime, like if you incite a mob to go after some guy, and they hang, they lynch the guy, it’s the mob’s fault, but it’s not your fault because you just spoke words. I think that’s totally wrong. Given the context, your words can be causal. They can be a causal factor in the harm or in the rights violation that occurred. I mean, just imagine, you know, Truman ordering the dropping of bombs over Hiroshima and Nagasaki, or imagine a firing squad commander saying, “Ready, aim, fire.” All he does is speak, you know.

Stephan Kinsella (33:04): I mean, these libertarians that are so myopic and they think that only the actual soldier or whatever is liable, only the underling is liable, not the mafia boss who ordered him to commit a hit, I mean, it’s ridiculous.

Nick Sinard: It goes back to the free will, you know, but, correct, you have to look at it, like what you point out in your piece, in a praxeological kind of framework, and it’s just means and ends, correct? You can use other people, you can use another person as a means. That’s what cooperation is. We recognize it as cooperation for good things, like for economic cooperation, but there’s also cooperation for bad things. That’s what conspiracies are, you know, not the nutty libertarian tinfoil hat, no moon landing conspiracies, or the vaccine has microchips in it conspiracies, but a criminal conspiracy, which means people combine together to cooperate to do something. So if you have a bank robbery, you have a guy that plans it, you have the getaway car driver, maybe the guy who funded it, and then you have the guys that walk into the bank with the shotguns. So some myopic libertarians say only the guys with the shotguns are liable, and in fact, each one’s only liable for what he did, like there’s no felony murder rule, which is the rule that, like, say two guys go into a bank with a shotgun each, or let’s say one of them has a shotgun, only one has a shotgun, the other guy’s not armed, and they rob the place, and then during the robbery, the guy with a shotgun kills an innocent person. Well, under the felony murder doctrine, both of them are liable for that, which I think is completely correct. But, you know, the kind of nitpicky libertarian would say, no, it’s only the guy with a shotgun.

Stephan Kinsella (34:46): I don’t know why they don’t blame the shotgun itself, you know, right? He wasn’t the pellets flying through the air that went into the body. I mean, these guys have no—I think their mistake is that they have a mechanistic and an illegally ignorant view of the way things work, a mechanistic view of things. They falsely believe that if you give responsibility to the other guy or to the guy higher up the chain, like the general or the president or the mafia boss or the bank robbery planner, if you give them responsibility, like, they think there’s a fixed pie of responsibility, like 100, and if you give 10, 50, 90 to the planner, then that leaves less left over for the actual guy who committed it, right? But there’s enough responsibility to go around. They don’t even know the concept of joint and several liability, which means they’re both 100% liable. That blows their minds because they’re not lawyers, they’ve never heard of this. I mean, this is a common concept over the centuries, it’s not that difficult. Know about Rothbard’s strict causal liability, or I forgot the name of the specific what it was, you know, where he’s a bit too narrow.

Nick Sinard (35:56): Strict liability, yeah. Wasn’t that in his, like, air pollution?

Stephan Kinsella: It might have been. And that’s one thing I haven’t worked on too much. I would like to someday because I think libertarians have a—well, there’s an underdeveloped theory of strict liability. And I think it’s got a lot of flaws in it. They take for granted some aspects of strict liability law as it’s developed, which I think is wrong. Tort law is all messed up. So, you know, they seem to think—I think their fundamental mistake is they think that liability comes from ownership, right, instead of action. That’s their mistake. And I’ve identified this in a couple of long blog posts. But liability—and they’ll do this kind of Republican thing where, you know, Republicans say, well, we have rights, but rights come with responsibilities, you know. So libertarians buy into this crap too. They’ll say, well, if—they do it implicitly—they’ll say, if you own property, then you’re responsible for someone being harmed by it. It’s like, wait, that actually is not true. Ownership is the right, it’s not a responsibility. It’s not a responsibility at all. You’re not responsible for your property, that’s stupid. You’re responsible for your actions, because actions are what harm other people or what violate their property rights.

