March 21, 2016 8:55AM

Rights in the Balance

The right to swing my fist ends where the other man's nose begins.

The saying, it turns out, has some of its pedigree in Prohibition, during which the right to serve drinks was said to interfere with the rights of the family. But misapplication to "group rights" aside, it's a phrase that captures our system of rights well. You are (or should be) free to do whatever you wish, so long as you don't injure others in their rights.

You can see society hammering out the dividing line between rights in a case that produced a jury verdict last Friday: Hulk Hogan vs. Gawker. The provocative website published a mid-2000 video of the former wrestler and TV personality having sex with a friend's wife. Hogan sued and won a verdict of $115 million, which Gawker will appeal.

The argument on Hulk's side is that public exposure of a person's intimate moments and bodily functions violates a right to privacy. The free speech argument is that a person has a right to broadcast and discuss anything he or she pleases.

These are both important rights. The privacy right is a little younger, having developed since about 1890. The free speech right pre-existed its 1791 acknowledgement in the Bill of Rights, so speech has a stronger heritage. But the dividing line will never be decided once and for all. Common practices and common mores will set and reset the line between these rights through accretion and erosion, the way a winding river divides a plain. That way of producing rules is very special: common law courts deciding in real cases what serves justice best.

The major alternative is to have legislatures episodically decide the rules that apply. When Congress and state legislatures change the rules, the change is often dramatic and avulsive. I contrasted the two systems in the recent Cato Policy Report.

Common law is inductive. Building on experience in case after real-world case, common-law courts accrete knowledge about the rule-set that best serves society. Because rule development occurs with reference to real life cases, it takes advantage of local knowledge about the precise disputes that occur. This allows better approximation of what the truly just rules will be for most cases.


Legislation and regulation more often produce rank re-ordering of rights and liabilities because legislation is deductive. At a single point in time, based on all the knowledge it has drawn together at that moment, a legislature establishes the rule-set that it believes to make the most sense. This is often what it perceives as pleasing the most---or the most important---constituencies. That imperative to please constituencies means that the information legislatures codify often comes from well-organized interests with substantial resources. Special- interest pleading is a hallmark of legislation and regulation.

There's some risk of that special-interest pleading in the anti-"revenge porn" statutes that several states have adopted, relevant to the Hogan/Gawker case. Time will tell whether they are well-crafted reflections of society's values or not. The Video Privacy Protection Act has all the flavor of special-interest legislation. Congress passed that bill quickly in 1988 after it learned that news outlets might investigate the potentially naughty VHS rentals of prominent public figures---including Supreme Court nominees and senators. In 2012, Netflix succeeded in convincing Congress to allow people to share rental information on social networking sites after obtaining customers' permission---a lobbying effort that would have been entirely unnecessary in a common law context.

There is no sound argument that common law is perfect. Excessive punitive damages awards and class-action shenanigans are just two areas where common law processes could be improved. But common law is arguably more fixable than legislation and regulation, in which the interests of lawmakers are a permanent source of distortion on justice.

Our common law inheritance from England is no archaic relic. It's even something for Hulkamaniacs to be aware of. Lovers of liberty and justice should remember and prefer the common law.