[People From The Past]
Judge Learned Hand
January 27, 1872 – August 18, 1961
“It serves as the most vital of all general interests: the dissemination of news from as many different sources, and with as many different facets and colors as possible. That interest is closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be folly; but we have staked upon it our all.” ~ Judge Learned Hand, as quoted during The Failing Newspaper Act congressional hearings of 1967 by Senator Philip A. Hart of Michigan.
DEFENDER OF THE FREE PRESS AND OF DISSENT
(I wanted to put something out about the honorable judge, so this below is adapted from Wikipedia Commons. ~Editor)
During World War One, Judge Learned Hand made his most memorable decision in 1917 in Masses Publishing Co. v. Patten. Congress had enacted an Espionage Act that made hindering the war effort a federal crime. The new law was quickly tested two weeks later when the New York City postmaster refused to deliver the August issue of The Masses, a self-described “revolutionary journal”. The edition contained drawings, cartoons, and articles critical of the government’s decision to go to war.
The publisher sought an injunction to prevent the ban, and the case came before Judge Hand. In July 1917, he ruled that the journal should not be barred from distribution through the mail. Though The Masses supported those who refused to serve in the forces, its text did not, in Hand’s view, tell readers that they must violate the law. Hand argued that suspect material should be judged on what he called an “incitement test”, only if its language directly urged readers to violate the law was it seditious. Otherwise freedom of speech should be protected.
This focus on the words themselves, rather than on their effect, was novel and daring. But Hand’s decision was promptly stayed, and later overturned on appeal.
He always maintained that his ruling had been correct. Between 1918 and 1919, he attempted to convince Supreme Court Justice Oliver Wendell Holmes, Jr., a man he greatly admired, of his argument. His efforts at first appeared fruitless, but Holmes’ dissenting opinion in Abrams v. United States in November 1919 urged greater protection of political speech.
Scholars have credited the critiques of Hand, Ernst Freund, Louis Brandeis, and Zechariah Chafee for the change in Holmes’s views. In the long-term, Hand’s decision proved a landmark in the history of free speech in the country. In Brandenburg v. Ohio (1969), the Supreme Court announced a standard for protecting free speech that in effect recognized his Masses opinion as law.
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