I thought more about the puzzling issue of defamation after I wrote the previous post, trying to make better sense of it. There is another explanation that might explain defamation as properly conceived as tort, despite the fact that people initiate and own their own thoughts and ideas.

The basis for patents is the homesteading of a particular discovery by the inventor. Discoveries pertaining to some particular thing are finite and limited, so they have value and can be claimed by the first to make the discovery. The same of true of mining claims and real estate: both are limited, valuable, and under proper law available exclusively to the first to discover and develope. Both depend for their utility on location, and the first homesteader to appropriate a particular location, in an appropriate way, owns it. The same reasoning can be applied to inventions that we try to protect with patents.

I got off on that tangent defending intellectual property, because it may be true that actors own their reputations, in the sense that they create the conditions for ideas others hold about them. The ideas Smith has about Jones belong to Smith, yet Jones created the conditions of Smith's conclusions about Jones. As the initiator of the conditions on which Smith has formed his thoughts about Jones' character, Jones could be seen as owning an aspect of Smith's thoughts, by contributing to their causation.

It seems wrong that Jones could act well, to which Smith would tend to respond favorably, but then Johnson maliciously lies about Jones with harmful consequences. 

This is a subject that needs careful thinking and working through. 

Yes that's an anology, provided one first proves that an actor owns his reputation. I don't know how to demonstrate the idea of "property" in the ideas of other people, but someone else might be able to figure it out. 

On the other hand, if it were true that there is no right to a reputation unpolluted by malicious lying, then people would rapidly adjust. They'd learn to think for themselves, weighing accusations about another critically; so that harsh lies would tend to be more often discounted or dismissed. 

We're talking about unproven accusations  by gossips and ideological hotheads, mostly.  Can't sue them all and most defamaotry speech goes unpunished. 

But I don't want to gloss over this, so if the second line of reasoning could be developed, good.

Fraud is not about words; it is the act of takiing value from someone--wealth in some form--in exchange for a promise to deliver a value in the future, but then breaking the promise without returning what was received in payment. 

Mark, I don't think you read what I wrote carefully enough.  We don't disagree.  I said that fraud was about words, but then explained that it was only because the words were used to create a false promise and that the right violated was the theft of property.  But the words are means by which it starts.  They are the means by which the victim is deprived of their choice.  Fraud is done via words, the way an armed robbery is done via a gun, the way defamation is done by words.  Because words are used, does NOT mean the words should be outlawed.  Just as the use of a gun in a robbery doesn't mean guns should be outlawed.  

Sorry if I misinterpreted your remark about fraud starting with words.

Here is why I think defamation constitutes a violation of the rights of the defamed individual. To begin, one's reputation consists of ideas held in mind by other people about one's character. Their ideas about one's reputation, or about anything else, belong to them.

The ideas they hold about Jones' moral history, his character, are partly inspired by Jones' actions. Obviously, their assessment of Jones' moral fitness is also based on other factors unrelated to his actions, depending on the person judging and his ideas about what does or does not constitutes proof, what is moral versus immoral, and etc.

Over time, the choices of Jones define his moral character, because he controls his choices. Jones' character is caused by him, defines him, and therefore belongs to him alone. (This point simplifies by skipping over trauma or other factors that sometimes reduce the capability of choice.)

If Smith lies about Jones' behavior, then people who believe the lie form conclusions about Jones' character that Jones did not cause. What did the liar take from Jones? He did not damage his character, because only Jones can do that. Smith changed the impressions other people form about Jones' character, by lying about the conditions of their evaluation of Jones. 

Jones owns the conditions of public perception of his character, because he is the author of his own history. That moral history, his character, is important and (potentially) valuable in pursuit of life, because people estimate character to judge whether or not they ought to enter into a relationship with another person. Everyone derives value from peaceful social exchanges, without which flourishing would be impossible.

Therefore, when Smith defames Jones, he vandalizes the conditions people refer to in judging Jones--conditions he created and that therefore belong to him. How others evaluate those conditions is up to them, but the conditions of Jones' history are his exclusive domain--an extension of his life.

Vandalism of course is a violation of Jones' rights. 

Mark, I don't disagree. 

I think that the elements of defamation make sense (despite the fact that judges don't seem to do a good job applying them). 

