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Analyzing Judge Hand's Opinion in Masses


Judge Learned Hand's opinion in Masses v. Patten is widely regarded as a landmark case in First Amendment jurisprudence. By dissecting the language of the 1917 Act with meticulous detail, Hand's opinion reflects his deep engagement with constitutional principles and their implications for free speech.

In the case of Masses Publishing Co. v. Patten (1917), the United States Supreme Court grappled with the tension between freedom of speech and government censorship during times of war. The Masses, a socialist magazine, had published articles critical of U.S. involvement in World War I, prompting the government to use the Espionage Act of 1917 to suppress such dissent. The court ruled against The Masses, upholding the government's right to censor speech that posed a clear and present danger to national security, setting a precedent for limitations on free speech during wartime. This case underscored the delicate balance between protecting individual liberties and ensuring national security, highlighting the complexities inherent in safeguarding freedom of expression during times of crisis.

Judge Hand's First Amendment Theory

Hand's approach to the First Amendment aligns closely with the principles articulated by James Madison, a key figure in American constitutional history. He emphasizes the fundamental right to criticize, viewing it as a cornerstone of democratic governance. Hand suggests that public opinion, rather than government authority, serves as the ultimate source of legitimacy in a democratic society.

Derivation of the Test

Drawing from Madison's writings and speeches, Hand derives a test that emphasizes the sovereignty of the people over the government. He argues that the Constitution establishes a government accountable to the populace, not one that wields unchecked power over its citizens. Hand's test, therefore, focuses on whether speech encourages resistance to laws and impedes governmental functions.

Implications for Free Speech Claims

In light of Madison's premise, as elucidated in New York Times Co. v. Sullivan (1964), Hand's test has profound implications for free speech claims. Madison's emphasis on the people's sovereignty underscores the importance of protecting dissenting voices and fostering robust public discourse, even when it challenges governmental authority.

Court of Appeals Reversal

Despite Hand's persuasive argument, the Court of Appeals for the Second Circuit ultimately reversed his decision in Masses Publishing Co. v. Patten. The court rejected Hand's narrow interpretation of the law, asserting that speech need not explicitly advocate resistance to be considered obstructive. Instead, any speech that impedes governmental functions, including recruitment and enlistment, may be subject to regulation.


Judge Learned Hand's opinion in Masses v. Patten offers a compelling interpretation of the First Amendment, rooted in the principles of democratic governance and popular sovereignty. While his test ultimately faced judicial scrutiny and reversal, Hand's contribution to the discourse on free speech remains influential, shaping subsequent interpretations of constitutional rights in the United States.

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