Stephan Kinsella (37:12): So, for example, if I shoot you with a gun, I’m liable because I shot you with a gun, not because I own the gun, right? Like, if that was the case, I could just avoid responsibility by stealing someone else’s gun, but then I could shoot as many people as I want because I don’t own the gun. It’s ridiculous. And likewise, if someone steals my gun and they shoot someone with it, I shouldn’t be responsible. After all, it’s my gun, right? But you didn’t commit the aggression, right? So ownership of the means used to commit aggression is irrelevant in the analysis of responsibility. It’s all about action. And for action, we just simply need to identify the structure of that actor’s action and what means he employed, what was his goal, and was he successful. It’s got nothing to do with ownership. Because you gotta remember, means is an economic concept, it’s not a juristic concept, it’s a descriptive concept, not a prescriptive concept. Means—something in the world that can be physically or actually employed by a human actor to causally interfere in the world to achieve a result. This is all descriptive, it’s all economics, all things that could happen on a desert island, has nothing to do with law, justice, norms, property, whatsoever. It’s got to do with control and possession and the ability to manipulate and handle. So that’s what means are. And so responsibility, legally, for an action flows from your taking an action that employs certain means that did causally, efficaciously cause someone else’s body or resources that they own to be invaded.

Stephan Kinsella (39:00): So this is the mistake people make, and I don’t blame them for this because this area is confusing and hasn’t so far been developed very far. But we do, we do need to do that. We do need to distinguish between economic concepts and juristic or normative concepts.

Nick Sinard (39:19): Really, the most work that’s been done is just your piece, you know. Unless I’m just missing a major article or something, that’s the best piece I know about, and one of the—the only one that essentially gets it right when it comes to liability, you know. And it’s a lot to untangle, but really, just thank God for, I guess, Adolf Reinach, you know.

Stephan Kinsella: I agree. And I mean, that guy, this is Adolf Reinach, who was a great—I think he’s a phenomenologist, kind of a Kantian type, legal philosopher in—I guess he was German, right, or Austrian?

Nick Sinard (40:03): Austrian, Germany, but he died in World War I, I think he died in World War I at a very early age.

Stephan Kinsella: And he, I don’t think he was 40 yet. He’d already written a lot of great things, and it’s a shame—well, of course, it’s a shame he died, but no telling what the guy would have produced if he had lived longer. But yeah, I think, and my work is not comprehensive and complete, it’s more of a sketch towards a theory. But the only reason mine is solid is because I carefully built upon other foundations. But I think the reason the other work is sort of unsatisfying is, number one, libertarianism is really relatively new. Not so far, not a lot of areas have been dealt with in detail. We just defer to the mainstream thinkers on this stuff, and they’re, of course, not going to be informed by Austrian economics and by careful libertarian analysis. So they might be good scholars in their little narrow field, like legal scholars or whatever, but they’re always gonna miss something when they come to normative thinking because they’re not libertarians. And by contrast, a lot of libertarians are really not sophisticated and deeply mired in legal theory, so they don’t have a lot of tools to bring those things in when they develop the libertarian take on things.

Nick Sinard (41:06): Back to speech, so yeah, go ahead.

Stephan Kinsella: That’s why you’re able to pretty much demolish IP, because you’re doing something, I think, so—it’s because we have a small, we’re a small group, so there’s only so many people that have the right intersections of knowledge, like in my case, of knowing Austrian economics and praxeology, especially Rothbard and Hoppe’s radical politics and Hoppe’s property theory, but really your estoppel theory, which is built upon Hoppe’s and argumentation ethics, and also just knowing the law, the way it works, which you have to basically know at a certain point to understand strict liability, to understand the way causation has been applied in the law, and also what intellectual property is, because these things are arcane and detailed. So you have to have people that know all that, and there’s a few of us growing out there, but even the ones that are pretty good, like Randy Barnett’s great, but he has a different approach to a lot of things. But he’s made lots of contributions too. But there’s not a lot of us out there. Hopefully, in the future, you know, we’ll keep growing, and people will learn, build on our works, and there will be more progress made in the upcoming decades on, like I said, strict liability, even the area of restrictive covenants. People always get confused about restrictive covenants and things like trusts. And the positive law, the common law, has one way of approaching that, but it’s really legalistic, and it’s just what the law is. And some libertarians just reject things out of hand that they don’t understand because they’re not lawyers. And they’re actually kind of right to be suspicious and skeptical, but—

Nick Sinard (42:52): And some of them say, well, you could never have a restrictive covenant because the way they have accrued understanding of what property rights and contracts are.

