In Defence of the Bright Line – Aggression and Harm in the Digital Age


In Defence of the Bright Line – Aggression and Harm in the Digital Age

By Duncan Whitmore

In a recent discussion concerning the regulation of so-called “Big Tech”, Jeff Deist has raised the question of whether the proliferation of digital technology requires us to reconsider the traditional, libertarian conception of unlawfulness:

The larger question for libertarians is whether their existing conceptions of property rights, harms, torts, and free speech still work in a thoroughly digital era. Principles may not change, but facts and circumstances certainly do. Rothbard’s strict paradigm for what ought to constitute actionable force, especially as discussed in part II of The Ethics of Liberty, requires some kind of physical invasion of person or property. In doing so, Rothbard necessarily distinguishes between aggression (legally actionable) and the broader idea of “harm.” The former gives rise to tort liability in Rothbardian/libertarian law; the latter is part of the vicissitudes of life and must be endured. Theorists like Professor Walter Block and Stephan Kinsella have expanded on this “physical invasion” rule, applying it to everything from blackmail to defamation to (so-called) intellectual property. Aggression against physical persons or property creates a legally actionable claim, mere harm does not.

But Rothbard’s bright-line rule seems unsatisfying in our digital age. If anything, the complexity of modern information technology and the pace of innovation make the case against bright-line tests. For one thing, the sheer scale of instantaneous information ought to inform our view of aggression vs. harm. A single (false) tweet stating “famous person X is a pedophile” could reach hundreds of millions of people in a day, ruining X’s life forever. This is a bit worse than a punch to X’s nose in a bar fight, to put it mildly.

To avoid taking these remarks out of context, it should be noted that the main purpose of Deist’s article is to reject the option of a “sclerotic federal bureaucracy” resolving problems created by digital technology, in favour of evolutionary regulation arising from the adjudication of real cases. As such, one suspects that Deist is thinking out loud so as to raise possible issues rather than constructing a carefully considered argument regarding the scope of actionable harm. Nevertheless, he does reach an unqualified conclusion:

Libertarians and conservatives should broaden their conceptions of tort and contract remedies, and support the evolution of what constitutes harm in a digital era.

Given such certainty, a detailed examination of the matters that Deist raises is warranted.

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It’s Time to Stop Despairing


It’s Time to Stop Despairing

By Duncan Whitmore

It is difficult not to feel despondent when considering the enormous loss of liberty that has been inflicted by government lockdown policies in response to COVID-19. This despair has been compounded for many on the right by the final failure of Donald Trump’s attempt to challenge November’s presidential election result, together with the sudden, panicked attempt to remove him from office just days before his term expires, as well as the purging of him and prominent cheerleaders from social media. In this vein, the following quotations – all from prominent libertarians or conservative-libertarians – are not unrepresentative:

“2021 is going to be worse than 2020. Sorry”

“You ain’t seen nothing yet: the worst is yet to come”

“The lockdown is permanent, get used to it. It is all about political control. NOBODY HEALTHY IS DYING.”

It is true that any opponents of lockdown policies need to have a realistic grasp of why these draconian policies have been resorted to and how the situation is likely to pan out. Indeed, enough is now known about COVID-19 for us to be well past the point of lending the state the benefit of the doubt in its decision to continue with those policies. Thus, explanations other than the protection of health must be sought.

Nevertheless, the amount of time spent despairing is beginning to come at the expense of time that could be spent working out how to fight back. Happily, Sean Gabb has helped to buck the trend by offering some reasons as to why the past year has not been all that bad. While Gabb acknowledges that his personal circumstances have contributed much to his relatively sanguine view, it is, nevertheless, a refreshing counterbalance to the torrent of doomerism that seems to be erupting from the right. Continue reading