It is easy to be an advocate of free speech when it applies to the rights of those with whom one is in agreement. But the crucial test concerns controversial speech—statements which we may consider vicious and nasty and which may, in fact, even be vicious and nasty.
Now, there is perhaps nothing more repugnant or vicious than libel. We must, therefore, take particular care to defend the free speech rights of libelers, for if they can be protected, the rights of all others—who do not give as much offense—will certainly be more secure. But if the rights of free speech of libelers and slanderers are not protected, the rights of others will be less secure.
The reason civil libertarians have not been involved in the protection of the rights of libelers and slanderers is clear—libel is ruinous to reputations. Harsh tales about lost jobs, friends, etc., abound. Far from being concerned with the free speech rights of the libeler and slanderer, civil libertarians have been concerned with protecting those who have had their reputations destroyed, as though that in itself was unpardonable. But obviously, protecting a person’s reputation is not an absolute value. If it were, if that is, reputations were really sacrosanct, then we would have to prohibit most categories of denigration, even truthful ones. Unfavorable literary criticism, satire in movies, plays, music or book reviews could not be allowed. Anything which diminished any individual’s or any institution’s reputation would have to be forbidden.
“This is calumny, slander! You’ll hear from my attorney—I spent years building up the reputation of my restaurant!”
Of course, civil libertarians would deny that their objection to slander and libel commits them to the view described. They would admit that a person’s reputation cannot always be protected, that sometimes it must be sacrificed. But this, they might say, does not exonerate the libeler. For a person’s reputation is not something to be taken lightly. It may not be damaged without good reason.
But what is a person’s “reputation”? What is this thing which may not be “taken lightly”? Clearly, it is not a possession which may be said to belong to him in the way, for example, his clothes do. In fact, a person’s reputation does not “belong” to him at all. A person’s reputation is what other people think of him; it consists of the thoughts which other people have.
A man does not own his reputation any more than he owns the thoughts of others—because that is all his reputation consists of A man’s reputation cannot be stolen from him any more than can the thoughts of other people be stolen from him. Whether his reputation was “taken from him” by fair means or foul, by truth or falsehood, he did not own it in the first place and, hence, should have no recourse to the law for damages.
What then are we doing when we object to, or prohibit, libel? We are prohibiting someone from affecting or trying to affect the thoughts of other people. But what does the right of free speech mean if not that we are all free to try to affect the thoughts of those around us? So we must conclude that libel and slander are consistent with the rights of free speech.
Finally, paradoxical though it may be, reputations would probably be more secure without the laws which prohibit libelous speech! With the present laws prohibiting libelous falsehoods, there is a natural tendency to believe any publicized slur on someone’s character. “It would not be printed if it were not true,” reasons the gullible public. If libel and slander were allowed, however, the public would not be so easily deceived. Attacks would come so thick and fast that they would have to be substantiated before they could have any impact. Agencies similar to Consumers Union or the Better Business Bureau might be organized to meet the public’s demand for accurate scurrilous information.
The public would soon learn to digest and evaluate the statements of libelers and slanderers—if the latter were allowed free rein. No longer would a libeler or slanderer have the automatic power to ruin a person’s reputation.