A mini-controversy in Alabama is repeated, in my forms, around the country. In its current form, it goes like this. A public official from Party A, a member of the state school board, attacks another public official from Party B, a woman who happens to serve in the state legislature while serving as a high official in the state's two-year college system. The former public official questions the latter's ability to remain objective in formulating two-year-college policy as a legislator, given a two-year-college scandal to which she was attached. That's a foul, cries the public official from Party B, who claims that her name and reputation has been besmirched. She threatens legal action. But to what extent does anyone own his reputation? Rothbard would likely weigh in in this way, based on an excerpt from his Ethics of Liberty, paraphrased below:
The public official from Party A 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 the official from Party B 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 the former official's falsehoods damage that reputation, and that therefore his libels are invasions of the latter'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 the attacked public official's "reputation" is neither a physical entity nor is it something contained within or on his own person. Her "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, she can in no way legitimately own or control them. If she does so, she exercises a property right in the beliefs and minds of other people.None of this justifies (say) calumny, but it does explain why it is a tactic that is more likely among public officials who, because they operate outside the market, find it difficult to pass anything like a market test. To them, reputations are important because they are one of the few justifications that voters bring to the voting booth every two or four years. What a contrast from the private sector, where firms' reputations are only as good as the extent that they serve consumer demands today. In Alabama, if the two-year college system operated in the market, then the reputation of any individual official would be secondary to its performance serving consumer needs. I suggest we sell it off, if only so that people's concerns for reputation assume a proper place in the public square.