Stephan Kinsella: But I think I could explain why restrictive covenants are perfectly legitimate, and lawyers would be able to craft a clever document to create one, and I can explain how. It just takes a while, and I haven’t written on it much, but I want to do that too. That’s another thing on my list to explain why restrictive covenants work. I mean, at worst, I mean, even by their logic, at worst, it could be just, hey, you do this, you transfer ownership of X amount of money, you know, or you do this, you lose your rights to your home, you know.

Nick Sinard (43:26): And I mean, I don’t know, I’ve seen many libertarians be against HOAs, but they almost act as if they’re mini-states.

Stephan Kinsella (43:38): Yes, and part of the reason, again, is this sort of anti-authoritarian thing. They’re just—they don’t like being told what to do. But the answer is, well, then don’t own a piece of property and give parts of your rights away to your neighbors, right? You know, it’s like, don’t go into business with other people if you don’t want co-owners. Don’t have a co-owner, but if you do, don’t whine about it.

Nick Sinard (44:01): Yeah, the only thing, well, I mean, I guess with HOA, is the whole co-ownership thing, because then, I don’t know, it kind of, for me, it seems too similar to Rothbard’s, you know, literally copyright, you know, the common law, well, you don’t have the right in this book to copy kind of thing, you know. It seems super similar, and that’s why I’m—I mean, maybe—

Stephan Kinsella (44:22): Okay, well, let’s go into that. So the mistake Rothbard made there was, he said, well, first of all, he leaned upon this legal doctrine of the bundle of rights, which I’ve always found to be unhelpful. It’s the way of saying that, well, if you own a right, and the common law is really messy because of the roots in feudalism, like, so in the civil law, you say you own a piece of land, you’re the owner, that’s it. Whereas in the common law, it’s all these terms like fee simple, and it’s sort of feudalistic-based, you know. But what were you just talking about? I had a brain fart.

Nick Sinard (45:07): Oh, the copyright, like Rothbard’s common law copyright and—

Stephan Kinsella: Yeah, so what Rothbard says, he goes—and it’s strange that Rothbard messed this up because he’s the one who pioneered a brand-new thinking of what contract should be, instead of being binding promises, which is how the law conceives of it, which then they have to fix undesirable implications of it, like specific performance and voluntary slavery. They have to fix that with a patch, and Rothbard even does that. He fixes his own wrong interpolations of his own contract theory with his own patch, like he says debtor’s prison wouldn’t be just in most cases because it would be disproportionate punishment, which is a patch, it’s not true. But Rothbard’s contract theory views contract as just the exercise by an owner of a resource, the alienation of title to it to someone else. It’s a transfer of title. And so, in that theory, you could have, like, a contract between people doesn’t need to be complete, it could be partial. Like, I can loan my car to you for a week instead of forever, instead of giving it, selling it to you, or giving it to you. Or I can loan you my car, or we can co-own an apartment, and I get to use it on even-numbered months, and you get to use it on odd-numbered months. So we’re co-owners, we split it up that way, right? So you can have a contract between you which shows what ownership means. That’s the bundle of rights idea—you can divide rights up in different ways by clever contracting.

Stephan Kinsella (46:35): Now, in the law, there’s some dispute about whether these divisions are contract between the people or whether they’re called real rights, their ownership rights. But that’s another legal thing that you need to be aware of to make progress on these doctrines, you know, like oil and gas leases are considered leases in some states and considered property rights in other states, different ways of looking at it. But they have different results sometimes, depending on how you classify things. But, in any case, what Rothbard says is that if you have a contract, if you sell someone a book, and you have a contract about—I think a mousetrap example—you sell someone a mousetrap, and the condition is you can’t copy this mousetrap, then the way he envisions it is, because there’s a bundle of rights, I’m only giving the buyer partial ownership of the mousetrap. I’m reserving the right to copy. So he has this mousetrap with, it’s missing the right to copy. So if he sells it to someone else, they don’t have the right to copy it either, because they don’t have a mousetrap with this right to copy built into it. But that’s sort of an overextension of this bundle of rights idea. I mean, the right to copy was never part of the bundle of rights. The right to copy is the implication of the libertarian non-aggression principle, which basically implies that you can do any action you want in the world as long as it doesn’t commit aggression against someone else, right, or trespass. So the right to copy just means to use information that you have. If you acquire the information, then you can use it, that’s it.

