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16. Knowledge, True and False

0 ur theory of property rights can be used to unravel a tangled skein

of complex problems revolving around questions of knowledge,

true and false, and the dissemination of that knowledge. Does

Smith, for example, have the right (again, we are concerned about his

right, not the morality or esthetics of his exercising that right) to print and

disseminate the statement that "Jones is a liar" or that "Jones is a convicted

thief" or that "Jones is a homosexual"? There are three logical possibilities

about the truth of such a statement: (a) that the statement about Jones is

true; (b) that it is false and Smith knows it is false; or (c) most realistically,

that the truth or falsity of the statement is a fuzzy zone, not certainly and

precisely knowable (e.g., in the above cases, whether or not someone is a

"liar" depends on how many and how intense the pattern of lies a person

has told and is adjudged to add up to the category of "liarM-an area

where individual judgments can and will properly differ).

Suppose that Smith's statement is definitely true. It seems clear, then,

that Smith has a perfect right to print and disseminate the statement. For

it is within his property right to do so. It is also, of course, within the property

right of Jones to try to rebut the statement in his turn. The current libel

laws make Smith's action illegal if done with "malicious" intent, even

though the information be true. And yet, surely legality or illegality should

depend not on the motivation of the actor, but on the objective nature of

the act. If an action is objectively non-invasive, then it should be legal regardless

of the benevolent or malicious intentions of the actor (though the

latter may well be relevant to the morality of the action). And this is aside

from the obvious difficulties in legally determining an individual's subjective

motivations for any action.

It might, however, be charged that Smith does not have the right to

print such a statement, because Jones has a "right to privacy" (his "human"

right) which Smith does not have the right to violate. But is there really such

a right to privacy? How can there be? How can there be a right to prevent

Smith by force from disseminating knowledge which he possesses? Surely

there can be no such right. Smith owns his own body and therefore has

the property right to own the knowledge he has inside his head, including

his knowledge about Jones. And therefore he has the corollary right to print

and disseminate that knowledge. In short, as in the case of the "human

right" to free speech, there is no such thing as a right to privacy except the right

to protect one's propertyfiom invasion. The only right "to privacy', is the right to protect one's property from being invaded by someone else. In

brief, no one has the right to burgle someone else's home, or to wiretap

someone's phone lines. Wiretapping is properly a crime not because of

some vague and woolly "invasion of a 'right to privacy'," but because it

is an invasion of the property right of the person being wiretapped.

At the present time, the courts distinguish between persons "in the

public eye" who are adjudged not to have a right to privacy against being

mentioned in the public press, and "private" persons who are considered

to have such a right. And yet, such distinctions are surely fallacious. To

the libertarian, everyone has the same right in his person and in the goods

which he finds, inherits, or buys-and it is illegitimate to make distinctions

in property right between one group of people and another. If there were

some sort of "right to privacy," then simply being mentioned widely in

the press (i.e. previous losses of the "right") could scarcely warrant being

deprived of such right completely No, the only proper course is to maintain

that no one has any spurious "right to privacy," or right not to be

mentioned publicly; while everyone has the right to protect his property

against invasion. No one can have a property right in the knowledge in

someone else's head.

Zn recent years, Watergate and the Pentagon Papers have brought

to the fore such questions as privacy the "privileges" of newspapermen,

and the "public's right to know." Should, for example, a newspaperman

have the right to "protect his sources of information" in court? Many

people claim that newspapermen have such a right, basing that claim

either (a) on special "privileges" of confidentiality allegedly accruing to

newspapermen, lawyers, doctors, priests and psychoanalysts, and/or

(b) on the "public's right to know" and hence on the widest possible

knowledge as disseminated in the press. And yet, it should be clear by

this point that both such claims are spurious. On the latter point, no one

person or group of people (and therefore "the public") has the right to

know anything. They have no right to knowledge which other people

have and refuse to disseminate. For if a man has the absolute right to

disseminate knowledge inside his head, he also has the corollary right

not to disseminate that knowledge. There is no "right to know"; there is

only the right of the knower to either disseminate his knowledge or to

keep silent. Neither can any particular profession, be it newsmen or physicians,

claim any particular right of confidentiality which is not possessed

by anyone else. Rights to one's liberty and property must be universal.

The solution to the problem of the newsman's sources, indeed, rests

in the right of the knower--any knower-to keep silent, to not disseminate

knowledge if he so desires. Hence, not only newsmen and physicians, but everyone should have the right to protect their sources, or to be silent,

in court or anywhere else. And this, indeed, is the other side of the coin

of our previous strictures against the compulsory subpoena power. No

one should be forced to testify at all, not only against himself (as in the

Fifth Amendment) but against or for anyone else. Compulsory testimony

itself is the central evil in this entire problem.

