According to Mr. Trump’s lawsuit against the Times he was falsely accused of having had an “overarching deal” with “Vladimir Putin’s oligarchy” to “help in the campaign against Hillary Clinton” in exchange for “a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions.”
Some commentators dismiss plaintiff’s case on the ground that defendant was only uttering an opinion, and these are black letter law protected speech.
But it is difficult to maintain this stance. For these appear to be factual claims. Did Trump have a “deal” with “Vladimir Putin’s oligarchy?” This either occurred or did not. The “overarching” element may well be a mere opinion but that is a different matter.
President Trump objected to this statement emanating from CNN: “Soliciting dirt on your opponents from a foreign government is a crime. Mueller should have charged Trump campaign officials with it.” In like manner, this has all the earmarks of a factual claim. To wit: The Donald is guilty of criminal behavior.
Nor can the Washington Post escape this charge. Plaintiff objects to the statement to the effect that Trump’s campaign “tried to conspire with” a “sweeping and systemic” attack by Russia against that election. Again, either this occurred or it did not. It is difficult to see why this is a mere opinion, and not a claim about a fact.
Why, then, should this lawsuit be dismissed?
It is because libel laws, all of them without exception, are logically problematic. They all aver, in effect, that libel is akin to theft. Only what is being stolen is not a car or a coat or a cabinet, but rather a reputation. Even though the former are physical objects, and the latter is not, still, a reputation can be far more valuable than anything that occupies space. Often, business are sold with “good will” comprising the lion’s share of their value.
The difficulty is that reputations are simply not the possessions of those to whom they apply. Donald Trump’s reputation consists of the thoughts of other people about him. None of his reputation, absolutely none of it, consists of what he thinks about himself. But does he own the thoughts of other people? To ask this is to answer it. Of course not! Thus, since all that is being “taken away” from him, is something he does not own in the first place, to which he has no property right, he has no proper remedy in court.
Our president works hard to promote his reputation; he benefits from having people think well of him. But, paradoxically, Donald Trump does not, cannot, own his own reputation, since it is a clear possession of others.
Would reputations, even though not owned by the people to whom they apply, be safer or more at risk under a legal regime where there were no laws against libel? This is an empirical question, not a matter of pure logic. However, at present, people are likely to base their judgements on the old adage: “Where there’s smoke, there’s fire.” Perhaps they will discount part of an allegation, but not likely all of it. So libelous statements have significant power to ruin reputations.
But in the absence of laws prohibiting critical statements, they would come thick and fast. In addition to help wanted columns, personal advertisements, houses for sale sections of newspapers, there would now be those devoted to libel: “Joe is a bum.” “Mary is stupid.” “Peter takes baths with a rubber duckie.” And, paradoxically, their sheer number would render them all but impotent to harm anyone’s reputation. Evidence would have to be proffered before harm would ensue.
The reputations of the New York Times, Washington Post and CNN are at stake in these lawsuits against them. They can suffer if Trump prevails. But this would be unjust, since in besmirching his reputation, they did not in effect steal any possession he rightfully owned.
Freedom of speech is one of the foundations of the civilized society. Libel laws undermine this bedrock of liberty.
Walter E. Block is Harold E. Wirth Endowed Chair and Professor of Economics, College of Business, Loyola University New Orleans, and senior fellow at the Mises Institute.