Some time ago, I wrote against the fallacious argument in favor of government censorship: that the government must legally restrict speech generally because “you can’t yell ‘fire!’ in a crowded theater.” One paper in William & Mary Bill of Rights Journal calls this “Constitutional Law’s Most Enduring Analogy.”

This argument has several problems: 1) the argument is a statist non sequitur that unnecessarily leaps to the requirement for state action; 2) the “fire in a theater” argument has never been used historically to literally argue that government must restrict speech in theaters, but instead to replace and bypass solid argumentation in order to justify general government censorship with a seemingly intractable problem. The “fire in a theater” argument is just a rhetorical attempt to obtain a password or cheat code, that is, provision of such a seemingly difficult case to freedom of speech that it becomes tentative and granted by state discretion. The appeal to a hypothetical like “fire in a theater” is an emotionally manipulative shortcut to arguing for speech controls that would otherwise be indefensible.

Like the stupefying building of roads, many present the “fire in a theater” argument as an unsolvable problem that leads inexorably to general state control of speech, not just in theaters—the alleged location of the intractable problem—but everywhere. Without legislation and without the need for broad discretionary powers for government to restrict certain kinds of speech, this problem is already solved with laws concerning property rights, trespass, contract, and tort.

The fundamental question is actually not about speech or expression in the abstract, but rather about self-ownership, property rights, contract, and location of the speech in question. While we may appreciate free speech as a key American value, the more consistent argument is that speech rights ought to determined—not by government limitations for key categories of illegal speech—but by where the speech takes place, who the rightful owner is, contractual requirements determined by the owner, and the property owner’s right to exclude. Besides the general right to use our minds and bodies to physically speak as self-owners, there is no abstract right to “free speech” per se, but rather consideration of where the speech takes place and what the restrictions of the property owner are. Murray Rothbard argued not only that property rights are human rights, but that all legitimate rights are property rights. This puts freedom of speech in a more consistent legal framework,

Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, there is no such thing as a separate “right to free speech”; there is only a man’s property rights: the right to do as he wills with his own or to make voluntary agreements with other property owners. …

Last November, I saw Wicked in a theater with my wife and brother-in-law. Prior to the show, a manager came in to provide a few reminders. Since people paid for tickets to hear the stars in the movie sing, theatergoers were asked to refrain from singing along for this showing (unless we all spontaneously started singing together at the same time). Through property rights, the right to exclude, restrictions by contract, and laws that already uphold these things, speech was effectively regulated in a way that did not violate anyone’s rights and did not involve general government censorship in theaters or anywhere else. Additionally, recognizing the opportunity for different consumer markets for different consumer preferences, many theaters provided options to meet demand—showings that disallowed sing-alongs and showings that allowed sing-alongs, dress-up, dancing, audience performances, etc.

Likewise, Regal Cinemas posted on X/Twitter, “Level up your experience of A Minecraft Movie with our Chicken Jockey Screening exclusively in 4DX. Dress up as your favorite Minecraft characters, whoop, yelp, clap and shout CHICKEN JOCKEY.” Forbes also followed up with reporting on this in an article titled, “‘A Minecraft Movie’: Theater Chain Announces ‘Chicken Jockey’ Screenings.”

Instead of arguing for discretionary state censorship, or even banning all such behavior, theaters recognized at least two potential markets they could serve—people willing to pay to avoid such behavior and people willing to pay to participate in such behavior. These categories of differing subjective consumer demand had to be identified, specified, offered something different, and kept separate. Theaters could choose one segment of consumers over the other, and many probably did, but that was not the only option. Both groups were willing to pay to watch the movie away from each other. For the former, theaters had to offer showings where disruptive behavior was minimized and prohibited. Since streaming is also available at home, if theaters wanted to keep these people as customers, they had to offer something to keep them.

On the other hand, for the willing participants in the mayhem, some theaters saw the opportunity to get patrons to pay for their disruption and litter in a managed environment. Imagine how much money theaters must have made from people buying giant buckets of popcorn just to throw on the floor (as annoying as that might be to the paid cleaning staff). In fact, theaters already cater to many differing consumer tastes and preferences by offering multiple showtimes, locations, amenities, etc. Nothing new had to be made illegal. Human actors and entrepreneurs in a free market often avoid such all-or-nothing solutions by narrowing and specifying their markets.

What is central is that certain property owners—theater owners—are voluntarily and contractually inviting other property owners onto their property for a mutually-beneficial exchange of goods and services. The theater owners want to offer movies in conditions that attract moviegoers in exchange for money and moviegoers pay to see a movie in attractive conditions. To effectively service the subjective, differing, and sometimes even conflicting wants of various consumers, the theater owners have to decide the conditions under which customers are welcomed onto their property and conditions under which they will be excluded.

For violations of the contractual rules implicitly accepted by purchasing a ticket and voluntarily entering the theater, customers may be excluded, but customers may also refuse the invitation of theater owners if they are unsatisfied, costing theaters revenue. To earn a profit, the theater owners must—among many other things—decide which willing customers, if any, they are willing to alienate, exclude, and/or remove, and under what conditions. A framework of self-ownership, property rights, voluntary exchange, contract, tort, and laws that uphold these principles clarifies such issues instead of resorting to a vague “right” to “free speech” at the whim of state discretion or inviting state censorship for a problem the market already solves.