M.N. Rothbard, 1956, Submitted to National Review, but rejected:
I would like to take this opportunity, once and for all, to set the record straight on the famous old cliché: “after all, no man has a right falsely to shout fire in a crowded threatre.”
This formula of that old cynic, Justice Holmes, has been used time and again as an excuse for all manner of tyranny. Just exactly why does no man have this right? Is this really a case where libertarian principle must give way to a diluting “prudence”? There are two possibilities: either the shouter is the owner of the theatre or he is not. If he is the owner, then he is clearly violating the evident contract which he made with the patrons: to put on a play which the patrons can watch – a contract which they executed in cash. By disturbing this performance, he is violating the contract. If the shouter is not the owner, then he is clearly trespassing on the owner’s property. He was permitted on that property on the ground that he would peacefully watch the play, a contract which he is obviously violating. The false shouter of “fire,” therefore, is punishable not because free speech should be restricted, but because he is violating the property right of others. And property right, in libertarian principle, is one of the basic natural rights of man.