There must be damage (and a public statement trashing one's reputation should constitute damage on its own and not require some evidence of a decline in income or some other loss).  As always, truth is an absolute defense against defamation.  It the character trashing was a matter of speaking the truth, it wouldn't be seen as damaging no matter what change it wrought in the financial (or other circumstances) of the person trashed.

By "malicious intent" I understand the simple concept of an action done with the knowledge that it would cause damage, as opposed to by accident.  (That is what makes it vandalism to purposely make marks on someones car as oppossed to accidentily scraping it with your car).  If someone says something that does damage to another's reputation but they didn't mean to, then they may still be liable for some corrective action to make things whole, but it would be like a car accident, not purposely running into another's car.

So, to be defamation:

1.) the statement must be provably false or without any reasonable support as true.  (Taking away someone's good character is a kind of theft, while exposing someone's bad character is like a gift to the listeners).  When true, the only person whose choice has been diminished is the choice of the person with bad character to continue to act under a false reputation.

2.) And it must be damaging (either per se - like character trashing, or through proven secondary loses - like money, or a job, etc.) If a crook is called a crook, and thus exposed, he can't claim that he was damaged because it diminished his opportunities to steal!  You can't have taken from you, what you never owned.
 
3.) And a reasonable person would know that such a statement would be damaging and do it anyway, knowing it wasn't supported (which would be enough to constitute "malicious intent" as I see it.)  In criminal law, there sometimes are differences between crimes done with intent, and the same action without intent.

There is also the difference between criminal actions and actions that can only be dealt with in civil court.  If I run into your car on purpose, I should be charged with some kind of criminal act for damaging your property on purpose.  If I hit your car by accident, but I have a history of driving in a careless fashion, it still might be a crime, but a lessor one.  If I am usually a careful driver, but hit your car by accident, then there is still damage, but it would be made right in civil court not criminal court.  Civil and criminal law should all arise from individual rights.  An individual right is an action one owns (ie. has a moral right to take without permission).  Laws are intended to define those actions that must not be taken because they would interfere with another person being able to take an action they have a moral right to take without permission. 

I have a moral right to drive my car down the street, but not to drive it into the property of another.  The law defines the different kinds of driving acts that are prohibited.  A civil court will look at any instance where there might be damage to a person's property caused by another.

Unfortunately, no level of perfection in the definition of rights or their codification in the law will overcome the negative effects of a culture that is in the process of becoming stupid and/or dishonest.

As I see it, there is an important difference between one's reputation, and one's moral history of behavior. That distinction is important, because without it, there is no basis to argue that defamation constitutes a violation of the rights of the defamed. 

If one ignores that distinction, the argument against defamation centers around harm done to the reputation of the victim, which inflicts costs on the victim. But the definition of reputation is ideas other people hold in their minds about the moral fitness of a particular person. Whatever the soundness or unsoundness of those ideas, that encompass prior ideas about epistemology and ethics, as well as the facts of someone's history, those judgement do not belong to the person being defamed. Without the distinction, the defamed would have no basis to claim her rights had been violated, because people are entitled to reach their own conclusions about her reputation.

However, if one accepts the distinction, then the basis for defamation as a rights violation comes into focus. The ideas people accept as relevant to judging another's moral fitness include, but are not restricted to, the facts of another's history. If people accept the defamers' account of facts, then the rights of the defamed have been violated. The reason is the defamed person owns her history, in the sense that her history, if it is acceptable or even good, is useful and valuable in social exchange. If she has an acceptable or even good history of behavior, other people sensibly assume she is okay to have certain kinds of dealings with. 

So although she has not written and published her memoirs or sold rights to a film maker, products that would entitle her to copyright protection, she does own her own life. As such, she owns her past actions, insofar as they serve as the present conditions others use to judge her. She does not own the conclusions others form about her, but she does have a right to her own moral history, because she created it and it may have value. 

If someone lies about her past behavior, and if people believe the lie, that defamation damages her history, somewhat as a vandal damages physical property. To lie about her history is to expropriate and falsify the moral standing that, for better or worse, she earned.

A reputation is the thoughts of other people about someone. One's moral history is facts created by one that others use as conditions of their evaluation of that one. Because people rely on their moral history in dealing with other people, falsifying or vandalizing it reduces the victim's freedom to act and interact.