Stephan Kinsella (48:03): So if you have information, and you make it public, then other people can use it, and when they use that information, they don’t violate anyone’s rights. So if I sell a mousetrap, and the public aspect of the mousetrap that people can see reveals some kind of new feature or new design, then they’re going to learn. So I’m basically, by selling the mousetrap, I’m teaching everyone, I’m publicizing information. So then you can’t—you can’t whine about it. So Rothbard goes off track there. Now, restrictive covenants are different because—so Rothbard is trying to talk about information. The information is never and cannot be the subject of property. Rothbard almost recognizes this because he says that—he has the key insight that all rights are property rights. But because his writing didn’t stick as closely to the idea of scarcity, scarce means, as Mises and Hoppe did, he sort of lost sight of the importance of action involving scarce resources or scarce means. So that, when he said all rights are property, all human rights are property rights, he should have then emphasized the next language, and all property rights are rights of control over scarce resources, right? That’s what they are. You literally cannot have a property right in information.

Stephan Kinsella (49:59): Information is another feature of human action. So human action has scarce means, so this is what Mises, his Kantian and praxeological framework, and Hoppe, they keep emphasizing praxeology. Humans employ means to achieve ends, but they do it with access to knowledge or information that guides their actions. So you have two things that are crucial about successful action. Number one, you have availability of a means that you can employ, and number two, you have knowledge that guides what you do. Those are two different things. And the means are scarce, and that’s why property rights make sense for those, right? So property rights never can apply to information, they only apply to means, because property rights are enforced by force, and force is a physical thing that only applies to the physical means in the world, the things that causally interfere. That’s how this all works. Rothbard, I think he lost sight of that because he didn’t emphasize scarcity and means so much in praxeology in his writing. So he lost sight of that when he said that all human rights are property rights, but he forgot to realize that that’s only property rights in scarce means, right? So then he started thinking, well, there can be property rights in knowledge too, because knowledge of the design of a thing is part of the bundle of rights. And that’s where he made that mistake.

Nick Sinard (50:43): I guess the reason why I was thinking the comparison between HOA and that, which now I understand why it’s not connected to HOA, was because of the idea of, like, co-ownership, correct? Which I’ve always been pretty skeptical. I mean, I know that you can make arrangements, and, like, let’s say if you co-own, I don’t know, a timeshare with somebody else, sure, I can easily say, okay, you two have a better claim to it or better reason to be able to exclude others from using it than some third party. But it just seemed like I had a problem, or I still have problems with ownership, just because it seems like there can be conflicts, unless you just have some already pre-made conflict resolution kind of deal. It just seems like, considering only one person can own something, you know, necessarily, it just seems kind of—

Stephan Kinsella (51:25): Yeah, and Hoppe sort of, in some of his property rights, he kind of implies there can only be one owner. But, like, it has to be indivisible. But if you just imagine a marriage, you know, a husband and wife, they’re, in a sense, co-owners of their property. As far as dispute resolution issues or even amendments to the agreement, those either are specified explicitly, or if they’re not, then the presumption, the way the law works in the common law, and the way it should work, I think, in private libertarian law, is that there’s a default of some—there’s default assumptions or gap-fillers or what we call suppletive terms. And so, if in the absence of a stated condition, all the dispute resolver can do, like the arbitral tribunal, the judge, the jurors, whatever, all they can do is try to guess at what the parties intended. And if they have to take a guess that you say is wrong, that’s the fault of the parties for not being explicit. So when they’re not explicit, it’s because they’re lazy, or they don’t want to spend resources papering it, or they don’t really care. They figure that whatever’s reasonable, whatever the jury would determine using reasonable standards, they’re fine with the outcome, which is basically the way I would look at it.

