NOTE: I am finally reproducing my "Stupid Quote of the Day" series that ran in my previous blog, the now defunct "Random Notes", from December 28, 2011 to January 27, 2012. Please note that there are no entries for January 4 and January 12 through January 14 due to illness.
Once again, I seem to be getting a bit of a late start, so I will stick with the easy quotes. Thankfully, there are plenty available to me, so I should have no trouble picking one for tonight.
So, for tonight's quote, let me choose one I have addressed before, from a writer I have also criticized before, one of the more famous (and incorrect) statements from the horribly over-praised Justice Oliver Wendell Holmes:
You don't have the right to shout 'Fire' in a crowded theater.I discussed this once before, in my post "I Knew I Was On To Something", and have mentioned it in passing several other times as well ("The Danger Inherent in Banning "Bad Ideas"", "The Problem of Pornography"), and the reason should be obvious. It is one of my main contentions that rights are absolute, that they are not divisible, are inalienable, cannot be fragmented, qualified, subdivided or modified. In short, a right is a right. However, Holmes' quote seems to fly in the face of this simple contention, eroding the primacy of individual rights and creating the illusion that rights, properly understood, can be in conflict with one another, another theory I deny. ("Symmetry and Asymmetry in Government", "Negative and Positive Rights")
The problem here, as I see it, is a common one, the confusion of potential consequences with preexisting legal prohibitions. We can see this confusion in many cases where supposed the law, or legal realism, requires that rights be treated as limited. It is a popular position among legal "realists", those who like to present themselves as moderate legal pragmatists (and we all know how I feel about pragmatism -- "The Shortcomings of Pragmatism"), but their realism is actually nothing but a symptom of a deeper confusion, and their "pragmatism" amounts to creating a "centrist" solution for a problem which exists only in the minds of those who confuse consequences and prohibitions. If individuals properly understood rights and related concepts, there would be no conflict, nothing to pragmatically resolve. Worse still, because they allow this confusion to persist, and base upon this confusion a theory granting the state the ability to limit rights, they effectively undermine the entire concept of individual rights, while pretending to be its hard-nosed defenders.
Perhaps it would be easier to understand if I were to provide an example, to show the difference between consequences and prohibitions, and also to show how consequences do not entail violating rights, while prohibitions do. But, rather than use the right to free speech, as that is the subject of our quote, let us instead look at religion.
Those who are less than sympathetic to Christianity, and religion in general, are fond of pointing out Biblical laws that conflict with both our modern laws and our modern values in general. Mostly, they find these by mining Leviticus and finding instructions that were obviously products of a much more brutal era. Some of these complaints are foolish, such as taking laws about how slaves are to be treated and assuming that the Bible insists we MUST own slaves. Others are valid questions, such as instructions to stone disobedient children, though, except for arguments with very strict Biblical literalists, I have never seen what they hope to gain with such arguments. Still, these attempts to mine Leviticus for "embarrassing" passages does provide a good starting point for my discussion.
Let us assume I am a Christian or Jew who does take Leviticus to heart, reading each and every rule as something to be taken literally. So far, I am perfectly within my rights, and there is nothing that is even slightly problematic. However, let us say that, because of these beliefs, I do decide that I must stone to death one of my children. Should I do so, and should I then be arrested, that would in no way be a violation of my religious rights. I would simply be arrested for committing a criminal act. That the crime was a consequence of my religious beliefs is irrelevant. Why I violated the rights of another is unimportant, it is the violation which matters*.
On the other side of the equation, if, following my homicide, some politician sought to ban Christianity, or Judeo-Christian faiths, or even my particular sect, because they embrace beliefs which lead to crimes, then that would clearly be an act violating my religious freedom, as it would limit my right to believe, rather than punishing me for a violation of rights. As I wrote before, laws can only punish violations of rights, or plans to do so, the law cannot attempt to criminalize acts "likely" to violate rights, or else the state will end up violating rights as well.
Hopefully, the difference here is clear enough. I can hold whatever beliefs I want, and any law which prevents me from doing so is improper. However, if I act upon those beliefs, I can be held responsible for the consequences, even criminally responsible. Just because I have the right to hold beliefs does not immunize me against the consequences of my actions.
And that is where I find Holmes' quote incorrect. I actually DO have every right to cry "Fire". What I do not have is immunity from the consequences. And likewise,t eh state does not have the right to prohibit me from shouting "fire", but is perfectly free to prosecute me for the consequences should I choose to do so. It is similar to laws of slander and libel. I have every right to write or say anything I wish, but should my act cause another harm, and can he show I intended to do so, I can still be held accountable. That does not violate my rights. But should the state try to prevent me from slandering someone in advance, that quite possibly could.
What is frightening is, as I wrote in "I Knew I Was On To Something", is how often Holmes' reasoning, thought pithy and quotable, was absolutely wrong, and yet he is held up again and again as someone to be admired. Between his idiocies, and Potter Holmes' nonsensical definition of pornography, more damage has been done to the concepts of individual rights and freedoms than by a hundred, even a thousand, times as much legislative foolishness.
* This all assumes our laws only protect individual rights, that is protect us from force, theft and fraud. If laws go beyond that, prohibiting acts that do not violate the rights of another, or creating fictional rights with legal significance, then questions become much more confusing, but that is because such an extension of the law is already unduly limiting individual rights. Were the government respecting rights, there would be no issue.
By the way, the essay was done by 11:50 PM, but adding the citations took a little longer, so unfortunately it will dated the day following. Just wanted to mention this, as I did my best to live up to my "one post every day" rule.
Originally posted in Random Notes on 2011/12/31.