Nanoaggressions: Testing the Limits of Libertarian Legal Doctrine

A real-life lawsuit puts Rothbardianism on trial

• Robert P. Murphy
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Arthur Firstenberg sued his neighbor over a WiFi connection. Firstenberg asked for more than $1 million in damages due to the radiation emanating from his neighbor’s wireless router, dimmer switches, and other devices that we take for granted nowadays.
Free-market economist Steven Landsburg argues that Firstenberg’s case shows the weakness in the standard libertarian approach to property rights, but he confesses that he doesn’t have a fully satisfactory legal doctrine to suggest instead.
Landsburg is fighting a straw man. Libertarians have nothing to fear from the Firstenberg case.



First of all, Murray Rothbard himself showed the proper way to dismiss such lawsuits, as we’ll see shortly. But even if judges adopted Firstenberg’s “absurd” views — namely, that he had the right to be free from photons from outsiders on his own property — the members of a free market community could quickly bargain around this (apparent) absurdity and reach a sensible outcome.
Reductio ad straw man
Here is Landsburg’s analysis:

This case is about as good as it gets if you’re looking for a reductio ad absurdum to libertarian dogma about the absolute right to control one’s own body. If we accepted that dogma, Mr. Firstenberg would have an excellent case. More than one economist has tried to refute the libertarian position by concocting hypothetical lawsuits over “penetration by photons”. Thanks to Mr. Firstenberg, we no longer have to resort to the hypothetical.

Landsburg is no doubt alluding to David Friedman, who — with his training in physics — has come up with clever thought experiments to show the limits of conventional libertarian legal analysis. For example, in “Natural Rights + ?” Friedman writes,

One problem with the version of libertarianism exemplified by Rand, Rothbard, and their followers is its lack of any logical foundation sufficient to persuade the unbeliever of its strong claims…. And another is that, taken literally, it sometimes gives the wrong answer: I cannot turn on the lights in my house without prior permission from every landowner whose ability to see them demonstrates that my photons are trespassing on his property.

Both Landsburg and Friedman are recoiling against (what they perceive to be) a dogmatic libertarianism in the approach to property rights. The primary work in this tradition is The Ethics of Liberty, in which Rothbard starts from first principles and deduces at least the broad outline of what the law code would look like in a free society. Beyond other possible objections to this approach, Landsburg and Friedman think it self-evidently leads to “the wrong answer” on what we might deem a nanoaggression — namely, sending a physically harmless amount of photons onto another person’s property.
I have two lines of response to the Landsburg/Friedman critique. First, I am not certain that the “absolutist” approach to property rights does entail the absurdities that they claim. Rothbard dealt with exactly this problem in “Law, Property Rights, and Air Pollution.” Here is his solution:

Consider the case of radio waves, which is a crossing of other people’s boundaries that is invisible and insensible in every way to the property owner. We are all bombarded by radio waves that cross our properties without our knowledge or consent. Are they invasive and should they therefore be illegal, now that we have scientific devices to detect such waves? Are we then to outlaw all radio transmission? And if not, why not?

The reason why not is that these boundary crossings do not interfere with anyone’s exclusive possession, use or enjoyment of their property. They are invisible, cannot be detected by man’s senses, and do no harm. They are therefore not really invasions of property, for we must refine our concept of invasion to mean not just boundary crossing, but boundary crossings that in some way interfere with the owner’s use or enjoyment of this property. What counts is whether the senses of the property owner are interfered with.

But suppose it is later discovered that radio waves are harmful, that they cause cancer or some other illness? Then they would be interfering with the use of the property in one’s person and should be illegal and enjoined, provided of course that this proof of harm and the causal connection between the specific invaders and specific victims are established beyond a reasonable doubt. (emphasis added)

I hasten to add that Rothbard’s analysis was not ad hoc, a desperate attempt to rescue his system from the corner into which he had painted himself. No, before bringing up radio waves, Rothbard had developed the principles of strict liability, strict causality, the burden of proof, procedural rules, and the crucial distinction between trespass and a nuisance. Moreover, Rothbard quoted from legal scholars throughout his discussion; this was not mere armchair pontificating.
Living with absolutism
Let’s move on to my second line of defense. Suppose that Rothbard misunderstood the implications of his own approach, and that Landsburg/Friedman are right. Specifically, suppose that judges who adopt a strict property rights framework would have to agree that people have the absolute right to be free from photons emitted from others. When an odd fellow like Arthur Firstenberg sues his neighbor, the judge can’t simply dismiss the case as being silly.
Then what? Landsburg and Friedman seem to think they’ve proven their point, but let’s push it. What happens in such a world? Does everyone commit suicide to avoid going to prison?
No, that’s not what would happen. Firstenberg would (by stipulation) get the judge to issue an injunction against his neighbor; she would have to stop emitting photons onto Firstenberg’s property. One problem right away is this: it is physically impossible for her to comply with the injunction, and even if the sheriff comes and puts her in jail, shucks, she is still (however weakly) “invading” Firstenberg’s property — for example, by exerting a slight gravitational force on his couch — because her body has mass. Even if the authorities give her the electric chair, her dead body will invade poor Firstenberg’s property. (Plus, the electrocution itself would send even more electromagnetic radiation his way; the guy can’t catch a break.)
There’s another twist. If her lawyer is clever, Firstenberg’s neighbor will file a countersuit, pointing out that he is invading her property with all of his photons. I don’t know what the legal precedent is, but I could imagine an “absolute property rights” judge ruling that you can’t use the power of law to stop someone from committing an invasion that you yourself are constantly reciprocating.
The real solution to these silly brainteasers is that people would come to contractual agreements to avoid such messes. In the modern world, few people ever stumble upon truly virgin territory that they must homestead. On the contrary, just about everyone rents an apartment or buys land from a previous owner. The builders of a new housing development, or the owners of a new apartment high rise, could have clauses in their agreements explaining the rules that the new buyers or tenants must endorse. Right now, in the real world, people buying a new house may have to agree to the rules of a homeowners association, which sets limits, for example, on how loud they can play music at 2:00 a.m., or whether people in the development are allowed to put political campaign signs on their front lawns. To impose such rules isn’t to limit property rights; it merely clarifies exactly which rights the new buyers obtain with their purchase.
Why we need legal theory
Human interactions will always be messy and unpredictable, which is why we will always need judges to issue opinions on particular conflicts. However, it is still worthwhile for legal theorists to write treatises and essays advocating particular philosophies that judges may wish to adopt when making their decisions.
Contrary to the claims of Landsburg and Friedman, modern physics doesn’t provide obstacles to the application of strict property rights. Rothbard dealt with the problem of harmless nuisance in his famous legal essay, and the market process itself would contract around any remaining bottlenecks.
To suppose that WiFi connections could cripple a free society is a bit like a socialist worrying that free labor markets might lead to starvation: What if nobody wants to be a farmer?