Stephan Kinsella (52:37): And in the law, I think the positive law now would have different ways of looking at co-ownership. I think in some jurisdictions, they would look at it—now, they don’t care too much because the courts enforce whatever they say, so they get the results. But I think some scholars would say, well, a co-ownership situation is where A and B both co-own something, like a husband and wife both co-own a house. And another way to look at it would be that one of them owns it, but the other one has a contract right. And whether that makes a difference or not is hard to see. I’ve never devoted a lot of time to that because it’s premature. I think that maybe the way the positive law looks at it would be the way that private libertarian legal scholars would look at it after the libertarian law has been developed, but it’s premature to guess. Because, right, we would need to first develop the private libertarian law, mostly along the current lines, but then see how it’s classified. My personal leaning is that the way it is, is—imagine a sale. A owns a car and sells it to B. Now, why does B own the car now?

Stephan Kinsella (54:02): B owns the car. The way I would say it is this: the sale, as I characterize in my contract article, is not a binding promise, but it’s an alienation of title. And the reason the alienation of title works is it’s effectively an abandonment by the owner and then a re-homesteading by the buyer. So it’s an abandonment arranged in a way to put the buyer in position to—it’s like throwing a football pass, you’re throwing at the receiver, and you design it so that only he catches it, you know. So we arranged it so that the buyer is in position to re-homestead it by either letting him have possession of it or some other technique. Okay, but why does B own it? To own something is not a contract right, it’s an in rem right, it’s a real right, good against the world. That means that someone can’t take my car without permission, not because I have a contract with them, but because it’s mine, right? So I don’t need to go around having a contract with all 8 billion people on the Earth who agree not to take my car. It’s my car because there’s only one car, and I have the best connection to it. But in property theory and libertarian theory, the best connection is the first user, the homesteader.

Stephan Kinsella (55:08): Okay, now I’m assuming this guy found the materials for the car, the first guy found the materials for the car himself in the state of nature, made the car himself. That’s unrealistic, but let’s assume he’s the first possessor of the car. So he’s the owner of it. Well, A is still the first possessor of the car, so why doesn’t he have a better claim than B? And the answer is because he abandoned in favor of B. But, so, from the rest of the world, from C, D, E’s point of view, A owns the car because he has the better claim to it, because he owned it first. But I should have picked an apple or something as a better example, something you find in the state of nature. But anyway, B has a better claim than everyone else because he stands—it’s like subrogation in insurance law—he stands in A’s place because, basically, he can make A’s claim. If C challenges B for the car, B can say, well, A has a better claim than you, and I have a better claim than A because A gave it to me, right? So, sort of like a blending of contract and property law. Property law would be A’s claim because of first homesteading, and B’s claim would be based on contract, which is an application of ownership, is what the owner A did.

Stephan Kinsella (56:14): So, in a sense, from the rest of the world, A and B are co-owners of that car, because, as a unit, A plus B together have a better claim than anyone else in the world. But as between A and B, B can defeat A’s claim because A would be estopped from claiming ownership of the car. That’s why my estoppel theory would come in. Okay, so I think of co-ownership as similar to that situation. So if a husband and wife or two business partners own a building, then to the rest of the world, you can look at A and B as a unit, like they’re not really a corporation, but they’re just, as a pairing, A plus B together have a better claim than C, D, and E. So, basically, the rest of the world is excluded. Now, as between A and B, their usage of that depends upon their private contract with each other. So if we have a timeshare, and 10 people own this timeshare condominium in Florida, then there’s a contract between them that they’ve all signed, which is not binding on the rest of the world. For the rest of the world, these 10 owners own it, and the rest of the world can’t use the condo because they’re not part of this agreement. But as between those 10 owners, they have a contract saying, well, there’s a decision-making unit, like a board, which is appointed according to the following rules, and then the owners get to vote on the board, constitution, you know, sort of like a corporation, like a board of directors, that kind of thing.

