Fraud or Freedom?

by Logan Albright
Mar. 20, 2014

Most libertarians recognize fraud as a form of theft, and therefore a form of coercion that violates the non-aggression principle and should be subject to legal reprisal. In general, I agree. But what constitutes fraud?

The case of Kevin Trudeau has got me thinking. The famous pitchman has been convicted of fraud and sentenced to ten years in federal prison for peddling diet books that authorities deemed to be dangerous and ineffective, making unsubstantiated claims that harmed his customers.

While Trudeau is undoubtedly a liar and a huckster, this seems to me to me to be a dangerous grey area in the nature of fraud. If selling weight loss books that don't work is fraud, then an entire industry could presumably be thrown in jail at any moment. Is every book that preaches Chinese medicine, acupuncture, homeopathy, and special crash diets a fraud? The entire self-help industry is built on these kinds of promises. The Secret sold millions of copies by claiming you can get what you want out of life just by wishing for it. Books of ghost sightings and recipes for magic spells can be found in the new age section of any book store.

I would argue that it is the responsibility of the individual consumer to decide which of these books are fact and which are fiction. If you want to follow the advice of a book on a dubious topic, you should assume responsibility for your actions, not blame the author. Would a fraud charge stick against the author of crypotzoologic monster hunting guide (of which there are many) if someone injured themselves following his advice? For the sake of enthusiastic monster hunters everywhere, I would like to hope not.

Then there are books about climate change. Chris Horner's "The Politically Incorrect Guide to Global Warming" was a great and informative read, but what would happen if he were brought to court over his claims? If the scientific and political establishment had their way, he would be convicted of fraud. We have already seen threats of lawsuits against Mark Steyn for his "climate change denial" and demands for the silencing of Charles Krauthammer for daring to question climate change orthodoxy.

Lying is not per se illegal, and neither is the expression of a sincerely held opinion. Where is the line between opinion and fraud? Who decides what is a lie and what is a mistake, and isn't the difference mainly down to the consensus of experts? This seems to me a very dangerous precedent.

If I am selling cyanide capsules marketed as Flintstones Chewable Vitamins, that is demonstrably fraud. If I sell a book that expresses a belief that Flintstones Chewable Vitamins may have harmful effects in the long run, that should should not be. Fraud is traditionally defined as the misrepresentation of what a product is or does. In the case of books, they only thing they do is provide information. That information may or may not be true, but there is a distinct difference between selling a product whose use will result in injury, and a book whose "use" merely constitutes reading it. We have to make sure to protect unpopular opinions that may go against the establishment dogma.

Should Kevin Trudeau be in prison? I don't know, but I am nervous about a society where you can be imprisoned for writing and selling a book.
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Logan Albright is a writer and economist in Washington, DC.