Shouting 'Fire!' in a Theater and Vilifying Corn Dealers

• Author: Vincent Blasi
• Pages: 535-569

SHOUTING “FIRE!” IN A THEATER AND VILIFYING

CORN DEALERS1

VINCENT BLASI*

I. INTRODUCTION

Five years ago, Fred Schauer published an article with the intriguing

title: ―Do Cases Make Bad Law?‖2 Playing off Holmes‘ observation that

―[g]reat cases like hard cases make bad law,‖3 Schauer explored the

possibility, as he put it, that ―it is not just great cases and hard cases that

make bad law, but si mply the deciding of cases that makes bad law.‖4 His

concern, confirmed and deepened by his characteristically balanced

inquiry, was that general principles forged in the resolution of specific

legal disputes can suffer by virtue of that provenance.5 Because such

principles by definition are meant to carry some measure of authority in the

resolution of future disputes, a principle invoked to justify a particular case

outcome needs to be formulated with an accurate understanding of what

kinds of cases, in what proportions, are likely to arise in the future that

would be subject to the principle that is employed to decide the case at

hand.6 And that understanding, Schauer maintained, more often than not

will be distorted by various cognitive biases that derive from the partial

Copyright © 2011, Vincent Blasi.

* Corliss Lamont P rofessor of Civil Liberties, Columbia Law Schoo l. This is a revised

version of the John E. Sullivan Lecture, delivered at the Capital University Law S chool on

April 8, 2010. Having met Professor Sullivan at the 2009 Sullivan Lecture and having

heard in the tributes of his former students about his high standards and loving devotion to

his craft, I was honored to be invited to give the Sullivan Lecture. I am indebted to Kent

Greenawalt, Joseph Raz, and especially Frederick Schauer for their constructive criticisms

and help ful suggestions, and to Brent Ferguson and Lisa Sokolowski for superb research

assistance. I also want to thank my former student, Professor James Beattie of the Capital

law faculty, for introducing me to the wonderfully vibrant intellectual community of which

he is a part.

1 See Frederick Schauer, On the Relation Between Cha pters One and Two of John

Stuart Mill’s On Liberty, 39 CAP. U. L. REV. 571 (2011), for a response to this article.

2 Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 883 (2006).

3 N. Sec. Co. v. United States, 193 U.S. 197, 400 (1904).

4 Schauer, supra note 2, at 885.

5 See id. at 884–85.

6 Id. at 893–94.

536 CAPITAL UNIVERSITY LAW REVIEW [39:535

and often unrepresentative information generated by the instant litigation7

and by the pull of equities specific to the case before the court.8

My topic in this lecture is not real cases, with their potential to distort

the choice of principles, but rather hypothetical cases. Such figments of

the human imagination no doubt spring from and perpetuate cognitive

biases of their own,9 biases that could lead to the adoption of principles

that are less efficacious than others that might have been adopted but for

the distortions introduced by thinking about the hypothetical case. On the

other hand, as Professor Schauer has observed, hypothetical cases may

exert a less powerful distorting influence than real cases precisely because

their lack of flesh-and-blood, on-the-ground facts and parties gives them

less salience, and on that account less gravitational pull in the process of

principle selection.10 One might even speculate that because hypothetical

cases are invented for their heuristic efficacy, they can provide a

countervailing salience that might diminish the distorting effects of the

information and equities presented by the case at hand.

This problem of the distorting effect of the use of hypothetical cases in

legal reasoning is potentially a rich subject. It is, however, a line of

inquiry that I am neither inclined nor well equipped to pursue. My interest

in hypothetical cases lies elsewhere. I will examine what are probably the

two most famous hypothetical cases about free speech ever devised, not to

assess their possible distorting influence but rather to determine what they

are supposed to prove.

No one familiar with the history of Anglo-American thought about the

freedom of speech will be surprised by my choice of examples. The first is

John Stuart Mill‘s statement in On Liberty that the opinion that corn

dealers are starvers of the poor ―may j ustly incur punishment when

delivered orally to an excited mob assembled before the house of a corn

dealer.‖11 The second is Justice Oliver Wendell Holmes‘ dictum that the

First Amendment ―would not protect a man in falsely shouting fire in a

theatre and causing a panic.‖12 Mill and Holmes not only produced

philosophical arguments that have figured prominently in modern analysis

of the freedom of speech, they also devised limiting cases that have proved

7 Id. at 894–99.

8 Id. at 899–901.

9 See id. at 894–96.

10 Id. at 913.

11 See JOHN STUART MILL, ON LIBERTY 121 (David Bromwich & George Kateb eds.,

Yale Univ. Press 2003) (1859).

12 Schenck v. United States, 249 U.S. 47, 52 (1919).

2011] SHOUTING ―FIRE!‖ IN A THEATER 537

through the years to have unexpected resonance. A critical comparison of

these famous starting points for marking the limits of free speech is in

order.13

II. VILIFYING THE CORN DEALER

Few political issues in Mill‘s time generated so much class warfare and

political antipathy as the Corn Laws, protective tariffs that exerted upward

pressure on the price of bread to the benefit of farmers and agricultural

laborers and the dismay of the urban poor mired in their Malthusian

demographics.14 In Victorian England, to express an opinion regarding the

character or intentions of corn dealers was to touch nerves.15

In On Liberty, Mill defends the principle that ―the only purpose for

which power can be rightfully exercised over any member of a civilized

community, against his will, is to prevent harm to others.‖ 16 He asserts

that this principle entails ―absolute freedom of opinion and sentiment on all

subjects.‖17 He then observes, enigmatically:

The liberty of expressing and publishing opinions may

seem to fall under a different principle, since it belongs to

that part of the conduct of an individual which concerns

other people; but, being almost of as much importance as

the liberty of thought itself, and resting in great part on the

same reasons, is practically inseparable from it.18

13 Surprisingly, despite the dominant role that Mill and Holmes have pla yed in the

history of thought about the freedom of speech, until last year there existed in the scholarly

literature no detailed comparison of their theories. That omission is corrected by Irene M.

Ten Cate, Speech, Truth, and Freedom: An Examination of John Stuart Mill’s and Justice

Oliver Wendell Holmes’s Free Speech Defenses, 22 YALE J.L. & HUMAN. 35 (2010).

14 See MARK OVERTON, AGRICULTURAL REVOLUTION IN ENGLAND: THE

TRANSFORMATION O F THE AGRARIAN ECONOM Y 1500–1850, at 1 45–46 (1996); Cheryl

Schonhardt-Bailey, Introduction to FREE TRADE: THE REPEAL OF THE CORN LAWS, at xviii–

xxvii (1996); J. R. Wordie, P erceptions a nd Reality: The Effects of the Corn Laws and

Their Repeal in Engla nd, 1815–1906, in AGRICULTURE AND POLITICS IN ENGLAND, 1815–

1939, at 33, 33–35 (J. R. Wordie ed., 2000). For more information on the eighteenth

century background to this chronic and often violent conflict over the price of b read, see E.

P. Thompson, The Moral Economy of the English Crowd in the Eighteenth Century, 50

PAST & PRESENT 76, 94–107 (1971).

15 See sources cited supra note 14.

16 MILL, supra note 11, at 80.

17 Id. at 82.

18 Id. at 82–83.