Privately Administered Punishment And TOR Books

     No, this won’t be about for-profit prisons.

     In thinking about the boycott of TOR Books I mentioned in this post, it occurred to me that the subject of punishment dealt out by private parties deserves more thought than has previously been given to it. By the word punishment, I don’t mean forcible confinement (prison), a coercively extracted fine, execution, or any other exercise of coercive authority. There are other ways to penalize someone, or some institution, for behavior one finds unacceptable and wishes to curb. Boycotts, though they’ve received the most attention, are only one such means.

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     Broadly speaking, Smith punishes Jones by inflicting a penalty – an unpleasant consequence – on him. For that penalty to be licit under current law, the action Smith takes to inflict it must be entirely within his rights, and must not infringe on the rights of Jones or any third party. That would appear to restrict Smith to:

• Words (except for incitements to violence);
• Refraining from actions that would benefit Jones;
• Interactions with others that would disadvantage Jones.

     It is perfectly legal for Smith to criticize Jones, even to the extent of casting severe aspersions on Jones’s character, providing only that Smith does so truthfully. It is actionable under the laws of libel and slander should Smith falsely allege that Jones has committed a crime, has facilitated the commission of a crime, or has acted in some manner that would foreseeably bring public opprobrium upon him. The famous suit mounted by Quentin Reynolds against columnist Westbrook Pegler provides a fine illustration of how even falsehoods that allege legal behavior can be adjudged libelous if the behavior alleged is generally deemed reprehensible: for example, accusations that Jones has indulged in private vice, or has associated with persons later convicted of serious crimes. Smith has no defense against such a counterstroke but truth – and provable truth, at that.

     Within the limits placed upon him by previous contractual agreements, Smith may withhold his patronage or other beneficial actions from Jones. Boycotting Jones is one means; denying Jones a recommendation is another; negative reviews of Jones’s commercial activities are a third. Until the Patient Protection and Affordable Care Act, there was no legal basis under which Jones could compel Smith to do business with him. Fortunately the PPACA’s radius of application is relatively well defined. As for recommendations and reviews, those are as safe as any other form of free expression not actionable under the laws of libel and slander.

     Finally, in circumstances where Jones competes with others, Smith may favor those others to Jones’s disadvantage. This is usually a measure aimed at a corporation that sells into a competitive market, but it can occasionally be wielded against individuals as well. Conspicuously directing one’s patronage and praise at Jones’s competitors cannot help but force Jones, at minimum, to extra efforts to maintain his commercial position and viability.

     If Smith remains within his rights and does nothing to infringe upon Jones’s rights, all three approaches above are available to him. But some will be more effective than others...and equally important, some will inflict less damage upon unwillingly involved innocents than others.

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     A boycott such as the one Peter Grant has called for against TOR Books is an entirely legal measure. However – here I assume that it will take place and be effective – it will inflict collateral damage on uninvolved persons, specifically writers published by TOR who bear none of the blame for the slanders emitted by TOR editors Irene Gallo and Moshe Feder.

     If writer Davis had no part in the slanders, but is made by the boycott to suffer reduced book sales – possibly fatally reduced, such that Davis is compelled no longer to write for a living – an unintended harm has been done to him. That harm is not actionable under the law. Indeed, one might argue that it “should” move Davis to seek another publisher, which would add to TOR’s punishment. Nevertheless, it’s likely to cause at least temporary harm to Davis’s revenues, and could prejudice Davis against the boycott’s organizers in the future: both undesirable side effects. How, then, could this be avoided?

     A more narrowly focused boycott, targeting only those authors “in league” with Gallo and Feder, might not be feasible. For one thing, determining who ought to be targeted would be a subjective and highly contentious procedure. For another, it seems unlikely to have the desired effects: compelling Gallo and Feder to publicly confess their fault and recant, and compelling TOR’s management to discipline them appropriately and strengthen TOR’s policies against recurrences of their slanders.

     In sum, the boycott might be effective at squeezing confessions from Gallo and Feder and corrective action from TOR’s management, but innocent others are likely to suffer as well, and no modification of the boycott seems feasible. What, then, would be better?

     It’s a question I can’t answer definitively. However, merely publicizing the sins of Gallo, Feder, and any other involved TOR personnel is already doing some good. There might be more juice in that lemon than has previously been assumed. That it’s not as dramatic or materially punitive as a boycott is the strongest argument against it...and I don’t think it’s all that strong.

     I’ll return to this.