Masses Publishing Company v. Patten 244 Fed. 535 (1917)

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MASSES PUBLISHING COMPANY v. PATTEN 244 Fed. 535 (1917)

judge learned hand'sMasses opinion was one of the first federal opinions dealing with free speech. It remains influential even though Hand was reversed by the court of appeals and many years later himself abandoned his initial position. A postmaster had refused to accept the revolutionary monthly The Masses for mailing, citing the espionage act. Hand, sitting in a federal district court, interpreted the act not to apply to the magazine. He noted that any broad criticism of a government or its policies might hinder the war effort. Nevertheless, to suppress such criticism "would contradict the normal assumption of democratic government." Hand advanced a criminal incitement test. He conceded that words can be "the triggers of action" and, if they counseled violation of law, were not constitutionally protected. If, however, the words did not criminally incite and if the words stopped short "of urging upon others that it is their duty or their interest to resist the law … one should not be held to have attempted to cause its violation."

Hand's concentration on the advocacy content of the speech itself is thought by some to be more speech-protective than the clear and present danger rule's emphasis on the surrounding circumstances.

Martin Shapiro
(1986)