Document Type


Publication Date



Sitting as a federal district judge in the case of Masses Publishing Co. v. Patten, Learned Hand was called upon to interpret the Espionage Act of 1917 just six weeks after its passage. The Act was potentially the most speech-restrictive piece of federal legislation since the Alien and Sedition Acts of 1798. Judge Hand recognized this and ruled that the terms of the Act must be construed in light of the first amendment. He defined the limits of legally protected war criticism, and presumably of political advocacy generally, according to a test that makes the crucial consideration the content of the speaker's message. He ruled that speech is not a sufficient basis for legal sanctions so long as "one stops short of urging upon others that it is their duty or their interest to resist the law ....” It is clear from his correspondence that Hand took pride in this test and in the reasoning that lay behind it, and hoped his approach would serve as a benchmark for interpretation of the first amendment.

He was sorely disappointed. His judgment in the Masses case, holding that war criticism that stopped short of explicit counseling of law violation could not be banished from the mails, was quickly overruled by the Second Circuit. His eloquent and carefully reasoned opinion in Masses did not elicit much attention or admiration from academic commentators. Especially disconcerting to Hand was his failure to persuade Justice Oliver Wendell Holmes, the judge he probably admired most.


First Amendment | Law