Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
First, notice that contrary to popular opinion, the 1st Amendment doesn't give “we the people” rights to practice religion, free speech, the press, etc. In fact, nowhere in the entire Constitution or Declaration of Independence, are “we the people” given rights to anything!
Why? Because rights preexist both the Constitution and the government. Rights are inalienable. Therefore, what the 1st Amendment (along with the rest of the Constitution) actually accomplishes, is to restrict the interference of our natural rights. In other words, the Constitution ensures that the government doesn't use its power to infringe or destroy these rights.
Now read the 1st Amendment again. Notice the words “Congress shall make no law.” Our Founding Fathers recognized that democratically elected officials can (and do) use their powers to violate people's rights, including the freedom of speech, religion, and of the press.
The amendment specifically states that “Congress shall make no law,” because it operates as a restriction on Congress. In fact, the entire Bill of Rights operates as a restriction on the government, due to the implicit acknowledgment that democracy is not only no guarantee of freedom, but can even be a serious threat to freedom.
Limits?
The point I want want to make today, is that you do indeed, have the right to yell 'fire' in a crowded theater. Now, I don't recommend that you do so, but unless the theater owner expressly let it be known otherwise, you certainly do have the right to do so.
But, but ... such an act as this, could be a danger to everyone in the building. Clearly then, there can be no "right" to such dangerous speech.
Unfortunately, this type of thinking today, has become a part of our collective belief system. Any type of speech that is considered “dangerous” (like yelling 'fire' in a crowded theater), or “hateful,” or even “unpatriotic,” is deemed (by free people) as speech that cannot be allowed to be spoken. From Imus to David Letterman, those who don't like what another says, now makes demands that they be forbidden to speak in the first place.
But this is wrong, because there are no “shades” of free speech. Once any form of speech (even a single word) is forbidden, our inalienable right to free speech has been violated. Free speech is like virginity, we either have it or we don't. There is no middle ground. And yes, that means people are free to say vulgar, hateful, dangerous, and irresponsible things.
Look at North Korea for example. People there are free to say and publish anything the government agrees is “responsible.” But, is this free speech? No. They aren't expressing true free speech, au contraire, because the true test of freedom is not whether popular and/or “responsible” speech is protected from government assault, but instead whether the most vile and despicable speech has such protection too.
Natural Rights vs. Positive Rights:
Ever since the Progressive movement started in the late 1800's, there's been a constant attack on the idea of natural rights, in favor of positive rights. Natural rights states that our rights preexist government, they are ours by nature, simply by being human. Another way of putting it, is that our rights stem from God and not man. He gave us our own free will.
Legal positivism says this is nonsense however, because rights are “the child of law.” In other words, law preexists humans, therefore rights are only what the law describes. So if we accept positive law instead of natural law, then we must accept too, that we do not own ourselves, via nature or God. Instead, the State owns us, and thus determines our rights.
Summary:
To claim there is no right to yell 'fire' in a crowded theater, is to reject natural rights in favor of positive rights. This means that neither man, nature, nor even God is our ultimate authority, but instead, the government's ruling elite is the one and only authority. And if man cannot speak without the prior approval of the authorities, then man does not own himself, but is owned by the State.
Legal positivism states that government preexists man, thus it gives him his rights. By accepting this, we must call into question our Bill of Rights, government “by the people,” and even the Christian belief that God is the ultimate authority. In denying these these concepts, it makes perfect sense to claim that government can stop you from yelling 'fire,' prior to you doing so, because natural law has been negated.
Under natural rights however, yelling 'fire' in a crowded theater may not be wise, but you certainly have the right to do so, because your rights preexist government and its laws. Now in a free society, you can still be held accountable for any harm caused by doing so, but any claim that there is no right to do so in the first place, rests solely on legal positivism.
Personally, I reject legal positivism in favor of natural rights.
Like I said before, free speech is like virginity. You either have it or you don't. While it may be “wrong” to yell 'fire' in a crowded theater, and there may even be consequences for doing so ... Our rights preexist government, therefore a person does indeed have the right to yell 'fire' in a crowded theater. And since the right of free speech preexists government, it is immoral for the government to attempt to stop you from any form of speech.
