Richard A. Epstein: Not a libertarian
The solid part of the naming hypothesis gives each person the exclusive right to name himself or herself, or for parents to name (jointly–another potential can of worms) their children. But it hardly follows that an exclusive right must necessarily be an unlimited one. After all, my exclusive use of my own land doesn’t allow me to pollute my neighbors with impunity. Quite simply, there are some names at least that have to be regarded as off limits.
Yes, you have unlimited, exclusive use of YOUR land. Your neighbors land is not yours so polluting it is a property right infringement. You can pollute your land all you want. Just because in practice the polluting of your property will likely leech onto your neighbors doesn’t change the unlimited right to your property.
The issue came to a boil in a recent episode reported in the New York Times, in which Heath Campbell vented his outrage that his local ShopRite supermarket did not bend to his will to decorate his son’s birthday cake with his first two given names, Adolf Hitler. Popular sentiment turned out to run feverishly hot against Mr. Campbell, and for good reason.
Analytically, names have two distinct functions. The first is to designate one individual to the exclusion of all others, for which a nine-digit social security number will do just fine. But many names carry an expressive content, as by naming a daughter Chastity or a son Jesus. In most cases, the right response is for others to use the name even if they do not like the message it conveys.
Yet there are fuzzy limits. A name enjoys a peculiar monopoly status. It is the only moniker that anyone else can use to designate the named person. It follows therefore that names do impose what might be termed a “soft” externality on other individuals that becomes really hard to bear when the name in question forces people to be respectful to someone whom they rightly hate. No moral relativism allowed. Who wants to be polite to an Adolf Hitler?
This topic isn’t about moral relativism. Morality and state are seperate topics. You can consider another’s actions immoral but so long as that person does not infringe on the rights of another there is no legitimate use of force against them and therefore no legitimate role for the state.
Yet the objection to the unlimited use of these names cuts deeper. Today, no adult could voluntary take the name Adolf Hitler either. This basic point is explicitly recognized under modern trademark law, which explicitly forbids any person from registering a trademark that consists of “immoral or scandalous matter.”
The established case law won’t let anyone register a new men’s cologne under the name “Adolf Hitler.” Forcing other individuals to use odious names is too high a price to pay when literally millions of other names are open to the user.
His mentioning this in a neutral if not positive light shows again he is no libertarian. Trademark law, just as all government enforced intelectual property monopoly, is unlibertarian.
These vexing controversies should remind us that even limited governments have to worry about externalities that go beyond the use of force and fraud. By all means keep a strong presumption against invoking state power to veto personal or trade names. But this libertarian says, don’t make it an absolute rule.
Perhaps Mr. Epstein should go back and look up what libertarianism is. Not Libertarian. If it’s not absolute its not a right. If it can have “reasonable restrictions” it’s not a right.
