KOL485 | The Brownstone Show, with Jeffrey Tucker: Defamation and Intellectual Property
12/4/2026
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Kinsella on Liberty Podcast: Episode 485.
My recent appearance on The Brownstone Show, Ep. 17 (twitter video).
https://youtu.be/n_HE_nXf3aM?si=3eYpF5jW5HadXwJD&t=1942
From Brownstone's shownotes:
Jeffrey Tucker sits down with Stephan Kinsella...libertarian attorney, author of the seminal 2001 essay "Against Intellectual Property", and the massive treatise "Legal Foundations of a Free Society"...for a provocative discussion on why defamation (libel and slander) law should be rejected as just another form of intellectual property right.
Kinsella argues that reputation is not ownable property. What others think of you cannot be controlled or turned into a legal entitlement. Defamation law, like patents, copyrights, and trademarks, rests on the flawed idea that the state should protect intangible "rights" through force. He explains how these laws create chilling effects, perverse incentives, and actually amplify the harm of false speech rather than reduce it.
Topics covered include:
Why intellectual property (including trademarks and defamation) is incompatible with true property rights and free markets
The historical and common-law roots of defamation and how it morphed into reputation-as-property
How the existence of defamation lawsuits gives lies more credibility ("If it weren't true, he would have sued")
Free speech, threats, and the limits of state power
Private alternatives: reputation markets, certification agencies, dueling culture, caveat emptor for information, and why a truly free society would be more (not less) regulated by voluntary rules
Connections to patents destroying innovation (especially in pharma and software), NDAs, cancel culture, and the illusion of safety created by regulatory bodies like the FDA
Why "buyer beware" should apply to both products and information in a free society
This is a challenging, nuanced conversation that questions deeply held assumptions about law, harm, honor, and reputation. Even if you initially disagree, Kinsella’s razor-sharp property-rights analysis will make you rethink how we handle speech, lies, and "harm" in the digital age.
Tweet:
👉The Brownstone Show: @jeffreytucker interviews @NSKinsella: Why defamation law is just another form of intellectual property—and why abolishing it would make lies less powerful, not more. Eye-opening take on reputation, free speech, and private alternatives. 🔏 pic.twitter.com/dY1JWagDoA
— Brownstone Institute (@brownstoneinst) April 9, 2026
Related:
“Defamation as a Type of Intellectual Property,” in A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann & Stephan Kinsella (Houston, Texas: Papinian Press, 2024)
"Against Intellectual Property"
"Legal Foundations of a Free Society"
“The Problem with Intellectual Property,” in Handbook of the Philosophical Foundations of Business Ethics, 2nd ed., Christoph Lütge & Marianne Thejls Ziegler, eds. (Springer, forthcoming 2026; Robert McGee, section ed.)
On dueling: Libertarian Answer Man: Dueling, Stalking, Restraining Orders
Review of Patrick Burke, No Harm: Ethical Principles for a Free Market (1994)
Transcript below.
As Tucker mentioned to me: I seriously doubt that any podcast ever has made this crucial point, namely that market forces can be more ferocious regulators than federal agencies that have been set up for the purpose of providing legal cover for unsafe products. So this discussion breaks important new ground in understanding what the free market really is. I hope people make it all the way through—it's a completely different take than I've ever seen.
My comment: This is a good illustration of the power of cumulative ideas. I feel like Patrick Swayze in the movie Road House: tagline: "Bustin heads and breakin' hearts."
Funny interchange:
Kinsella: You could imagine if there was not the litigious, legal industry of defamation lawsuits and it was not a legal thing. You could imagine private solutions would emerge. In fact, the private solution used to be, “I challenge you to a duel.” You besmirch my honor. But of course, the state has outlawed dueling.
Tucker: I keep imagining that there should be a resurrection of at least a rigorously constructed defense of dueling in history. I think it has gotten a bad name, actually.
Kinsella: Do you think you and I would still be around if dueling was permitted?
Jeffrey Tucker: Yeah. One of us would at least have a ...
Kinsella: Kinsella and Tucker dead at 41.
Tucker: I am not that good a shot, and I am not sure you are either.
