“An opinion that corn-dealers are starvers of the poor, Source or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.”
This powerful analogy comes from John Stuart Mill‘s 1859 essay, On Liberty. It serves as a cornerstone for understanding the limits of free speech. Mill was a passionate defender of expression. However, he also recognized that words could cause direct harm. His famous “harm principle” suggests that society can only restrict liberty to prevent harm to others. The corn-dealer example perfectly illustrates this boundary.
Mill argues that context is everything. An idea published in a newspaper is for public consideration. Readers can debate, dismiss, or accept it. In contrast, shouting the same idea to an angry mob outside a person’s home is different. The speech is no longer just an opinion. It becomes a direct catalyst for violence. Therefore, the immediate threat of harm justifies legal punishment.
From a 19th-Century Analogy to Modern Law
Mill’s thinking profoundly influenced legal doctrines on incitement. His focus on immediate danger and context echoes through landmark court decisions. For over a century, legal systems, particularly in the United States, have grappled with where to draw this line. They have tried to create clear tests to distinguish protected speech from illegal incitement. This effort has led to the development of several important legal standards.
Early in the 20th century, the U.S. Supreme Court developed the “clear and present danger” test. This standard allowed the government to restrict speech that posed an immediate threat to national security or public order. For example, the court used it to uphold convictions for distributing anti-draft leaflets during World War I. While a step toward Mill’s idea, critics found this test too vague. It could sometimes be used to suppress dissent rather than just prevent violence.
The Gold Standard: Imminent Lawless Action
To address these concerns, the Supreme Court refined its approach. Source In a landmark 1969 case, the court established a more rigorous standard. This is known as the “imminent lawless action” test. . This test is the current legal standard and it has two critical parts.
First, the speech must be directed at inciting or producing imminent lawless action. This means the speaker must intend to cause immediate trouble. Vague calls for future rebellion are not enough. Second, the speech must be likely to incite or produce such action. Essentially, there must be a real chance the crowd will act on the speaker’s words. This standard directly reflects the urgency of Mill’s “excited mob” at the corn-dealer’s door. It protects abstract advocacy of violence but punishes direct calls to immediate lawlessness.
Key Factors in Determining Incitement
Modern courts analyze several factors to apply the imminent lawless action test. These factors align closely with the elements Mill highlighted in his analogy. Understanding them helps clarify the boundary between protected and punishable speech.
First, the audience is crucial. Is the speaker addressing a group of scholars in a lecture hall or an agitated crowd with a history of violence? The nature of the audience helps determine the likelihood of imminent action. An “excited mob” is far more likely to act on inflammatory words than a passive readership.
Second, the context and location matter immensely. Shouting “fire” in a crowded theater is the classic example. Similarly, Mill’s scenario takes place directly before the corn-dealer’s house, making the target clear and immediate. The setting can transform a political statement into a direct threat. Finally, the directness of the call to action is analyzed. The speech must do more than just create a tense atmosphere. It must actively encourage and direct others to break the law right away.
The Corn-Dealer in the Digital Age
Mill’s analogy remains surprisingly relevant today. However, the internet presents new challenges. What constitutes an “excited mob” online? How do we measure “imminence” when a social media post can spread globally in seconds? These questions are at the forefront of modern legal debates.
Online platforms can assemble virtual mobs that engage in targeted harassment or coordinate real-world harm. Consequently, lawmakers and tech companies struggle to apply 19th-century principles to 21st-century technology. The core idea, however, remains the same. Speech that directly and imminently incites violence crosses a line. John Stuart Mill’s corn-dealer helps us remember why that line must exist, even in a society that values free expression above almost all else.