While the boring Koran non-burning story was running, over on Radio 5 Live someone used the metaphor that "you’re not allowed to shout ‘Fire’ in a theatre" as the basis for circumscribing free speech.

And here is a grander person, namely US Supreme Court Justice Stephen Breyer, saying the same thing:

Supreme Court Justice Stephen Breyer told me on GMA that he’s not prepared to conclude that — in the internet age — the First Amendment condones Koran burning.

“Holmes said it doesn’t mean you can shout ‘fire’ in a crowded theater,” Breyer told me. “Well, what is it?  Why?  Because people will be trampled to death.  And what is the crowded theater today?  What is the being trampled to death?”

This vacuous idea keeps coming up, despite my own sterling efforts to demolish it:

The point of these examples is that they make us consider finely-grained nuances of Responsibility and Causation at the heart of our jurisprudence and therefore our civilisation.

It is a basic precept of Western law and morality that if X is to be held responsible for damage to Y, Y has to prove that he has suffered some damage and that X’s actions caused it, if maybe only as one contributing cause along with others.

See this classic and this gallop through the arguments.

Because such questions are so far-reaching and important – and subtle – they need careful handling in the courts, lest precedents set in one context have a ruinous wider effect.

David French at NRO has another attempt to explain what is happening here:

Typically, American hecklers will merely shout down speakers, throw pies at them, issue largely empty threats, and vandalize. True political violence is (thankfully) quite rare.

Consequently, when courts condemn the “heckler’s veto,” they’re simply codifying constitutional common sense. How can your speech be free if petty disruptions can silence you? Why not use law enforcement to protect free speech?

The violence from Islamic radicals, on the other hand, shocks the conscience. Thousands rioting? Dozens dying? Beheadings? Torture?

This level of violence is terrifying. It’s orders of magnitude beyond heckling. The manageable heckler’s veto becomes the unmanageable beheader’s veto, and judges have trouble formulating a response that protects speech and human life…

The other curious feature of this lame Fire/Theatre metaphor is that it is another version of a bogus slippery slope argument:

  • There are a few cases where the law limits free speech to stop people creating circumstances likely to harm others, eg by maliciously creating a panic in a crowded theatre by shouting Fire!
  • It therefore follows that if we can see that any harm might arise from someone using free speech, the law may and perhaps must step in to block that free speech

See the sly, oppressive logic leap trick skulking there?

It is the little word ‘from’: harm might arise from someone using free speech.

Because the strong, classic case of someone maliciously shouting Fire! in a crowded theatre demonstrates a clear and direct chain of causality. Had that person kept quiet there would have been no panic. He deliberately sought to create panic among normal law-abiding people. The threat comes from the shouter, not from the public.

By contrast, the violent rage of Islamic extremists is not caused in any sense that matters by some dim American burning a Koran. It exists independently, a swarm of malevolence buzzing about the planet looking for a new cause to alight on and devour. The overwhelming threat to law and order – and so the proper focus of the law – comes from them.

Now, it’s an interesting legal and moral question as to how society should deal with mentally disturbed people in its midst who can get triggered off into violence by some otherwise harmless event.

Thus on TV there are sometimes warnings that a programme may contain strobe lighting or other special effects which might prompt epileptic fits. This warns people who know themselves to be susceptible to being ‘triggered’ to look away.

What about Islamist fanatics and or neurotic shoppers enraged by supposedly raaaacist Barbie dolls?

In law we have the ‘eggshell skull’ rule: if you do something tortious (not tortoise – that’s a hard shell) and one victim just happens to be prone to incur much greater damage as a result, too bad for you when the damages claim appears.

So if something you do happens to upset a category of people (who are prone to froth themselves to be upset at such things), should the law come down against you accordingly?

Or is that a blank cheque for the most neurotic to rule the rest of us?

Islamic fanatics! You can’t have it both ways!

Either you are reasonable people, in which case you should exercise self-control and not get upset if other people use their free speech to jeer obnoxiously at your religion. It’s called freedom. Deal with it.

Or you can not control yourselves in such trivial circumstances, and so must be presumed to be seriously mentally ill. In fact, quite mad, so no-one needs to take you seriously other than as a nasty ad hoc threat to civilisation.

You choose.

So, sooner or later, do we.