There is, however, an exception to the right to use and disseminate

the knowledge within one's head: namely, if it was procured from someone

else as a conditional rather than absolute ownership. Thus, suppose

that Brown allows Green into his home and shows him an invention of

Brown's hitherto kept secret, but only on the condition that Green keeps

this information private. In that case, Brown has granted to Green not

absolute ownership of the knowledge of his invention, but conditional

ownership, with Brown retaining the ownership power to disseminate

the knowledge of the invention. If Green discloses the invention anyway,

he is violating the residual property right of Brown to disseminate knowledge

of the invention, and is therefore to that extent a thief.

Violation of (common law) copyright is an equivalent violation of

contract and theft of property. For suppose that Brown builds a better

mousetrap and sells it widely, but stamps each mousetrap "copyright

Mr. Brown." What he is then doing is selling not the entire property right

in each mousetrap, but- the right to do anything with the mousetrap except

to sell it or an identical copy to someone else. The right to sell the~rown

mousetrap is retained in perpetuity by Brown. Hence, for a mousetrap

buyer, Green, to go ahead and sell identical mousetraps is a violation of

his contract and of the property right of Brown, and therefore prosecutable

as theft. Hence, our theory of property rights includes the inviolability

of contractual copyright.

A common objection runs as follows: all right, it would be criminal

for Green to produce and sell the Brown mousetrap; but suppose that

someone else, Black, who had not made a contract with Brown, happens

to see Green's mousetrap and then goes ahead and produces and sells

the replica? Why should he be prosecuted? The answer is that, as in the

case of our critique of negotiable instruments, no one can acquire a greater

property title in something than has already been given away or sold.

Green did not own the total property right in his mousetrap, in accordance

with his contract with Brown-but only all rights except to sell it or a

replica. But,therefore Black's title in the mousetrap, the ownership of the

ideas in Black's head, can be no greater than Green's, and therefore he

too would be a violator of Brown's property even though he himself had

not made the actual contract.

Of course, there may be some difficulties in the actual enforcement

of Brown's property right. Namely, that, as in aN cases of alleged theft or

other crime, every defendant is innocent until proven guilty. It would be

necessary for Brown to prove that Black (Green would not pose a problem)

had access to Brown's mousetrap, and did not invent this kind of

mousetrap by himself independently. By the nature of things, some

products (e.g., books, paintings) are easier to prove to be unique products

of individual minds than others (e.g., mo~setraps).~

If, then, Smith has the absolute right to disseminate knowledge about

Jones (we are still assuming that the knowledge is correct) and has the

corollary right to keep silent about that knowledge, then, a fortiori, surely

he also has the right to go to Jones and receive payment in exchange for

not disseminating such information. In short, Smith has the right to "blackmail"

Jones. As in all voluntary exchanges, both parties benefit from such

an exchange: Smith receives money, and Jones obtains the service of Smith's

not disseminating information about him which Jones does not wish to

see others possess. The right to blackmail is deducible from the general property

right in one's person and knowledge and the right to disseminate or

not disseminate that knowledge. How can the right to blackmail be denied?2

Furthermore, as Professor Walter Block has trenchantly pointed out,

on utilitarian grounds the consequence of outlawing blackmail--e.g., of

preventing Smith from offering to sell his silence to Jones-will be to encourage

Smith to disseminate his information, since he is coercively blocked

from selling his silence. The result will be an increased dissemination of

derogatory information, so that Jones will be worse off from the outlawry

of blackmail than he would have been if blackmail had been permitted.

Thus Block writes:

What, exactly is blackmail? Blackmail is the offer of a trade; it

is the offer to trade something, usually silence, for some other

good, usually money. If the offer of the blackmail trade is accepted,

then the blackmailer maintains his silence and the blackmailee

pays the agreed amount of money. If the blackmail offer is

rejected, then the blackmailer may exercise his right of free

speech, and perhaps announce and publicize the secret. . . .

The only difference between a gossip and blabbermouth and

the blackmailer is that the blackmailer will refrain from speaking-

for a price. In a sense, the gossip or the blabbermouth is

much worse than the blackmailer, for the blackmailer at least

gives you a chance to shut him up. The blabbermouth and

gossip just up and spill the beans. A person with a secret he

wants kept will be much better off if a blackmailer rather than

a gossip or blabbermouth gets hold of it. With the blabbermouth

or gossip, as we have said, all is lost. With the blackmailer,

one can only gain, or at worst, be no worse off. If the

price required by the blackmailer for his silence is worth less

than the secret, the secret-holder will pay off, and accept the

lesser of the two evils. He will gain the difference to him

between the value of the secret and the price of the blackmailer.

