One hundred years ago, New York District Court Judge Learned Hand's ruling in Masses Publishing Co. v. Patten (1917)  helped establish a principle that is now widely recognized in First Amendment freedoms of speech and press -- the difference between speech that incites violence and speech of "political agitation."

Although Hand's decision in Masses was overturned by the Second U.S. Circuit Court of Appeals, it stands as testament to his attempt to maintain First Amendment freedoms during World War I.

At issue was a decision by the New York City postmaster — Thomas G. Patten — to suppress distribution of a magazine named Masses that he believed violated the Espionage Act of 1917 by encouraging resistance to the draft. Hand acknowledged that Congress had authority under its war powers to forbid use of the mails for materials that discouraged the successful prosecution of the war, but he thought that courts had to judge the legislation according to the standards that Congress set. Although the act had forbidden statements that were willfully false, Hand did not find that the publication at issue spread false rumors but that it expressed anti-war opinions that its authors sincerely believed.

The Masses decision influenced the Supreme Court’s ultimate adoption of the “incitement test” for advocacy of illegal activity in Bradenburg v. Ohio (1969). Hand is believed to have influenced decisions by Oliver Wendell Holmes Jr. and others in this area in a more liberal and tolerant direction.

Read more from our encyclopedia entry on Masses Publishing Co. v. Patten (1917).

Two events scheduled in New York to dive deep into the impact of the Masses case

From Ronald Collins:

On Nov. 6. the Second Circuit Court of Appeals, in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association, will host a “reargument” of the appeal in Masses Publishing Co. v. Patten, this on the occasion of the 100th anniversary of the case. The case will be argued before a panel of three judges:

Circuit Judge Reena Raggi,
Circuit Judge Pierre N. Leval, and
Circuit Judge Robert D. Sack

Second Circuit Chief Judge Robert Katzmann will introduce the event. Noted First Amendment lawyer Floyd Abrams will appear on behalf of Postmaster Patten (yes, he will represent the government) and Kathleen M. Sullivan (former Stanford Law dean and seasoned appellate litigator) will appear on behalf of Masses Publishing Co.

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Related Event: A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date & Locale: Friday, October 20, 2017 – New York University School of Law