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TimS comments on Schelling fences on slippery slopes - Less Wrong
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The is a core part of the disagreement. The cost of preventing risk of injury from a false yell of fire is prohibitive for the owner of the theater. So it is reasonable to shift some of the cost of prevention to the person who knows there is no fire but wants to yell fire, in part because the cost of not falsely yelling fire is so low. Further, it is reasonable to expect the potential false-yeller to know that the yell will be believed, cause panic and therefore cause injury.
The Koran burner receives more protection because there wasn't a knowing falsehood in that case. The relevant mental state is not intent to harm, but knowledge of the statement's falsity.
Okay, but what it comes down to is what is the expected reaction of reasonable people in a given situation. If people can't safely exit a theatre then we need to re-think theatres. And safety tests.
If I'm in a theatre and a patron shouts that the popcorn has been poisoned (an intentional lie) then I can't conceive of any action (assuming [s]he hasn't been near the popcorn) other than ejection and ban. don't see why their liberty has to be sacrificed.
Similarly, if the risk of injury is as low as I think it (should be) is then the intent to cause panic is again not an issue for the criminal justice system. Sue them (if you can/must) and ban them for life.
The apparent agreement that a false statement that has an incredibly small chance of causing actual harm, where the harm is unlikely unless the venue is sub-par, should go beyond the basic remedies for the discomfort and damages caused by the injured parties and spill over into denying someone their liberty is worrisome.
Well, we don't agree that a venue where people would get injured in a panic is sub-par. We've learned a lot since the 1910s, but panics are like hundred year floods in that it does not make economic sense to constantly prepare for every possible event of that level of unlikeliness.
But I agree that speech that is intended to cause harm but is unlikely to be able to cause harm (i.e. an obviously false claim that the popcorn is poisoned) is not a good candidate for criminal penalty. But it's generally quite hard to prove that one intended harm if one's acts seem unlikely to be able to cause harm.