Friday, 29 July 2011

The old 'fire in a theatre' fallacy foiled

The basic flaw in the liberal separation of "human rights" and "property rights" is that people are treated as ethereal abstractions. If a man has the right to self-ownership, to the control of his life, then in the real world he must also have the right to sustain his life by grappling with and transforming resources; he must be able to own the ground and the resources on which he stands and which he must use. In short, to sustain his "human right" — or his property rights in his own person — he must also have the property right in the material world, in the objects which he produces. Property rights are human rights, and are essential to the human rights which liberals attempt to maintain. The human right of a free press depends upon the human right of private property in newsprint.

In fact, there are no human rights that are separable from property rights. The human right of free speech is simply the property right to hire an assembly hall from the owners, or to own one oneself; the human right of a free press is the property right to buy materials and then print leaflets or books and to sell them to those who are willing to buy. There is no extra "right of free speech" or free press beyond the property rights we can enumerate in any given case. And furthermore, discovering and identifying the property rights involved will resolve any apparent conflicts of rights that may crop up.

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 [p. 44] 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.

Murray N. Rothbard; For A New Liberty: The Libertarian Manifesto, from chapter 2, 'Property and Exchange

4 comments:

Single acts of tyranny said...

The sheer range of Rothbard's work is so impressive, that and his obvious Joie de vivre that comes across in the videos of him I have seen.

SadButMadLad said...

Nicely put.

Angry Exile said...

Nice one. Very bookmarkable.

Anonymous said...

Suppose the owner gave a free concert and charged no admission? (Owner was the one who shouted fire)

No breach of contract then.