Brandenburg v. Ohio and its Relationship to Masses Publishing Co. v. Patten

2018, Current Issue, Print, Volume 50 (2018) Issue 3 (Fall)
50 Ariz. St. L.J. 791 (2018). Martha A. Field. My role in this symposium, and my paper, are less academic than others’. I clerked for Justice Abe Fortas during the 1968–69 Term and worked with him on Brandenburg v. Ohio. I will describe the process by which Brandenburg was created, its per curiam status, and its meaning as seen from the perspective of its author. I also will address the theme of this conference, especially the claim that Brandenburg incorporated Learned Hand’s view of the First Amendment. Full Article
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The State of Free Speech Doctrine in 1917

2018, Current Issue, Print, Volume 50 (2018) Issue 3 (Fall)
50 Ariz. St. L.J. 911 (2018). David M. Rabban. Contrary to the assumption of most legal scholars and judges since 1917, there was substantial adjudication of free speech issues throughout the state and federal judicial systems in the late nineteenth and early twentieth centuries. The decisions overwhelmingly rejected free speech claims. No court was more hostile to them than the United States Supreme Court. The judicial hostility extended beyond any individual issue or litigant. Some of the most restrictive decisions were written by Oliver Wendell Holmes, Jr., first as a judge on the Supreme Judicial Court of Massachusetts and subsequently as a justice on the United States Supreme Court. The most common judicial analysis allowed the punishment of speech for its alleged “bad tendency.” A few decisions, mostly in the…
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The Historical Significance of Judge Learned Hand: What Endures and Why?

2018, Current Issue, Print, Volume 50 (2018) Issue 3 (Fall)
50 Ariz. St. L.J. 855 (2018). Edward A. Purcell, Jr. The 100th anniversary of Judge Learned Hand’s opinion in Masses Publishing Co. v. Patten invites us to look back on its author’s long career and to consider his contributions to American law and his significance in the nation’s history. Spanning more than fifty years from the presidency of William Howard Taft to the presidency of John F. Kennedy, Hand’s judicial career presents an exceptionally rich subject for such reflection. Full Article
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Art’s First Amendment Status: A Cultural History of The Masses

2018, Current Issue, Print, Volume 50 (2018) Issue 3 (Fall)
50 Ariz. St. L.J. 687 (2018). Amy Adler. This Article explores a little-known chapter in the cultural history of The Masses, the radical, iconoclastic, and artistically cutting-edge publication that was the subject of Learned Hand’s landmark First Amendment decision in Masses Publishing Co. v. Patten (1917). The Article sets forth the story of an internal battle about freedom of expression in the arts that had shaken The Masses to its core in the year leading up to Hand’s famous decision. The Masses was founded on two central premises: first, that absolute freedom of expression was necessary for its mission; and second, that art and politics must be inextricably intertwined in pursuing this mission because creativity was itself an act of political rebellion against capitalism. Yet this marriage between art and…
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Learned Hand’s Masses Decision: Vindication and Influence

2018, Current Issue, Print, Volume 50 (2018) Issue 3 (Fall)
50 Ariz. St. L.J. 927 (2018). James Weinstein. On July 24, 1917, Learned Hand, then a young judge on the United States District Court for the Southern District of New York, enjoined the New York City Postmaster from refusing to mail the August issue of a self-proclaimed “revolutionary” magazine called The Masses. The Postmaster had deemed the issue nonmailable because in his view material condemning America’s involvement in World War I tended to cause “insubordination, disloyalty, mutiny [and] refusal of duty” and “obstruct[ed] the recruitment or enlistment service of the United States” in violation of the Espionage Act of 1917. Judge Hand began his opinion by construing the Espionage Act against a background of “that right to criticize either by temperate reasoning, or by immoderate and indecent invective, which is…
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Anxiety and Influence: Learned Hand and the Making of a Free Speech Dissent

2018, Current Issue, Print, Volume 50 (2018) Issue 3 (Fall)
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…
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Learned Hand’s Seven Other Ideas About the Freedom of Speech

2018, Current Issue, Print, Volume 50 (2018) Issue 3 (Fall)
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.…
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The Origins of the Espionage Act of 1917: Was Judge Learned Hand’s Understanding of the Act Defensible?

2018, Current Issue, Print, Volume 50 (2018) Issue 3 (Fall)
50 Ariz. St. L.J. 919 (2018). Geoffrey R. Stone. In the spring offensives of 1915, England and France lost 240,000 men and Germany 140,000, with no net change in position. The following summer, the British suffered 60,000 casualties on a single day in the Battle of the Somme. Between the outbreak of war in Europe and the decision of the United States to enter the conflict in the spring of 1917, there was continuing debate about the nation’s best course of action. Most Americans believed that the war in Europe did not implicate vital interests of the United States. What finally drew the United States into the war was the German submarine blockade. Full Article
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Lawyer for The Masses: The Role of Gilbert Roe in Masses Publishing Co. v. Patten

2018, Current Issue, Print, Volume 50 (2018) Issue 3 (Fall)
50 Ariz. St. L.J. 747 (2018). Eric B. Easton. Masses Publishing Co. v. Patten is justly celebrated for the courageous, if futile, opinion of Judge Learned Hand. The Masses itself is justly celebrated for its courageous, if futile, opposition to American involvement in World War I. Gilbert Ernstein Roe, lawyer for The Masses, who both influenced Hand’s decision and contributed to the magazine’s brief survival, has most unjustly never been celebrated and is all but unknown today. Who was Gilbert Roe? And what was his role in that famous Espionage Act case of a century ago? Full Article
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A Tale of Two Hands: One Clapping; One Not

2018, Current Issue, Print, Volume 50 (2018) Issue 3 (Fall)
50 Ariz. St. L.J. 831 (2018). Burt Neuborne. My thanks to the editors of the Arizona State Law Journal for organizing this symposium celebrating the 100th anniversary of Judge Learned Hand’s brilliant and courageous, if unsuccessful, effort in Masses Publishing Co. v. Patten to slow down the repressive train that was running amok over Americans who vigorously spoke out against America’s entry into World War I. While many have chronicled the major Supreme Court cases from Schenck to Gitlow failing to protect free speech during and after World War I, they usually don’t go beneath the surface of the Supreme Court to plumb the massive wave of repression that swept the nation in the summer and fall of 1917, fanned by jingoism, fear of immigrants, war fever, fear of communism,…
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