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Fire in a Crowded Theater · Wednesday February 11, 2009 by Crosbie Fitch

The example of shouting “Fire!” in a crowded theatre is often used to indicate that free speech should have limits. However, it really needs a little more examination.

We first need to look a little more closely at the difference between freedom of speech and liberty. Freedom is simply a lack of constraint, whereas liberty is freedom subject to a government that protects everyone’s rights equally by prosecuting violations thereof.

So, in a free society the individual is without constraint such that they remain free to violate others’ rights (though obviously not without deterrent or remedial consequence). In a non-free society individuals may be constrained in movement or speech such that their proposed/attempted actions are vetted or censored and may be physically prevented if not approved (such societies also typically make the state privy to the individual’s otherwise private domain).

Back to the example:

  • Free speech = The state does not attempt to prevent you from shouting “Fire!” in a crowded theatre, whether true or false.
  • Liberty = If you shout “Fire!” in a crowded theatre, neglectfully or with malicious intent, you may be prosecuted for endangering others’ lives, or simply for impairing the audience’s apprehension of the truth of a dangerous fire1.

Free speech means you may not be gagged, nor may your speech be censored, even with the objective of protecting others’ rights.

Liberty means that whilst you have the freedom to do or say anything, you may still be consequently prosecuted to remedy any rights you may have violated in the process.

What rights can one violate through speech?

  • The right to life, e.g. endangering another’s safety by maliciously inducing an unnecessary panic.
  • The right to privacy, e.g. revealing another’s secrets obtained via burglary.
  • The right to truth, e.g. misrepresenting another’s actions with intent to deceive.
  • The right to liberty, e.g. drowning out the sound of another’s voice without good reason.

So, freedom of speech means that you can say or publish anything anywhere (without censorship). However the equal protection of everyone’s rights means that there may be legal repercussions for doing so, including the likelihood that you may be required to cease and, if possible, remedy or reverse such speech or publication to avoid further prosecution. Continued violation may of course eventually require some physical constraint for a limited, rehabilitationary period.

Note that the infringement of copyright should be discounted as completely unworthy of prosecution, let alone a justification for censorship. Such privileges are not to be found in a society that believes in equal rights.

___________________

1 If you were aware of a fire, but shouted “Fire!” in a sarcastic way to not only avoid being believed, but also to pre-emptively reduce the credibility of any subsequent discoverers of the fire, then you would still be culpable for endangerment despite being literally truthful.



 

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