Anxiety and Influence: Learned Hand and the Making of a Free Speech Dissent

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50 Arz. St. L.J. 803 (2018). Thomas Healy.

In a letter to Justice Oliver Wendell Holmes in the spring of 1919, Learned Hand described his decision in Masses Publishing Co. v. Patten as “my little toy ship which set out quite bravely in the shortest voyage ever made.” At the time, that certainly must have been the way things looked to Hand. A judge on the Second Circuit had stayed his decision the same day it was issued, and the full appeals court had reversed it three months after that. Moreover, as Hand noted in a subsequent letter to Harvard Law professor Zechariah Chafee, his Masses opinion “seemed to meet with practically no professional approval whatsoever.” The response was so discouraging that Hand, preternaturally anxious and self-doubting, began to question the decision himself. “I kept up my hopes till Debs’s case,” he wrote to Chafee, referring to the Supreme Court’s ruling in United States v. Debs, “and when the whole court affirmed that without laying down anything like what I thought was the rule, I confess I began to wonder whether I had not got some kind of wrong squint on the subject.”

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