An excerpt from the Tucker Carlson channel.

There has been an increased amount of chatter regarding "defamation" laws brought to light due to recent events that include ideological differences between the US and the EU. This chatter has been observed, for example, as part of recent US criticism raised by vice-president JD-Vance towards the German constitution that has a abridged speech and even brought up in media such as during the discussion between Mr. Tucker Carlson and Mr. Piers Morgan where new "hate-speech" law suggestions are brought forth.

The general argument for "defamation laws" that would abridge free-speech are based upon, what we at Wizardry and Steamworks think to be, a misinterpretation of article 17 of the United Nations International Covenant on Civil and Political Rights (ICCPR) with regards to privacy that state that an individual's honor or reputation cannot be (unlawfully, in the sense, without a proceeding or court order) damaged. Here is the article text:

• No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
• Everyone has the right to the protection of the law against such interference or attacks.

To us, this article seems to solely relate to an individual in terms of privacy, or, you could call it maybe the "anti-paparazzi law" because it hints directly to the privacy of an individual, their family and their living space rather than being some abstract catch-all protection for any criticism brought to them verbally or even in the context of their work (in the latter case, why mention "home" and not "workplace" as well?). Similarly, "blackmail" laws exist, such that other cases that would involve the misuse of materials obtained by interfering with an individual's privacy, are just governed by other laws. It is important to observe that the context of article 17 of the ICCPR is phrased in relation to interference with an individual's privacy and article 17 seems to refer to data obtained illicitly, perhaps photographs, nudes or other sensitive material, explicitly obtained by interference with an individual's privacy as the text would imply, that could be used to damage the "honor" or "reputation" of an individual.

In spite of the error of interpretation that would render the argument for "defamation" invalid, in order to make sure that "free speech" can coexist with "defamation" laws, the following provisions have to be met:

• ensuring that all statements are true and unfalsifiable,
• recognizing that the publication is of public interest and a valid concern,
• ensuring that the defamation can only be recognized by court as tort

From the former it follows that the distinction between "free speech" and "defamation" can be reduced to whether the statements that are made are true or false. With that said, any sort of slander or libel brought against someone, and even pedantically, with malice as the sole purpose, that is not demonstrably true falls within the realm of "defamation"; however, in case all statements made about a person are true, then that is an exercise of "free speech" and not "defamation".

This is the current situation of how "defamation" is defined for most constitutions that implement defamation laws in order to be able to allow "defamation" to coexist with "free speech".

With the groundwork laid down, here is some commentary on the issue. One can observe that clearly the main distinguishing functor hinges on whether statements are true or false. Assuming that statements made about a person are false, such that that would constitute "defamation" as per the definition, then given that the statements are false, the statements could not be used in a court of law because false statements would never be demonstrably true. In that sense, a statement that is outright false is only hearsay and can never function as an element that would be part of a case because it would have to be true. Even in layman terms, why would a fabrication about your own self, upset you more than a terse critique of yourself that actually touches on some truthful points? Of course, aside from that, there is the question, under the current definition of "defamation" whether a given person could become part of a work of fiction - for example, would someone write a book that would have some celebrity as the protagonist, that would pedantically be defamation because any action that celebrity would take within the book would be false. And yet, why would anyone be damaged to be part of a story that is false?

In large, it seems like "defamation laws" do not make much sense, in particular given their current limitations where the offence is taken only iff. the statements are false. If the purpose would have been to make people uncriticizable, why even bother to meditate upon the truthfulness of statements instead of just outright ban any talk about people in general? To paraphrase the US senate on the necessity of crytpocurrency laws, saying that they would be "a solution to a problem that does not exist", defamation laws seem a very ineffective solution to a very trivial problem. Clearly, the "defamation laws" are not there to ensure that people always tell the truth about other people, right? Because in their current standing, that seems all that "defamation laws" seem to enforce, unless, say, people do not talk about people at all and just talk about objects and animals. Similarly, as discussed, if making sure that people always tell the truth about other people is the purpose of the law, then that would obliterate a whole lot of literature and human imagination which would perhaps not be the intended effect.

In short, it seems like "defamation" is just a whimsical and mis-interpreted derivative stemming from actual (physical?) privacy concerns that someone used as leverage wanting to twist the "right to privacy" into some tool for some people of certain autocratic fiber to be beyond any criticism; however, in doing so, also ironically failing due to conflicts with "free speech" laws and then just leaving the matters as it is such that anyone taking "defamation laws" seriously would functionally be just making sure that statements are true (which is trivial with regards to justice and courts because anything but the truth would not be admissible in court in the first place).

One final ingredient that is added in the distinction between "free speech" and "defamation" that was mentioned briefly is interestingly the notion of "malice", in the sense that "defamation" is also only valid when the intents are just purely malicious in nation, contrary to, say, be critical of the person being portrayed. However, it seems that "malice" and "critique" can at times go hand in hand, and literary forms such as hyperbola and allegories are all tools that can be interpreted as "malicious" even though their main purpose is emphasis or comparison. "Malice", as we will see, satisfies the requirement of proportionality that determines whether a law can be constitutional or not and "malice" is the extra ingredient that highlights motive or purpose and intent, which is the main talking point in a court of law (otherwise, without any purpose, the perpetrator is just considered absent of their mental faculties provided demonstrable damages).

With that said, Tucker Carlson makes a good argument stemming out of pure "common sense", but interestingly those arguments hold even analytically, if you think more about the issue of "defamation" vs. "free speech"; not only is Mr. Carlson right, but "defamation" seems useless or half-baked (?) with the intent of the law itself not really being clear. Due to the ambiguity, it immediately begs the question whether it was just meant to silence people, to bottom-line it.