Stephan Kinsella (57:37): And then it might even have provisions saying, okay, the shareholders’ agreement or the co-ownership agreement over this condo is written down on this piece of paper, and it might have a clause saying, and it can be amended by the following procedure, like it can be amended if two-thirds of the owners vote to amend it, you know. You could have things like that in there. And if you don’t have it, or if there’s a cloudy provision, or then, if these guys have a dispute between each other, there’s probably a dispute clause in there saying, if we have a dispute, it has to be settled by arbitration. The arbitrator’s gotta try to do the best he can, given the ink spot—yes, what called the Ninth Amendment, you know. This Ninth Amendment meant nothing to him. He said it’s as if there was an ink spot on—someone had spilled their ink over Article Nine of the Bill of Rights, and a judge is trying to interpret it, but there’s an ink spot over here, you can’t read what it says, so he can’t—he doesn’t know what to enforce, you know.

Stephan Kinsella (58:32): Private judges or arbitrators are in that position if the parties were too lazy or incompetent or cheap or impatient or whatever to include a provision addressing the situation that came up. And it’s basically impossible to have a comprehensive contract because the world is uncertain, the future is uncertain. There will always, necessarily, be things that come up that were not contemplated, which, by the way, is why I think the whole idea of smart contracts is a complete—this Bitcoin idea, this Ethereum idea of smart contracts, I think makes no sense whatsoever. But that’s me, I’m a crank on that issue.

Nick Sinard (59:15): I guess my biggest thing was, with common ownership, wasn’t so much against the world, but just the co-owners, because, you know, the purpose or function—I don’t know if I like either of those words—for, you know, rights is just avoiding interpersonal conflict. So, you know, if you could imagine just a husband and a wife disagreeing on what temperature to set it on, you know, and you do have a conflict, or one’s swatting away the other’s hand, you know, it’s kind of like, yes, it’s small, yes, it’s hard to do from an armchair, but—

Stephan Kinsella: And you need more context, blah, blah, blah, but it just seemed like if we’re going to have a comprehensive and consistent rights theory, then it seems like you would need something that could at least guide—

Nick Sinard (59:56): Yeah, but I think the way the law has dealt with these things is the right way to do it. So, basically, if the husband and wife can’t decide what to do with the thermostat, then, from the rest of the world’s point of view, the husband and wife own this home, it’s none of the rest of the world’s business how they do it. Now, the husband and wife have a dispute with each other. Now, they’re supposed to be married and cooperative, so they’re supposed to figure it out between themselves. But if they can’t, then, basically, they have to get a divorce, and then the assets have to be split up. The same thing happens when, like, someone dies, and they leave a big estate, like they say they leave the family mansion to three different heirs, three children. Now, the three kids can’t decide what to do with the house, like they could all use the house together, but if they can’t decide, like if only one person disagrees, they can force a sale. So that you sell the house at the highest price at an auction, unless they can’t agree on how to do it, they have to sell at an auction, and then the money is split up according to the will’s pro rata, you know, the testament’s division of assets.

Stephan Kinsella (1:01:05): So if co-owners can’t agree, then they have to—they have to split it up, usually according to the provision in the agreement in the first place. But there’s ways of handling these things.

Nick Sinard (1:01:17): I feel, I mean, I definitely see, I guess I’m more convinced that co-ownership is a possibility, although it does feel like something that has not been written on that much.

Stephan Kinsella: It hasn’t, and so that’s why. And it hasn’t because most libertarians, again, are not deeply familiar with the way the positive law has dealt with this, so they don’t know what to borrow from and critique and adjust and tweak, or even just adopt wholesale. Or they adopt wholesale without thinking about it. You can’t just adopt wholesale. They do this all the time. They’ll just say, well, the law says this, it’s like, well, that’s what the positive law says, but it doesn’t necessarily mean that’s the right libertarian result.

Nick Sinard (1:01:54): Right, well, many try to reinvent the wheel, you know. Many, especially newer libertarians, seem like they want to reinvent the wheel, don’t want to read, they just want to, you know—

Stephan Kinsella: But I think sometimes we’re forced to reinvent the wheel to some degree, but we have to do it cautiously, humbly, and preferably as armed as possible with knowledge of all the other things, so that you don’t do it—you do it to the bare minimum amount necessary. But I think you’re right that the ultimate purpose of property rights is, it’s a practical social institution designed to permit cooperation and conflict to be avoided, tremendous cooperation, entrepreneurial conflict to be avoided. And so, I think probably the best way to look at it is, if there’s a co-ownership situation, what that means is that, for the rest of the world, these co-owners are the owner, but as between themselves, they have a contract, and that contract specifies how the thing is used so that they can use it without conflict.

