Defining the Boundaries of Free Speech: Threats, Libel, and Blackmail in Society

It is difficult to overestimate the importance of free speech. It is imperative for society and even more important on campus. After all, the latter is the place where ideas and the search for the truth are held to be particularly precious. Without untrammeled free speech, it is difficult to see how this mission can even begin to be accomplished.

Is there any sort of speech that ought to be banned anywhere at all, whether at any of our institutions of higher learning or in civil society as a whole? Yes, there is one. It is the only exception to this general rule. In mentioning it, being an absolutist on free speech is not the correct position. The exception? Threats of physical violence. “If you don’t shut up, I’ll punch you in the nose.” “If you don’t give me your money and your automobile,” says the carjacker, “I’ll shoot you.” Unless these sorts of statements are part of a movie or a play or mentioned in the present context as part of a philosophical discussion, they are criminal acts.

Jack Benny was once “threatened” on his program with the statement: “Your money or your life.” Urged on by the “criminal” of the piece for an answer, Benny replied, “I’m thinking, I’m thinking.” Apart from considerations of this sort, the university should be a bastion of free speech. And so should be our general society.

But what about libel and slander? I now falsely claim that Jones is cheating on his wife. As a result, Jones loses his marriage, his job, his children, and his friends. I just ruined his reputation. Presumably, what the general public thinks of Jones is more valuable to him than his house and his car. If I stole those items from him, surely I would be a criminal. But by using my speech to make slanderous statements of him, I besmirched his reputation, and did him even more severe harm. Should I not be incarcerated, and should my “free speech” be prohibited by law? No.

He is the rightful owner of his home and automobile but not, paradoxically, of his reputation. For that consists of the thoughts of other people, not of his own thoughts about himself, and he cannot be the owner of the views of the general public. Another paradox: reputations would be even safer than they now are without laws prohibiting such statements. Right now, people are too likely to reason that when there is smoke, there is likely to be fire. Jones is likely to be guilty of one thing or another. But in a legal environment where libel was legal, allegations of this sort would lose much of their power to harm reputations. Allegations would come so thick and so fast and from so many quarters that people would tend to demand proof or evidence of them. Mere claims would no longer have the power they now have. Then, too, the idea that “public figures” should have fewer rights than others in this context is difficult in the extreme to reconcile with the view that we all have the same rights.

What about blackmail? “If you don’t give me $1000, Jones, I’m gonna spill the beans on you; I’ll tell everyone you take a bath with a rubber duckie.” That is a threat coupled with a demand for money. In most jurisdictions, that is strictly illegal. But should it be? No. For the threat is to do something entirely legal; namely, engage in a bit of gossip.

This should sharply be distinguished from extortion, which also constitutes a threat coupled with a demand for money—or sexual services or some other valuable consideration. For example, “Give me $1000, or I will shoot your children.” That is a horse of an entirely different color and indeed should be banned by law.

As I write this, there are a number of lawsuits emanating on campus on grounds of defamation. Should all of them be dismissed? No. There is one more exception in this analysis: if the defendant is a member of the ruling class, defined as that group of people who are guilty of violating libertarian law from whence this analysis springs, he is fair game to prevail against in such a lawsuit.