It is only in the case that the blackmailer demands more than

the secret is worth that the information gets publicized. But in

this case the secret-keeper is no worse off with the blackmailer

than with the inveterate gossip. . . . It is indeed difficult, then,

to account for the vilification suffered by the blackmailer, at

least compared to the gossip who is usually dismissed with

merely slight ~ontempt.~

There are other, and less important problems, with the outlawry of

a blackmail contract. Suppose that, in the above case, instead of Smith

going to Jones with an offer of silence, Jones had heard of Smith's knowledge

and his intent to print it, and went to Smith to offer to purchase the

latter's silence? Should that contract be illegal? And if so, why? But if

Jones's offer should be legal wkle Smith's is illegal, should it be illegal

for Smith to turn down Jones's offer, and then ask for more money as the

price of his silence? And, furthermore, should it be illegal for Smith to subtly

let Jones know that Smith has the information and intends to publish,

and then allow Jones to make the actual offer? But how could this simple

letting Jones know in advance be considered as illegal? Could it not be

rather construed as a simple act of courtesy to Jones? The shoals get muddier

and muddier, and the support for outlawry of blackmail contractsespecially

by libertarians who believe in property rights-becomes ever

more flimsy.

Of course, if Smith and Jones make a blackmail contract, and then

Smith violates it by printing the information anyway, then Smith has

stolen Jones's property (his money), and can be prosecuted as in the case

of any other thief who has aggressed against property rights by violating

a contract. But there is nothing unique about blackmail contracts in this

regard.

In contemplating the law of a free society, therefore, the libertarian

must look at people as acting within a general framework of absolute

property rights and of the conditions of the world around them at any

given time. In any exchange, any contract, that they make, they believe

that they will be better off from making the exchange. Hence all of these

contracts are "productive" in making them, at least prospectively, better

off. And, of course, all of these voluntary contracts are legitimate and

licit in the free society.4

We have therefore affirmed the legitimacy (the right) of Smith's either

disseminating knowledge about Jones, keeping silent about the knowledge,

or engaging in a contract with Jones to sell his silence. We have so far

been assuming that Smith's knowledge is correct. Suppose, however, that

the knowledge is false and Smith knows that it is false (the "worst" case).

Does Smith have the right to disseminate false information about Jones?

In short, should "libel" and "slander" be illegal in the free society?

And yet, once again, how can they be? Smith has a property right

to the ideas or opinions in his own head; he also has a property right to

print anything he wants and disseminate it. He has a property right to

say that Jones is a "thief" even if he knows it to be false, and to print and

sell that statement. The counter-view, and the current basis for holding

libel and slander (especially of false statements) to be illegal is that every

man has a "property right" in his own reputation, that Smith's falsehoods

damage that reputation, and that therefore Smith's libels are invasions

of Jones's property right in his reputation and should be illegal. Yet, again,

on closer analysis this is a fallacious view. For everyone, as we have stated,

owns his own body; he has a property right in his own head and person.

But since every man owns his own mind, he cannot therefore own the

minds of anyone else. And yet Jones's "reputation" is neither a physical

entity nor is it something contained within or on his own person. Jones's

"reputation" is purely a function of the subjective attitudes and beliefs

about him contained in the minds of other people. But since these are beliefs

in the minds of others, Jones can in no way legitimately own or control

them. Jones can have no property right in the beliefs and minds of other

people.

Let us consider, in fact, the implications of believing in a property

right in one's "reputation." Suppose that Brown has produced his mousetrap,

and then Robinson comes out with a better one. The "reputationff

of Brown for excellence in mousetraps now declines sharply as consumers

shift their attitudes and their purchases, and buy Robinson's mousetrap

instead. Can we not then say, on the principle of the "reputation" theory,

that Robinson has injured the reputation of Brown, and can we not then

outlaw Robinson from competing with Brown? If not, why not? Or should

it be illegal for Robinson to advertise, and to tell the world that his mousetrap

is better?5 In fact, of course, people's subjective attitudes and ideas

about someone or his product will fluctuate continually, and hence it is

impossible for Brown to stabilize his reputation by coercion; certainly it

would be immoral and aggressive against other people's property right

to try. Aggressive and criminal, then, either to outlaw one's competition

or to outlaw false libels spread about one or one's product.

We can, of course, readily concede the gross immorality of spreading

false libels about another person. But we must, nevertheless, maintain

the legal right of anyone to do so. Pragmatically, again, this situation

may well redound to the benefit of the people being libelled. For, in the

current situation, when false libels are outlawed, the average person tends

to believe that all derogatory reports spread about people are true,

"otherwise they'd sue for libel." This situation discriminates against the

poor, since poorer people are less likely to file suits against libelers. Hence,

the reputations of poorer or less wealthy persons are liable to suffer more

now, when libel is outlawed, then they would if libel were legitimate.

For in that libertarian society since everyone would know that false stories

are legal, there would be far more skepticism on the part of the reading

or listening public, who would insist on far more proof and believe fewer

derogatory stories than they do now. Furthermore, the current system

discriminates against poorer people in another way; for their own speech

is restricted, since they are less likely to disseminate true but derogatory knowledge about the wealthy for fear of having costly libel suits filed

against them. Hence, the outlawing of libel harms people of limited means

in two ways: by making them easier prey for libels and by hampering

their own dissemination of accurate knowledge about the wealthy.

Finally, if anyone has the right knowingly to spread false libels about

someone else, then, a fortiori, he of course has the right to disseminate

those large numbers of statements about others which are in the fuzzy

zone of not being clear or certain whether or not the statements are true

or false.