Stephan Kinsella: Right. I do not mean us either, you know?
Transcript
[Speaker names may not always be correctly attributed; blame Grok and ChatGPT, Gemini seemed to help]
Introduction to Stephan Kinsella and His Views on Intellectual Property
[0:10]
Jeffrey Tucker: This is Jeffrey Tucker, President, Brownstone Institute. I am very pleased today to have with me Stephan Kinsella, an attorney who is the author of a 2001 article called “Against Intellectual Property” and more recently, a large treatise called “The Legal Foundations of a Free Society.” He is one of the most important thinkers of our time, and I think he has had a huge influence on me.
At some point in the mid-2010s, because his article came out, I thought it was probably not correct. I thought it was wrong; at least I thought it was a distraction. Essentially, what the article says is that intellectual property is an illegitimate concept, that ideas cannot be commodified and turned into property, and that the attempt to do so is destructive of market forces, information flows, and society in particular. This pertains to copyrights, patents, and yes, even trademarks.
The thesis is shocking, and probably as you listen to this, you are thinking that cannot be true. Then nobody would have the incentive to create, and so on. These are the usual comebacks. But I promise you, if you think about it long enough, as I did for years, you eventually come to be persuaded. Because of that, I shifted in my own career to only publishing within the commons. There was, at some point in this period, an innovation of the copyright status that made available to publishers what is called Creative Commons, with a number of different licenses and terms of use.
So, in my own work, I embraced the Creative Commons license with only one provision of attribution. That has been, I think, a real key to the success of many of my own personal projects. Also, as a publisher, Brownstone only publishes in the commons. As far as I know, we are the only ones. There may be other nonprofits that do it, but I am not familiar with them. It is a completely different model.
One thing about this model is that it prevents conflicts between the publishers and authors. If an author does not like what Brownstone is doing, does not think we are marketing it enough, or does not like us anymore, they are free to take it back and go to another publisher. We are not holding anybody against their will, which prevents conflicts.
Normal publishers not only retain copyright but also tie that to distribution rights, which last for the lifetime of the author plus 70 years. This means that an author’s grandchildren are the ones who will be responsible for getting the work back in print at some point. Most authors have no idea what they are getting into when they enter into these contracts. It is actually quite sad.
The patent issue is another matter entirely. It has practically destroyed innovation in the software world and, unfortunately, innovation in many aspects of life has led to vast corporate cronyism, particularly in the pharmaceutical industry. There is an enormous amount of unspeakable corruption in pharmaceuticals as a result of patents.
Today, we are not going to want to rehearse all these arguments on this particular topic, although it is important to understand them as background. What we are going to do today with Stephan is discuss a much more difficult and related topic, which has to do with the issue of defamation. This is a major problem in the world of the Internet, where anybody can just go online and say anything about anyone.
The courts have always said that it has had, at best, very high standards for defamation in the case of public figures, and it hardly ever works to sue somebody for defamation. We have got a kind of defamation free-for-all going on. This is made much worse by the NDAs that are ubiquitous in the corporate world today, so that everybody is under some kind of non-disparagement agreement. This has provided a kind of a license for defamation on the Internet.
Stephan takes an unusual position. I think I am just going to use this interview to explore this a little bit and any other related areas. Welcome to the Brownstone Show. Stephan, thanks for coming.
Stephan Kinsella: Thanks very much, Jeff. Glad to be here.
Intuitions Behind Defamation Law and Connection to Property Rights
[5:44]
Jeffrey Tucker: Let us start with the basics. I mean, let me just say at the outset, it connects with a certain intuition, I think, in British law and just normal course of life that there is something wrong with defamation. You have to think about it this way: Would you rather have somebody steal a potted plant off your porch or have some major account smear you all over the Internet as an evil, terrible person in ways that you cannot contradict?
There is a sense in which it seems defamation can be potentially more injurious to the individual than, say, petty theft. So you recognize that, right? That is the source, I think, of defamation law.
Stephan Kinsella: Absolutely. I think that the intuition is that, a kind of rough approximation of the law is that the law is there to stop you from being harmed. It is to stop harm. That is it. Generally, acts of aggression harm you, which is why the law prohibits aggression and theft and
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