273 U.S. 418 (1927), argued 6–7 Oct. 1926, decided 28 Feb. 1927 by vote of 5 to 4; Sutherland for the Court, Holmes, Brandeis, Stone, and Sanford in dissent. New York sought to protect theatergoers against the excessive charges demanded by licensed brokers who trafficked in ticket resale. The Court disagreed in this renowned and widely criticized opinion. Theaters were not public utilities or affected with a public interest, the Court ruled. Theaters served only a small percentage of the public and neither they nor that limited public could enjoy special governmental protection or privilege. Writing for the majority, Justice George Sutherland pointed out that a ticket agency did not fall into any of the three categories Chief Justice William H. Taft had listed in Wolff Packing v. Court of Industrial Relations (1923), and thereby held the law unconstitutional as a violation of freedom of contract.
There were four dissents. Justice Oliver Wendell Holmes objected strongly to the use of the public interest doctrine in curtailing legitimate social control. The legislature, he argued, when it had sufficient force of public opinion behind it, should have the power to forbid or restrict any business without legal apology. He urged, more broadly, that legislatures should do what they saw fit to do unless restrained by some express prohibition in the Constitution. The concept of public interest, he made clear, was an artificial one, little more than a fiction intended to “beautify what is disagreeable to the sufferers” (p. 446). Justice Louis Brandeis concurred. Justice Harlan F. Stone, in a separate dissent, deplored how far the Court had progressed in destroying the various criteria of social control formerly accepted as valid. In substance, the minority judges were all demanding that the entire concept of public interest be abandoned and replaced by a recognition of the general right of any state legislature to regulate private business whenever it though the public welfare demanded it.
Paul L. Murphy