M.N. Rothbard, 1956, Submitted to National Review, but rejected:
I would like to take this opportunity, once and for all, to set the record straight on the famous old cliché: “after all, no man has a right falsely to shout fire in a crowded threatre.” This formula of that old cynic, Justice Holmes, has been used time and again as an excuse for all manner of tyranny. Just exactly why does no man have this right? Is this really a case where libertarian principle must give way to a diluting “prudence”? There are two possibilities: either the shouter is the owner of the theatre or he is not. If he is the owner, then he is clearly violating the evident contract which he made with the patrons: to put on a play which the patrons can watch – a contract which they executed in cash. By disturbing this performance, he is violating the contract. If the shouter is not the owner, then he is clearly trespassing on the owner’s property. He was permitted on that property on the ground that he would peacefully watch the play, a contract which he is obviously violating. The false shouter of “fire,” therefore, is punishable not because free speech should be restricted, but because he is violating the property right of others. And property right, in libertarian principle, is one of the basic natural rights of man.
["The Heresy of Prudence," Full Article on LRC]
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What is most astounding, in context, to me is the number of seemingly intelligent people who get the quote wrong, asserting that the issue is simply “yelling ‘FIRE’ in a crowded theater.”
Asking them what I’m supposed to do if there indeed is a fire, usually shuts them up.
Another aspect of “falsely yelling ‘FIRE’ in a crowded theater” is one of fraud. The individual doing so is lying, prompting others to act in good faith based on that lie. Such an individual is certainly liable for any and all damages such a deliberate lie causes.
Ah, but who enforces truth? If someone asks you for directions, what if you are wrong – can they sue you for damages? And if the shouted “fire” does not disrupt the play itself (during the return to the seats during intermission for example). If I pay to see the play, do I sign a 300 page contract that specifies what I can or cannot do in my seat or in the theatre (chew gum, smoke, use profanity, talk during the scenes, etc.)? Or has “prudence” simply gone from something we can attempt to define narrowly for serious incidents into whatever groups of people may or may not disagree on?
I don’t think common courtesy can be enforced in civil or criminal realms.
Speech which is fraudulent or is otherwise intended to cause loss (and political speech is different from incitements to vicious actions) is a tort.
Speech which causes physical harm ought to be criminal – I may not even harm the theatre owner if I falsely shout “fire”, but the other theatregoers might get trampled and harmed, and I have no contract with them – did I do something against them by panicing them? Criminally or civilly? If I say I will shoot you if you don’t give me your wallet, apparently that is bad, but if you lay your wallet down and I say that some natural or external condition will cause you immeidate harm if you don’t leave, I may then take your wallet when you rush away?
Since when did the first amendment guarantee freedom of speech on private property? Get it straight- the Bill of Rights only forbids the government from infringing those rights on government property, and was never intended to protect speech made on private property.
I think that’s what Rothbard was getting at, iceberg.
The theatre owner might have a property-rights case against a patron who violates his personal property by disturbing a performance with “FIRE!” No government appears necessary to enforce this protection of property rights, and yet the government insists that it and its laws against yelling “FIRE!” in a theatre are both indispensable.
Iceberg: “Since when did the first amendment guarantee freedom of speech on private property? Get it straight- the Bill of Rights only forbids the government from infringing those rights on government property, and was never intended to protect speech made on private property.”
Actually, the Bill of Rights does NOT forbid “the government” from violating any rights. This is language typically employed by Randians and others who have no appreciation for federalism. What the Bill of Rights does is make it clear that the federal government’s power are limited only to those expressly enumerated, and in particular, do not include the power to infringe certain individual rights. In other words, the Bill of Rights forbids the FEDERAL government from violating certain rights. It does not forbid “the government” in general, and certainly does not forbid the states, from, say, censoring speech or establishing a state religion, any more than the Bill of Rights “forbids” China or Israel from doing this. There were actually several established state religions (e.g., Congregationalism in Mass.) at the time the BoR was ratified (1791).
A fine technical point, Stephan, but when one is unhappy with the decisions of the state courts, one can appeal to federal courts, who usually base their decision, on, what else, the U.S. Constitution. While states are not expressly forbidden from exceeding federal limitations, in practice the federal government often ends up being the final arbiter on what states can do. Abortion, for example. Medical marijuana seems to be the latest battleground between state and federal power.
“A fine technical point, Stephan,”
This kind of comment is usually a precursor to a type of anti-intellectual reply like, “Well, you might be right in theory but in the real world….”
” but when one is unhappy with the decisions of the state courts, one can appeal to federal courts, who usually base their decision, on, what else, the U.S. Constitution. While states are not expressly forbidden from exceeding federal limitations, in practice the federal government often ends up being the final arbiter on what states can do. Abortion, for example. Medical marijuana seems to be the latest battleground between state and federal power.”
Sure, one “can” appeal to the fed courts now, precisely because the feds have arrogated to themselves the power to tell the states what to do. So what? Since when does might make right? And they do not base their decisions on the Constitution; if they did, they would not rule as they do. They distort and twist it for their own purposes.
“While states are not expressly forbidden from exceeding federal limitations, in practice the federal government often ends up being the final arbiter on what states can do.” What has this obvious factual observation to do with my statement? How does the fact that the feds have arrogated to themselves this power imply that it is Constitutional or libertarian that they have done so?
What’s worse, violating some alleged (albeit merely tacit)contractual obligation to refrain from disturbing the viewing of a theatrical performance, or needlessly and delinquently causing a riot in which innocent people are trampled to death? If the “libertarianism” that Mr Rothbard subscribes to holds that what makes shouting Fire (obviously “falsely”; how tedious of Curt Howland to find it “astounding” that people often omit the adverb) in a crowded theatre wrong is that it violates a promise to the owner to be quiet (which shouting Hurray would do as well) as opposed to the fact that it is likely to cause injury, then that just shows the utter implausibility of this libertarianism.
Philos:
You offer two options to compare which one is worse,
1. violating some …contractual obligation to refrain from disturbing the viewing of a theatrical performance, or
2. needlessly and delinquently causing a riot in which innocent people are trampled to death
But i offer you a third option to consider:
3. allowing in principle, the state to arbitrarily limit your freedom of speech based on what it percieves is best for us all.
If you were to concede the third option is the worst of all, which i hold it is, then it follows that protection against option 1 trumps protection against option 2.
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