Learned Hand’s Seven Other Ideas About the Freedom of Speech

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50 Ariz. St. L.J. 717 (2018). Vincent Blasi.

I say “other” because, regarding the freedom of speech, Learned Hand has suffered the not uncommon fate of having his best ideas either drowned out or credited exclusively to others due to the excessive attention that has been bestowed on one of his lesser ideas. Sitting as a district judge in the case of Masses Publishing Co. v. Patten, Hand wrote the earliest judicial opinion about the freedom of speech that has attained canonical status. He ruled that under the recently passed Espionage Act of 1917, writings critical of government cannot be grounds for imposing criminal punishment or the denial of mailing privileges unless the authors tell their readers it is in their interest or is their duty to violate the law. Hostile criticism very likely to cause harm or intended to do so is not punishable under that statute, he concluded, if it stops short of direct advocacy of law violation. He derived this standard in the guise of statutory interpretation but very little in the text of the law or its history of passage suggested his reading. Rather, to support his preferred test Hand drew upon what he took to be the basic presuppositions of democratic governance, assumed to underlie the enactment of the statute. In subsequent private correspondence, he repeatedly invoked his test as not only implicit in the Espionage Act but also the best interpretation of the First Amendment.

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