From: Brett Paatsch (paatschb@ocean.com.au)
Date: Fri Jan 31 2003 - 07:49:54 MST
Lee Daniel Crocker (in an interesting 'talk' with Kai Becker) wrote:
[Aside. I did not touch this until Kai responded in another thread.
It's good to see two extropes engaging on a topic so important
as free speech and defamation. May the truth out. ]
----[LDC]
> >> But if all they do is speak, all I can do is speak in return,
> >> and hope that humans with reasonable minds judge us both
> >> reasonably.
- -[KB]
> > Unfortunately, lies can become rumors, which can become
> > "common knowledge", which then lead to actions. Like
> > "if vietnam falls, the communists will invade the US". Or "if the
> > amis come here, they'll rape all German women". Or "Saddam has
> > WMDs", rsp. "Saddam is really dangerous for us". See the book
> > "The Wave" for an example, how fabricated "truth" can influence
> > reality.
>
-[LDC]
> When, and only when, it rises to action can one morally act,
> other than to speak in return; otherwise you fall into the same
> counterproductive idiotic authoritarian nonsense as attempts to
> prevent drug abuse by banning needles or stop gangs by banning
> leather jackets, or stop violence by banning toy guns.
No. These are *at least* different classes of "counterproductive
idiotic authoritarian nonsense".
To speak is an act. To defame is an act. It seems LDC is arguing
that one can only respond in kind - i.e.. speech for speech. More
serious action for more serious action. This is mistaken. Some speech
is extremely serious and some is trivial as are other types of action.
To forbear action until the end of the speech "ready, aim, fire!", for
instance, may be to much forbearance.
> Yes, I have
> no doubt that lies can lead to behaviors, and I'll even concede that
> there's one entity--the government itself--whose speech /should/ be
> regulated, but that's not contradictory at all to my contention that
> free speech is a fundamental human right, because governments
> don't have human rights.
I agree governments don't have human rights. Whether governments
as opposed to people within governments speak is an interesting point.
Certainly, governments, like corporations, can be held responsible at
law for what some of their "agents" do in their capacity as "agents". So
in a way they could be said to speak. But I think this is misleading too.
"Governmental accountability" endures beyond that of individual agents
-in-government passing on - but I don't see that as governments
speaking.
I think free speech is something to be taken very seriously but what
could it mean to say it is a *fundamental* *human right*. Not only
begged is the question of where such rights arise if not in law, the
very law, that may include defamation law.
And separately what is fundamental. Can fundamentals be in conflict
ever, and if so which fundamental prevails and how do we decide?
To use the old chestnut would you LDC actually go so far as to
argue a person should have the right to yell "fire!" in a crowded theatre?
And if not, what's fundamental actually mean as it appears not to mean
absolute or inalienable?
(I know such an action is not defamation but your contention of
*fundamental* *human rights* is something you introduced and it
seems it could be worth being clear about what *fundamental* means
in this sense.)
[snip]
- [LDC]
> Yes, that's exactly what I'm accusing you of--wanting to suppress
> false speech about yourself with force, rather than with competition.
Whoa! On several counts.
(1) Defamation law can only be applied *afterward*. A particular
defamatory statement is not suppressed by a particular defamatory
action at law, the damage of it is rather acknowledged and mitigated
to the extent mitigation is possible and in a proportionate way.
(2) Sure the existence of the defamation laws acts as some disincentive
to general defamatory statements being uttered (but this is in
accordance with the wishes of society or the defamation laws would
not be there long). Surely when a society, a group of voters, through
their representatives decides to enact laws to enshrine rights including
the right to be compensated for defamation by the person doing the
defaming this is not a crude exercise in brute force. If this is brute force
then every restriction on any 'action' or 'freedom' any individual imagines
they have is not just brute force in the mind of the particular aggrieved
individual but is brute force for all. Well, perhaps ultimately, such *is*
force, but if it is force, it is a far gentler and more proportionate use of
force than having every man, woman and child have to defend themselves
against defamatory acts constantly by counter personal actions (with all
the inefficiency and wasted effort that implies). Defamation laws, like
murder laws are forces applied generally to restrict the anti-social (and
defamation is anti-social - as society has determined and rendered into
law) from applying greater force more often and more specifically.