Stephan Kinsella (1:02:38): I mean, look, if you take someone on a ride in your car, and they’re a passenger, then you’re giving them the right to use the car for certain purposes, but not—and you retain most of the rights on that car. It’s a division of rights, it’s temporary, but that’s the way it is. Or if you lease the car, if Avis rents me a car, hires me, if I hire a car, as the Brits would say, I have the usage rights over that car, which technically is a property right, it’s the right to use the car, but it’s a limited right, you know. They retain the full rights of the car when the rental period expires, and while I’m using it, I only have partial rights over it. Even then, I can’t use—I can’t smoke in it, I can’t drive it to Canada, I can’t blow it up, you know, I can’t repaint it.

Nick Sinard (1:03:43): I mean, I’ve heard, yeah, I’ve heard you say this, similar things before, but I guess I don’t know why right now it’s more clicking together. Co-ownership, I mean, I know you’ve said that stuff, like, 10 times in different episodes, because it seems like in your episodes, you go over the same things over and over again, you know, which, it’s generally the fundamentals, though.

Stephan Kinsella: But, like, in Louisiana, in the civil law, there’s an interesting legal expression, like a husband and wife are said to—well, there’s community property, so everything that husband and wife, either one, acquires during their marriage is community property, and they’re said to co-own that in indivision, okay? So that’s an interesting concept, in indivision, which means it’s not divided, which means that’s my conception of—from the rest of the world’s point of view, it’s one piece of property that’s 100% owned completely by those two people. But, and as between those two, how they govern it is up to them to agree upon or disagree or compromise or whatever. And if they can’t, then they have to get a divorce, and then it’s divided, right? Then it’s not owned in indivision anymore because it’s not indivisible, it’s been divided now, which means you take the asset, you sell it, you split up the proceeds, half the cash goes to one, half to the other, and then they go their own ways, right? But so long as it’s co-owned, it’s owned in indivision, which simply means that the rest of the world sees it as an owned unit by this group of people, which is how corporations, I think, would work too, to be honest.

Stephan Kinsella (1:05:14): But anyway, I think, I mean, I think we should close. Let’s find—let’s finish up what you want to ask now that I need—let’s close it out, and we can do another session later if you have more. But go ahead.

Nick Sinard (1:05:27): I guess to finish it up, just, with Facebook and Twitter and all that, going back to the first thing, being part of the state, the big thing is, if they’re cooperating or being funded by—the main thing is, are they helping commit aggression, are they committing aggression? And really, calling Facebook as a part of the state gets into dangerous grounds of opening up for legislation.

Stephan Kinsella: I would say, if they’re committing aggression, we should oppose that. We should condemn it, and we should oppose whatever makes that possible, which is usually the state. So we should oppose a state forcing them to commit aggression or regulating so much that it’s inevitable, and we should oppose the state being usable as a means for these corporations to commit aggression, like, for example, if Facebook uses its patents—or not Facebook, let’s say Apple, Apple or Google or Motorola or, you know, they use their—they use their patent, or Microsoft—if they use their patents to stop competition, they’re using the state’s force. In that case, you can blame the state too, because the state handed out these. So the state’s intervening in the market, but then you have private companies using state force against innocent parties, right? Same thing with antitrust law. You can bring an antitrust lawsuit in civil courts against someone who you think is a bad guy. So, and defamation, defamation is too, copyright, copyright infringement. So, but we already oppose those laws as libertarians. So the reason that these corporations are committing aggression is because they’re employing the illegal arms of the state, in a sense, you know. But the solution is not to say, well, the state’s laws should be aimed not only at the state and its private actors, but it should be aimed also at these extra private actors, because that’s expanding the scope of the state and the power of the state, right? Very dangerous.

Nick Sinard (1:07:14): But, I mean, that’s all I’ve got to say for this one, and thank you for, you know, allowing me to be on.

Stephan Kinsella: Yeah, I mean, I would guess, like, to do another one at some time, you know, but it would be more inside baseball first. Okay, this is—before, I feel like anything’s fine with me.

Nick Sinard: Alright, well, thank you very much.

Stephan Kinsella: Thanks, Nick.