Friday, December 18, 2015

Walter Block on Former Subway Pitchmen Jared Fogle, Child Pornography and Libertarianism

The following email exchange took place between a correspondent and Dr. Walter Block:

Subj: Would Jared Fogle be a free man under anarcho-capitalism?

Prof. Block,

You rank among my primary intellectual influences, and I greatly respect your insight.

It is marginal cases such as what I will describe in the coming paragraphs, however, that amount to a stress test of theories vis a vis jurisprudence that would reduce to market anarchism, tort law, and/or a polycentric legal order.

Would Jared Fogle, having (1) crossed state lines to purchase the services of underaged prostitutes, and (2) having possessed pornographic material depicting underage minors, have committed any crime under anarcho-capitalism as you envisage it?

Yes or no? If so, what would be the theoretical coordinates for prosecuting him? It would seem, perhaps in a naive sense, that according to certain interpretations of AnCap he committed no crime directly violating the NAP.

Any direct response is appreciated



Dear xxxx:

Thanks for your kind words.

I don't think that crossing state lines is relevant to libertarianism, but to purchase the services of underaged prostitutes is statutory rape and should be punished by law. Ditto for pornographic material featuring or depicting children. If it is created by purchasing the services of children, it again constitutes statutory rape and should be punished by law. On the other hand, suppose "depicting" does not involve any actual children; here, the child porn is limited to stories, or sketches or cartoons. Then, I do not think it would be a crime under libertarian law. The argument against allowing this sort of child porn is that it would "lead" those who view it to the (statutory) rape of children. This may well be true. I am not expert in that field; I cannot make any determination if this is true or not, and/or to what degree. However, "leading" to bad, illegal things should not be per se criminal. For example, some movies, or books, or sports events or cartoons (think Charlie Hebdo) "lead" to riots. Is that the fault of these "leaders"? Not in my view. I don't think that this sort of child porn should be illegal, even though I regard it as despicable, sick, disgusting. Even the thought of it makes my skin crawl.

I might blog this. If I do, I'll keep you anonymous.

Best regards,



  1. "Ditto for pornographic material featuring or depicting children."

    IMO this is a more difficult issue. If the possessor paid for the material, then yes, I agree he should be guilty of a crime in the libertarian state because he is enabling the act by giving his financial support.

    But what if one receives pics depicting child porn by email unsolicited? Or downloaded the material from a public server? On what libertarian legal basis has the person committed a crime just for possession assuming the possessor didn't pay for it nor was involved in its production?

    I still think there are grounds for possession-only of child porn (depicting real children) still being a crime but the issue becomes more complicated. The libertarian should rightfully ask, "How is the child harmed?"

    Think of possessing pics of an real robbery from a security cam. By possessing the these pics, has one committed the crime? No, and we don't believe that possessing pics of a real robbery should be a crime. Even if the possessor of the robbery pics receives pleasure (albeit not sexual) from having them. Maybe the possessor finds them amusing, just interesting, or to role play doing the robbery himself for kicks.

    The point being that, whatever the motive, simply possessing the material is not committing or enabling the crime itself.

    So, does the act of possessing child porn itself do harm to the child? Would we say it will damage the child's reputation as an adult one day? WB holds that under libertarian law, we do not possess property in reputation. And I agree.

    But I do believe under libertarian law we should enjoy the right of privacy (which I believe WB doesn't). That under a legal right of privacy do I believe possessing child porn should be unlawful in the libertarian state.

    But this position also gets nuanced since the violation of one's privacy only becomes harmful to the person if the violator acts on the knowledge gained from the violation. Or restated, if a person possesses information that violates another's privacy and keeps it a secret, no harm no foul.

    Thus my position is that possessing child porn (again, only depicting real children) and keeping it in secret under libertarian law should be treated as a misdemeanor while distributing it or in some way acting on it (such as blackmail) treated as the greater crime.

  2. I don't often disagree with Walter, but here he has over-applied his interpretation of property rights. Something he normally scrupulously avoids as a thin libertarian.

    All non-consensual acts are categorically property rights violations regardless of age, of course. However, libertarianism can make no objection to mutually consensual acts. Including consensual nude pictures or consensual sex. If some of those people are “too young to consent” in the eyes of certain other people, that determination is made only via previously agreed-upon rules of behavior limiting transactions with people below a certain age on that property. This age could legitimately vary across property owners with different personal cultural/religious beliefs, just as today the age of legal consent varies by country.

    Since there is no libertarian-mandated, philosophically-derived, age of consent there can be no libertarian definition of child pornography or statutory rape per se since the definitions of these are in the eye of the beholder. Such laws are philosophically secondary, deriving legitimacy only by the sake of prior agreements to them. Mr. Defending the Undefendable should know this!

    1. Uh, the "logical conclusion" of your theory is the possibility of "welcome to Marquis de Sade Island." If you are not "ok" with that, it's also a very good argument for minarchist libertarianism versus anarcho-capitalist libertarianism.

    2. The philosophical basis of libertarianism unequivocally proscribes I have no right to interfere with the private property rights of others. My feelings don't change that. My personal values don't change that. A property right is a property right. Otherwise others may cite their own feelings or own personal values to override my property rights – i.e. where we are today.

      I also understand that same dynamics of total freedom that admit the possibility of a Marquis de Sade Island will thwart the practicality of a Marquis de Sade island. Free market competition and total voluntaryism in society disincentivize all undesirable excesses precisely to they extent they are seen as undesirable by increasing numbers of people. Undesirability is the normal and healthy stimulus to people to pay the price necessary to address undesirable things.

      Resources essential for life accrue to those not just productive in their own right but vastly more so to those able to trade with larger networks to better specialize labor. If 99.9999% of the outside world finds de Sade practices so odious as to warrant economic ostracism, they are free to stop trading with them. This would leave island residents economic outcasts, reduced to a stone age subsistence lifestyle, probably dying at age 30 from lack of basic health care and overwork in the fields. Accordingly, the incentives for the de Sades to abandon their severely unpopular practices would be enormous.

      Plus, who exactly could ever become “a victim” on Marquis de Sade Island? In an ancap world, anyone buying property on the island could set the rules for his own property as he saw fit just as he could with property located anywhere else. Anyone considering renting from the de Sades or crossing onto their property as a guest would have to agree to their rules and mutually agreeable dispute resolution and enforcement agencies prior to entering it. Accordingly, who would ever set foot on their property who didn’t either genuinely desire or was at least willing to tolerate the de Sade lifestyle? How could unjust harm arise here?

      By contrast, trying to sabotage freedom with force by giving a few men the title of “government,” elevating them above concern for rights, and handing them a monopoly on violence including sanction to forcibly extract wealth from the productive to support it (minarchism) is what will lead to the creation, funding, and persistence of actual, involuntary Marquis de Sade Islands (think Guantanamo and its ilk).

      Argument from fear is the classic statist tactic to light up the emotional brain to bypass reason: “You just _have_ to have a government ruling you. Otherwise there could be torture islands! You don't want torture islands, do you? Didn't think so. Now vote Trump 2016 - he'll keep you safe!”

  3. Soooo... you're ok with Marquis de Sade Island then. Got it. Thanks.