Shouting “Fire” in an Empty Theater

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The key thing to grasp about the Two Tweeters facing 11 year jail sentences in Bolívar state  is that these people had zero influence. Luis Enrique Acosta seems to have had fewer than 50 followers on his Twitter account at the time he published his Banned Thought, and Carmen Cecilia Nares may have had less than 10. (It’s still not clear what, if anything, she wrote.)

In comments, Roy cites the famous "shouting fire in a crowded theatre" paradigm for the kinds of speech that are not protected. But what we have here is something closer to shouting fire in an empty theory: the two accused simply didn’t have the means to carry out the crime they’re being accused of. It’s – to strain for a metaphor here – like indicting someone who shoots you with a water pistol for attempted murder. 

Lets think this through. What is being punished when somebody shouts "fire" in a crowded theatre isn’t the speech, it’s the rush for the exits that speech generates. To speak, in such a situation, is to act: by saying something, you’re doing something. The key thing to grasp is that what’s illegal, what can be illegal in a democratic society, is what speech does, not what it says.

Oliver Wendell Holmes’s original usage is clear on this point – it’s the "substantive evils" that follow when you falsely scream fire in a crowded theatre that renders the act illegal: no stampede, no foul.

Of course, you could well imagine an analogous scenario in Twitter. Say a tweeter with thousands of followers starts tweeting about the imminent collapse of a big bank he knows to be solvent. Say he works maliciously to undermine the bank, that he gets others to retweet the messages. Say he sets out to engineer a run on a specific bank he knows to be solvent. And, most importantly, say it works, say people start queueing up outside the bank to withdraw their money, and the situation snowballs, quickly turning into a self-fulfilling prophecy.

Under those circumstances, by tweeting something you would be doing something, and that something you’d be doing would very probably be considered illegal anywhere in the world. 

The point here is that in specifically targeting two extremely low profile Tweeters, two people whose isolated habla-paja tweets had had zero real-world effects, and would’ve gone entirely unnoticed by 99.99999% of Venezuelan bank customers were it not for the government’s decision to go after them, chavismo is sending a message of its own, a message of intimidation nobody could miss. They’re saying, in effect: "the anonymity of small numbers will not protect you. Our power over you is not limited, and our discretion in choosing which of our opponents walk free and which spend their nights in jail is untrammelled. Cross us at your own risk."

That’s what this is about. Had the government chosen to target high profile, more influential twitter users, that message may not have come across so starkly. The small-fry like you and me might have continued to labor under a false impression of safety. Only by targeting minnows could the message come across as clearly as it does. 

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