So yes law is about "force" of a sort, but its about the use of lesser force
than otherwise would be required be exerted by each person acting
alone to protect themselves and their reputations.
To oppose such 'force' seems akin to opposing mutual agreements
between people to come to each others aid. That's like opposing the
force a person uses in defending themself against greater force.
The notion of law *merely* as "force" seems too simplistic.
(3) If competition, in its most extreme forms, is not checked, predation
arises. Competition, unchecked, not only arises within an arena, it spills
out of it and you have "jungle law". The law acts like Hobbes notion of
the Leviathan, it helps keep competition *within* the arena more of the
time than it would if the law wasn't there.
- [KB]
> > We don't live in an ideal, rational world. People do judge by
> > rumors and reputation, which is almost never true, objective or
> > rational. You, for example, judge me -whatwasit- to be
> > "left-wing", "anti-american", "naive", etc. without any knowledge
> > about me but the few words I've written here.
>
- [LDC]
> That's true too, and you are free to call me on it, and I'm sure
> there are others here and elsewhere who disagree.
> You can only
> be harmed by my evaluation of you in the minds of those who
> already give me more credibility, in which case the harm is already
> done anyway.
This is not so. No third party has to consider an allegation as either
*entirely* true or *entirely* false based on determining who of two
parties has more credibility. If I was going to get a service from A
and heard B carrying on about getting poor service from A I don't
have to conclude B is necessarily lying to decide on the information
I have I am not better off seeking the same service from C. Indeed
I may seek the same service from C out of what seems to me to be
an abundance of caution. I might *never* learn that C put B up to
do a smear campaign on A. I act on imperfect information by making
probabilistic judgements. Without defamation laws B might make
a career out of selling his smearing services to competitors. Society
recognizing such a possibility is prudent to put in place deterrents
to it. I don't have to esteme B highly for B's statements about A to
cause me to have doubts about A.
> Likewise, you can only damage my reputation
> among those who prefer to believe you,
Not so.
>and I am generally
> unconcerned about how I am perceived by them.
>
Generally unconcerned? Does that imply some special or particular
concerns? "Generally" seems to leave quite a big loophole given free
speech is being argued to be a *fundamental* human right.
- - [KB]
> > Example: "Lee Daniel Crocker is a child molester. Protect
> > your kids, force him out of this town". What would your defence
> > be? Ask for evidences? Have you ever seen a witch-hunt?
> > Remember McCarthy?
>
- [LDC]
> Yes, we remember McCarthy well. What we learned was to
We? Possibly different people learnt different things.
> not to hang witch-hunters instead of witches--what we learned
> is to recognize with-hunts for what they are and better use our
> own judgment.
So long as "we", a collective is getting together to do some learning
why shouldn't "we" the same collective, go the next step, pool some
resources and make a set of mutual promises and alliances. A sort
of set of laws. And if "we" prefers the benefits of a little general
purpose prevention and specifically directed punishment on offenders
-against-the-social-good (defamers) then why shouldn't "we" be
allowed to so decide? Seems in various jurisdictions on the matter
of defamation "we" have, "we" do and "we" can review from time
to time whether the balancing of free speech and defamation laws
has been optimally struck.
> It wasn't new laws that took down McCarthy,
> it was good reporting by men of integrity and courage like
> Edward R. Murrow.
I am glad free speech still has such ardent advocates. But to cherish
every cheap shot as free speech seems to me to show an unnecessary
and arbitrary want of sensible discrimination. Defamation laws sensible
construed and applied can protect society from wasting its efforts. So
let's ensure they are sensibly construed and applied. Why should we
assume society (or judges and juries) are unable to discriminate between
legitimate use of free speech and mere public nuisance? With defamation
laws, the case still needs to be made that a particular "speech" was
defamatory before it stops being "free", but even then it has not been
*suppressed*, rather the anti-social damage caused gets proportionally
mitigated. Anybody that holds that the best defence for them personally
is to speak out rather than litigate has that option. It can hardly be
optimal to leave the speechless defenceless.
Brett
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