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."