[ExI] Crying "fire" in a crowded theater: Rothbard's view

Dan dan_ust at yahoo.com
Wed Apr 29 13:14:11 UTC 2009

--- On Tue, 4/28/09, painlord2k at libero.it <painlord2k at libero.it> wrote:
> Il 28/04/2009 16.06, Dan ha scritto:
> > I'm surprised to see no one is looking at what
> Rothbard actually
> > wrote on this subject at:
> > 
> > http://mises.org/rothbard/newlibertywhole.asp
> > 
> > (Just search on "fire" for the passage dealing with
> this issue.)
> > 
> > Notice how this view actually clears up much.  No
> need for a judge or
> > government to weigh one person's rights against
> another's (or against
> > an collective or abstraction like "society" or the
> "community").  No
> > need for fuzzy boundaries.  This is not to say
> that Rothbard's system
> > completely banishes all ambiguities and fuzziness, but
> I believe, in
> > this case, it confutes Holmes and his seconds. 
> (There is one fault
> > in Rothbard's analysis: a third party -- neither owner
> nor patron --
> > might cry "fire" in the theater.  But, in that
> case, in his system,
> > it still resolves to a property rights issue.)
> I agree that, in a libertarian society, a person living in
> a compact that don't fulfil his obligation to common defence
> or, worse, act in a way damaging the common defence
> obligation he accepted freely could be sanctioned using
> property rights and / or placing him in outlaw status.

I'm not sure what you mean here.  Do you mean someone who expressly makes consents to some sort of common defense arrangement?  Or are you relying on some form of tacit consent?  If the latter, then, I submit, you're not talking about a libertarian society.
> For example, people could give up a collateral when
> accepting to serve in the local militia. If they don't show
> up to serve when a call is done, they forfeit the collateral
> that will be divided between the people showing. Something
> like his home.
> In the case of Schenck v. United States this would become a
> breach of contractual duties.

How does this relate to Rothbard's view of Holmes crying-fire-in-a-crowded-theater argument?

In my understanding of Schenck v. United States, I completely and wholeheartedly disagree.  Schenck was not under contractual obligation to the federal government not to express his opinion concerning the draft and the war.  Even if he were under some sort of obligation for common defense -- something that remains to be proved -- it's hard to see how that same government's involvement in a European war had anything to do with the common defense.  At best, it'd be a matter of opinion and one could easily imagine a reasonable opinion against that war being for common defense.




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