Sunday, October 10, 2010

Freedom of Speech, According to John Waters



In the segment that begins at 6:40, the always-interesting John Waters becomes possibly even more pro-free-speech than I am, by saying "you should be able to yell 'fire' in a crowded theater."

Come to think of it, I guess I agree with him there. As far as the fundamental issue of principle involved -- the issue of what our rights are -- I think it is both true and important to say that you should indeed be able to yell "fire" in a crowded theater.

After all, what offense am I committing, exactly, if I do falsely yell fire and start a panic? I would be committing exactly the same offense if I simply threw the fire alarm switch, with the same results but without saying a word. This simple fact shows that, the right is that is violated by shouting fire is not a right against being harmed by another person's speech. It has nothing to do with speech or freedom of speech.

But surely, under normal circumstances, the person who maliciously causes a panic is violating a right. What right is that? Consider another little thought experiment, proposed by Walter Block years ago in one of the most thought-provoking books ever written: Before you enter the theater, you can see, printed very clearly on the ticket, the following warning:
TONIGHT'S PERFORMANCE IS A PRESENTATION OF THE MASOCHIST'S CLUB. AT ANY MOMENT DURING THE SHOW, SOMETHING MAY HAPPEN THAT WILL CAUSE A PANIC. INJURIES AND EVEN DEATH MAY RESULT.
Meanwhile, I have devised a plan to do something -- far more clever and imaginative that yelling fire or throwing a switch -- that will send you and the others flying for the exit before you think Wait! Stop! We've been tricked! What fun!

Obviously, no one would do this, but I would say that this bizarre, crazy arrangement would not violate the rights of the bizarre, crazy adults who agree to enter into it.

This mere theoretical possibility shows that Oliver Wendell Holmes was wrong when he first made the "shouting fire" point in Schenck v. U. S. His point was that the government can prohibit speech with a certain content (in the Schenck case, criticism of military conscription) simply on the ground of the physical consequences of that content -- the "clear and present danger" it creates (in Schenck, danger to the government).

The right that is violated by falsely shouting fire is a contractual right, and the most important single feature of contractual rights is that they can be altered by mutual consent.

Under ordinary circumstances, I should be punished for falsely shouting fire, but the reason for this has nothing to do with the government's alleged right to censor certain messages on the ground that they are inherently "dangerous." One way to make this point is to say, as John does, "you should be able to yell 'fire' in a crowded theater."

4 comments:

Max said...

The mind-body dichotomy has plagued mankind for thousands of years, so it's not surprising to see it pop up here:

"I still can't think of a way to own it without poisoning myself."

The trouble with that moldy canvas "painting" is that it will also poison his mind - not just his body.

SINVILLE said...

It makes me sentimental not to be involved in the art scene when I watched the interview. He is the ultimate people watcher.

Lester Hunt said...

He's my favorite filthy pervert in the whole world. And I mean that as a compliment. Which is how he would take it-- even more so if I did NOT mean it that way.

SINVILLE said...

lol
I think of him as an artist and we are all broken people. I love his facade but I bet he has a secret shame-he probably reads the bible, or can recite Pride and Prejudice from memory.