Chapter 10. The Person Who Yells Fire in a Crowded Theatre
In a case against free speech, the fire screamer is Exhibit A.
Even those who argue in defense of civil liberties and the right of free speech
stipulate that these rights do not include the right to yell fire in a crowded theater.
This is the one case where all parties seem to agree
It is not necessary that the right to free speech is not as important as other rights, but to override the right of free speech for any reason is a dangerous precedent and never necessary.
Certainly it is not necessary in the case of the person who yells fire.
The rights of theater patrons can be protected without legally prohibiting free speech.
For example, theater owners could contract with their customers not to yell fire, unless
of course there is a fire in the theater.
The contract might take the form of an agreement in small print on the back of a theater ticket,
or a large message on wall posters placed throughout the theater, prohibiting any disturbance
of the entertainment or singling out the shouting of the word fire.
But, however the prohibition appeared, the contract would effectively put an end to the
supposed conflict between the right of free speech and other rights.
For the person who yelled fire would then simply be violating a contract and could be
dealt with accordingly.
The situation would be entirely analogous to that of someone under contract to sing
at a concert but who refuses to sing and instead lectures on economics.
What is involved in both cases is not the right of free speech but the obligation to
honor a contract.
Why look at the prohibition in this way?
There are several important reasons.
First, the market would be much more effective in removing threats to the public health and
and Safety such as the one posed by the fire screamer than an all-encompassing governmental
prohibition.
A market contract system would work more efficiently because theatre entrepreneurs would be in
competition with each other with regard to the efficiency with which they prevented outbursts
disruptive to the audience.
Thus, they would have a great incentive to diminish the number and severity of such outbursts.
The government, on the other hand, offers no incentive.
No one automatically loses money when the government fails to maintain order in a theater.
A second reason we can expect greater success from the market than from the government is
that the market is, by its very nature, more flexible.
The government can only make one all-embracing rule, with, at best, one or two exceptions.
The market does not have such restrictions. The flexibility and complexity of the market
are limited only by the inventiveness of the actors in it.
The government's system of protection against yelling fire, outright prohibition, violates
the rights of perhaps one of the most oppressed minorities, the sadists and the masochists.
What of the rights of the sadists who enjoy yelling fire in a crowded theater and then
watching the crowd tear itself to pieces in the resultant mad rush for the exits?
What of the masochists who relish the thought of having fire yelled at them while in the
confines of a crowded theater with the same mad but exhilarating crush at the door?
Under the government system of outright prohibition, these people are denied what may be their
their most fervent wish, their chance to go out in a blaze of glory.
In the flexible market system, however, where there is a demand for a service, a supply
will soon arise.
Where there is an unfulfilled demand for sadomasochists screaming fire and then watching the frantic
crushes, entrepreneurs will rise to the occasion and provide the requisite service.
Such musings will undoubtedly strike the straights on the sadomasochistic question as just so
much idle talk, but that is only to be expected.
No ruling class ever viewed the plight of their downtrodden with anything but contempt
and scorn.
Non-aggressing adult sadomasochists have just as much right to their mutually agreeable
practices as anyone else.
To dismiss the rights of sadomasochists as not being worthy of consideration provides
evidence of the fascistic habits of thought to which most straits have succumbed.
Sadomasochists should be free to indulge in their non-aggressive practices.
The public, after all, need not attend any theater which clearly advertises that unplanned
disruptions will be permitted.
Sado masochists, for their part, would still have to curb their enthusiasm when patronizing straight theaters.
Finally, unless the prohibition against yelling fire in a crowded theater stems from a private contract,
the right of free speech will be in conflict with what is held in very high esteem,
namely the rights of people not to have their show interrupted and themselves crushed at the exits.
Freedom of speech is at best a weak read. It is always in danger of being suppressed. Our hold on it is sometimes very tenuous indeed. Therefore, anything which tends to weaken it even further must be opposed.
There is hardly a scare tactic better designed to destroy freedom of speech than the creation of a false conflict between the right to speak freely and other rights held in vastly higher esteem.
Yet this is precisely what the usual interpretation of yelling fire accomplishes.
If exceptions to the right of free speech are granted, our tenuous hold on the right of free speech is weakened.
Second. There are no legitimate exceptions to the right of free speech. There are no
cases in which the right of free speech is in conflict with any other right we hold dear.
Therefore, the person who yells fire in a crowded theater can be considered a hero.
He forces a consideration of what is involved and what needs to be done to protect a precious
It's Right That Is Endangered.