Barack Obama writes in The Audacity of Hope:
We all agree… that society has a right to constrain individual freedom when it threatens to do harm to others. The First Amendment doesn’t give you the right to yell “fire” in a crowded theater; your right to practice your religion does not encompass human sacrifice.
Well, alongside the Harm Principle, there is a more fundamental reason why shouting “fire” in a crowded theater would be wrong: it is because that theater is someone else’s private property. All our rights, including the right to free speech, are nothing but extensions of property rights. As Murray Rothbard writes in “‘Human Rights’ as Property Rights”:
[T]he concept of “rights” only makes sense as property rights. For not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard.
In the first place, there are two senses in which property rights are identical with human rights: one, that property can only accrue to humans, so that their rights to property are rights that belong to human beings; and two, that the person’s right to his own body, his personal liberty, is a property right in his own person as well as a “human right.” But more importantly for our discussion, human rights, when not put in terms of property rights, turn out to be vague and contradictory, causing liberals to weaken those rights on behalf of “public policy” or the “public good.” As I wrote in another work:
Take, for example, the “human right” of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate “right to free speech”; there is only a man’s property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.
[…] [C]ouching the analysis in terms of a “right to free speech” instead of property rights leads to confusion and the weakening of the very concept of rights. The most famous example is Justice Holmes’s contention that no one has the right to shout “Fire” falsely in a crowded theater, and therefore that the right to freedom of speech cannot be absolute, but must be weakened and tempered by considerations of “public policy.” And yet, if we analyze the problem in terms of property rights we will see that no weakening of the absoluteness of rights is necessary. [My emphasis.]
Read the full piece, it’s wonderful. I try to get the same point through when people tell me that if I support free speech I should open comments on this blog—such a suggestion conflates private property and the public domain. For more, read my post, “The Flying Spaghetti Monster v Private Property.”
(Rothbard link via email from Sumeet Kulkarni. And do read Obama’s book: Few politicians write as well as he does, and much of what he says is a refreshing change from the usual political rhetoric that flies around, even if I have some minor misgivings about his thoughts on economics.)
Update: In case it needs to be spelt out, the references to shouting “fire” in a theater by Obama and me are obviously in a hypothetical instance in which the theater is not actually on fire. Heh!
Update 2: In Libertarianism: A Primer, David Boaz quotes Rothbard on this subject and then elaborates:
When we understand free speech this way, we see what’s wrong with Justice Oliver Wendall Holmes’s famous statement that free speech rights cannot be absolute because there is no right to falsely shout ‘Fire!” in a crowded theater. Who would be shouting “Fire”? Possibly the owner, or one of his agents, in which case the owner has defrauded his customers: he sold them tickets to a play or a movie and then disrupted the show, not to mention endangered their lives. If not the owner, then one of his customers, who is violating the terms of his contract; his ticket entitles him to enjoy the show, not to disrupt it. The falsely-shouting-fire-in-a-crowded-theater argument is no reason to limit the right of free speech; it’s an illustration of the way that property rights solve problems and of the need to protect and enforce them.