Posted by
Andrews on Tuesday, November 03, 2009 2:26:23 PM
I have often written that rights are absolute, that there is no case for making exceptions, and that every right is valid, at any time, under any circumstance. (See "
My Vision of Government","
My Vision of Government Part II", "
A Right Is A Right", "
The Danger Inherent in Banning "Bad Ideas"", "
Negative and Positive Rights", "
Symmetry and Asymmetry in Government
") The only case I allow is for the incorrigible criminal who, through his actions, has shown his unwillingness or inability to share social intercourse with his fellow man, and so may be treated like the beast he resembles and either imprisoned for the duration of his miserable life or killed. Likewise, I allow that lesser felons may, as a condition of being admitted once more to the society of their peers, have rights temporarily restricted, but this is just an extension of the principle above. We had every right to kill or imprison them, so when we choose to show clemency and allow them back into society instead, w can impose restrictions upon them.
However, whenever I write about absolute rights, it is almost inevitable that someone will bring up Justice Holmes, and his aphorism about crying fire in a crowded theater. Now, I know this is quite a popular quote, and many take its literary merit as a sign of judicial merit, but to my mind it confuses two aspects of the law. One has every right to cry whatever he wants, but that does nto free him formt he consequences of his actions*. In the same way that I do not see laws agaisnt conspiracy as restricitons on free speech, I do not see crying fire as a restriction on speech. In fact, I even disagree with Holmes' premise. Were an actor to cry "Fire", he would not be charged, as he is not likely to cause a stampede, and thus the speech itself is not banned. It is only when consequences arise that one is liable for those consequences, and that liability is not in any sense a restriction upon the freedom of speech. Are laws against fraud a restraint of commerce? Are prohibitions of human sacrifice a restriction of religious freedom? Nor do I see this ebing a restriciton of free speech. One is free to say whatever he wants, but some statements carry consequences. Slander and libel do not restrain free pseech, and neither do the penalties for crying fire.
Which is why I was fascinated to
find this article, arguing that legal thinkers are much less impressed with Holmes than laymen, precisely because Holmes often used literary devices to overcome weak arguments. The forced sterilization case they cites as an example is much more dramatic than the crowded theater example, but it does help convince me I was right all along in not listening to Holmes' honeyed words. As usual, just because something sounds nice is no guarantee that it is true. Truth may be beautiful, but we have to recall not all beauty is truth.
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* I have a similar problem with laws attempting to prevent crimes. For instance, prohibition on drunk driving per se. The laws themselves recognize this and ban only negligent driving while drunk, but then cleverly declare that drunkeness creates a presumption of negligence. In my mind that is not proper. A law can only prohibit an action which violates the rights of another. Then again, such laws arise form the strange circumstances created when the government owns the roads. As I mentioned many places, when "public property" is involved, the law often takes strange turns and ends up going far beyond its intended purpose. Still, regardless of the involvement of public property, I have a problem with punishing people because of the presumption that their action is more likely to cause harm. Almost anyone could be jailed at some point if we allow an individual to be jailed anytime their decisions increases the risk others face. But that is a topic for another day. (Before I leave the topic let me say, I recognize that intoxication may increase the risk of accident, but there is a difference between a slight increase in risk and outright criminal negligence. In addition as we lower ever more the standard of intoxication we end up jailing people whose real risk is almost the same as a sober driver, and probably less than, say, most teenage boys. Which seems a bit much.)
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POSTSCRIPT
I found this link on
overlawyered.com, which is a great site for those fascinated with the law and modern legal excesses.