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 normally the privilege of the individual in countries dependent upon free expression as the ultimate source of authority.” In light of this basic democratic precept, Hand distinguished between “direct incitement to violent resistance,” which could be properly punished, and “political agitation,” which is “a safeguard of free government.” He emphasized that this distinction “is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom.”