The rest of the discussion touches on the topic of "inciting violence", which seems very similar to "murder by proxy" where an individual though their charisma would manage to convince others to commit a crime, such that the individual that "incited the violence" is held accountable along with the individuals actually committing the crime.

Even though legalistically, the framework seems to not have been established for "murder by proxy", and certain scholars claim that such laws cannot be enacted because they would lead to mass incarcerations and that such laws are not even valid from a retributive stance, the problem seems already partially solved by simply using the notions of "accessory" and "accomplice" where the person that incites to violence could be counted among the "accessory" or "accomplice" depending on the severity of their own contribution. Proportionally, "charismatic" procedures can represent varied degrees of tort such that the contribution of the person "inciting to violence" could be held accountable on a scale.

The main counter-argument is that legal processes have as a baseline requirement that the individuals being involved are "free agents", "self-aware" or "self-conscious" and in control of their own actions such that ultimately their actions are their own, regardless what "influence" might take place. However, such an argument does not hold too much water given that it is for granted that actions can be the result of some coercive process.

Nevertheless, just with relation to "free speech", "inciting to violence" is too vague of a term that could match too many patterns and become some "magic ace" that could then be used as some fall-through avenue of prosecution by blanket-applying "inciting to violence" to everything and anything. Laws that do not have a clear, minimal and demonstrable purpose fail the Oakes test, which stipulates that limitations on rights can only be imposed, provided that:

• There must be a pressing and substantial objective
• The means must be proportional
  • The means must be rationally connected to the objective
  • There must be minimal impairment of rights
  • There must be proportionality between the infringement and objective

This stems from the court case "R v Oakes" in Canada that set the distinction between narcotics "consumption" or "use" versus "trafficking" and it was deemed that prosecuting "consumption" with the same rigor as "trafficking" is unfair because it violates the principle of proportionality and also illicitly supersedes the presumption of guilt given that no proof was provided that the individual possessing narcotics also trafficked them.

With regards to "inciting to violence" the Oakes test, namely, both of the steps are violated in case "inciting to violence" would be a valid constitutional law, namely:

• it is not immediately true that the "violence" will take place such that the person inciting to violence would already be presumed guilty,
• the "objective" is not clear, (ie: just random irrational violence or is there a purpose?) such that the concept of proportionality cannot possibly be respected

As with the case of "free speech" vs. "defamation", the same sort of issue is seen here, where depending on the actual structure of proposed "nu-law", there already exist well-established laws that have been in effect since forever that could indeed cover something like "inciting to violence" without having to make up new regulation. For example, is the person inciting to violence by coercing someone? In which case that would be the set of laws governing accomplice and accessories. Is the person inciting violence also blackmailing people to make them commit crimes? If so, then that would be handled by laws governing blackmail. Etc. However, a law that would be phrased as "inciting to violence" falls apart analytically, just by noticing that it does not fit along with the other existing laws, even before thinking of "inciting to violence" in terms of governance or politics.

Unfortunately the problem lies within two different views upon judicial systems especially in a historical context. The United Kingdom and Europe in general are regions where statism precedes judicial processes, with a hallmark document that connects the UK and the US as a common ground being the Magna Carta, a procedural document that drew lines in medieval England between citizens and governance. However, anything the Magna Carta is mostly feudal for Europe with a long-standing tradition of preferring "the survival of the state", or, governance, before the "survival of the people". This makes sense even in terms of geography where Europe is a collection of distinct states bunched together tightly such that the survival of the state seems to precede the survival of just some citizens in importance, compared to the United States that was already forged by multiple European powers with only internal struggle rather than the requirement of outbound defenses.

The United States was founded revolving around the needs of individuals, with "individuals" being the atomic unit, whereas European states made the state (regardless whether an empire or not) the centerpiece of governance. "By consent of the King […]", is the allowance to perform this-or-that act but with regards to whether the act to be performed would harm the state or not yet not necessarily another individual. In that sense, regardless of the monarchical allure, the expression is that of the state itself and the Magna Carta can be seen as a document exploring whether the freedom of individuals within (even) a monarchy damage the state or not. Compared to the United States that did not have any inherent central ruling, the only "authorities" were just people and their peers, other people such that any law formed had to be relative to each other with the state being seen more as a practical utility. It is to no great irony that Mr. Tucker Carlon and Mr. Piers Morgan completely see eye-to-eye on the topic of farmers when you think that the Magna Carta is one of the essential documents that is shared between the the US and the UK as well as the two forms of government in terms of state vs. the individual!

Neither one or the other interpretations are too wrong, even though, mainstream trends push people to pursue freedom in democratic states, such that, for most long standing people in Europe, the United States variant seems more palatable rather than the older European trend of favoring the state over the people. All the notions discussed in this law study, such as "defamation", "inciting violence" or "spreading hate-speech" all pertain to the same dichotomy where Mr. Morgan as an European tends to favor the state and how those things affect the state whereas Mr. Tucker Carlson always digresses when the split shows up and favors the freedom of the individual. Funny in some ways, the interview could not have turned out any other way, given solid ideological convictions between Europe and the US.

What is also interesting is that one has to keep in mind that Mr. Carlson is a convinced republican but in spite of that when putting Mr. Carlson next to an European, Mr. Carlson seems to be the one more in favor of personal independence and liberties from the state. This is not really a polarity issue following a left-or-right dichotomy, and perhaps not even purely one in terms of authoritarianism but rather a judgement made in terms of statism. That is, an US democrat and an US republican, when faced with an European, it is the European that would seem more of a statist than both democrats and republicans combined.