If someone can point out problems with my reasoning, I'd appreciate that. I probably won't take time to respond to arguments I think are lousy, though. I'm getting pretty cranky. Thanks.  

Mark, I understand the distinction you are making - and that a reputation is a relationship kind of entity.  It can only exist (in an active fashion) inside the mind of a person and it is also about some person or persons (specifically their history and their personal nature).

I can think about my character, my moral history, etc.  And I can think about my reputation with others, and others can have their ideas about my character, etc., and one could abstract or summarize those ideas of others to say what my reputation IS.  It is kind of wierd that I can talk about my thoughts about my reputation, another specific person's idea of my reputation, and my reputation in the world as a whole.

You said, "...the defamed person owns her history, in the sense that it is her history..."  I'm not disputing the underlying concept, but want to clarify an aspect of "ownership" - to own something is to have property rights in it.  Property rights are always about actions that can be taken relative to the object or entity in question without anyone's permission.  For example: I own my car (purchased it outright) and therefore I have the right to sell it.  If I had leased the car, I would still "own" some things about the car.  I would have the right to drive that car (an action relative to that piece of property) as long as I stayed good on my lease terms.

For the points you are making, you'd need to discuss the actions that can be taken by the owner of the property in question.  Only then can you say what would constitute a violation of that right.

You said, "...she does own her own life."  Yes, but whenever Rand discussed the right to our life, she was careful to put it in the context of the actions that constitute life - breathing, being able to exercise one's choice, pursuing ones values, etc.  I'm not seeing how one "owns" their past actions.  My past actions are "Mine" but that is in the sense of who did them, not in the sense of who holds moral or legal property rights to them.  That is something else and would need more said to be established.

Despite my nit-picking, I think you are on the right track.  There must be property rights involved.  And defamation is akin to vandalism - damaging someone's property. 

The hard thing to deal with is that "reputation" is not just in the head of one other person, but possibly in heads of a great many people and held very differently from one person to another.  In this sense it has a kind statistical existence.  For example, what is the reputation of Ayn Rand?  She isn't alive so her defamation property rights don't exist, but she does have a reputation and one that varies from person to person.  That makes reputation a thing that is hard to nail down metaphysically and epistemologically.

Defamatinon is an act.  It is committed by a specific person and there is a living person claiming to have been damaged by the defamation.  Character assassination is just one kind of defamation.  You are on the right track to say that "reputation" in the eyes of third parties is somehow where the damage is located.  But perhaps rather than point to an "ownership in past acts" it would be more a loss of liberty.  There is a kind of universal liberty we can speak of (Everyone has the right to not be imprisoned if they have not violated any one's rights).  But we each have a degree of earned liberty - In a sense I have earned the right the good opinions of thirdparties to some minor degree as the product of my past efforts.  For example, say Steve Jobs were still alive and said he was going to release a new kind of gadget.  He, because of his past successes, has earned a certain level of market interest in what he says.  But if someone made up a lie that his claim was false because he had started taking mind-altering drugs they would be taking away a market share that he would otherwise have earned.  Kind of like when someone stops a person from travelling a specific public route to get to work, they might be causing a damage that won't happen till long after the blocking (e.g., missing an appointment by being late that turns into a lost revenue.)

I think this is what you were saying when you said that people rely on their moral history in dealing with other people being reduced by defamation and reducing their freedom.  We put 'money' into our reputation bank with today's moral acts, and if someone wipes out some part of that account, there will be less there to draw on in the future.  We have been vandalized.

I understood Mark's supposed "distinction" as well, and never had a problem with that.  For the record, my post #32 was not attacking Mark in any way, and I understand this topic quite well.

Well said, Mark.

Here is a fun example of something that isn't defamation, but is close.

In the dark of night, a person sneaks over a fence into the parking area for cars that will be auctioned the next day.   He uses a crayon to mark on the side of the car he plans on bidding for, "Has Transmission Problems."

Because of that false statment he wins the car for a much lower bid than it would otherwise have received.  He violated property laws starting with trespass, then with the vandalism of the car, and then he defrauds the auction house owner of the revenues he would otherwise have earned.  And, like defamation, he lied about the 'character' of the car, changing its reputation in the minds of others, and that limited the freedom of those involved with the sale when it happened.