Saturday, December 6, 2008

The Right to Shout "Fire"?

I am currently reading a book by Murray Rothbard titled "For a New Liberty" and it has thus far been very enlightening. I just read the end of Chapter 2 and thought I would post here an interesting point on our right of freedom of speech:
Consider, for example, the classic example where liberals generally concede that a person’s “right of freedom of speech” must be curbed in the name of the “public interest”: Justice Holmes’ famous dictum that no one has the right to cry “fire” falsely in a crowded theater. Holmes and his followers have used this illustration again and again to prove the supposed necessity for all rights to be relative and tentative rather than precise and absolute.

But the problem here is not that rights cannot be pushed too far but that the whole case is discussed in terms of a vague and wooly “freedom of speech” rather than in terms of the rights of private property. Suppose we analyze the problem under the aspect of property rights. The fellow who brings on a riot by falsely shouting “fire” in a crowded theater is, necessarily, either the owner of the theater (or the owner’s agent) or a paying patron. If he is the owner, then he has committed fraud on his customers. He has taken their money in exchange for a promise to put on a movie or play, and now, instead, he disrupts the show by falsely shouting “fire” and breaking up the performance. He has thus welshed on his contractual obligation, and has thereby stolen the property—the money—of his patrons and has violated their property rights.

Suppose, on the other hand, that the shouter is a patron and not the owner. In that case, he is violating the property right of the owner—as well as of the other guests to their paid-for performance. As a guest, he has gained access to the property on certain terms, including an obligation not to violate the owner’s property or to disrupt the performance the owner is putting on. His malicious act, therefore, violates the property rights of the theater owner and of all the other patrons.

There is no need, therefore, for individual rights to be restricted in the case of the false shouter of “fire.” The rights of the individual are still absolute; but they are property rights. The fellow who maliciously cried “fire” in a crowded theater is indeed a criminal, but not because his so-called “right of free speech” must be pragmatically restricted on behalf of the “public good”; he is a criminal because he has clearly and obviously violated the property rights of another person.

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