Masses Publishing Company v. Patten, 244 U.S. 535 (1917)

This case represents an early step in refining the circumstances under which the federal government might punish a person for publishing materials deemed to be likely to incite action against the government or its programs and activities. Because of concerns that antiwar activity would compromise U.S. efforts to pursue its objectives in World War I, Congress passed the Espionage Act of 1917 and subsequently extended its provisions with the Sedition Act of 1918. The law punished efforts to interfere with the armed forces or with the draft. It also authorized certain forms of censorship, including allowing banning from the mails, at the discretion of the postmaster general, of materials considered treasonous or seditious. A large number of prosecutions and convictions resulted from vigorous use of the law, and it ultimately was the basis for a number of groundbreaking court rulings on freedom of expression.

The issue that prompted the Masses suit was vigorous use of the law, and it ultimately was the basis for a number of groundbreaking Court rulings on freedom. It arose when the New York postmaster invoked provisions of the Espionage Act to refuse to distribute the radical magazine The Masses, which he described as ‘‘nonmailable.’’ Under the editorship of antiwar leftist Max Eastman, the Masses was described by its editorial staff as a ‘‘revolutionary’’ publication, often publishing material by such left-leaning authors as Big Bill Haywood, leader of the Industrial Workers of the World, and communist journalist John Reed. Postmaster Patten contended that the magazine’s contents, including articles and cartoons critical of U.S. participation in World War I, constituted a violation of all three clauses of Title I, Section 3, of the Espionage Act, which made it a crime to do anything to obstruct the war effort.

The magazine brought suit challenging the ban in the Federal District Court for the Southern District of New York, presided over by Judge Learned Hand. The judge granted the requested injunction against the postmaster. In so doing, he struck an early blow for protection of freedom of expression, although he did not base his decision on the First Amendment. Rather, Judge Hand rejected the postmaster’s interpretation of the law as punishing material that had a ‘‘bad tendency.’’ The judge acknowledged the validity of the postmaster’s contention that the law might well arouse unrest among the people, causing them to criticize the war effort and the draft, and to wish to follow the lead of well-known antiwar demonstrators. Yet, he refused to accept the contention that such action constituted obstruction of the war effort. Judge Hand was concerned with the vagueness inherent in the badtendency doctrine, contending that its lack of specificity in defining actions that were illegal would make it virtually impossible for alleged violators to defend themselves against the government’s charges. He contended that language should be deemed punishable only if it constituted direct advocacy of antiwar actions or direct interference with the draft.

Judge Hand’s decision did not win over other judges. A circuit judge stayed the injunction while rejecting the judge’s argument, and the full Second Circuit Court of Appeals reversed his opinion altogether. The judge changed course a few years later, becoming an advocate of the clear-and-present-danger test established by Justice Oliver Wendell Holmes, Jr., in his majority opinion in Schenck v. U.S., 249 U.S. 47 (1919).

Judge Hand’s opinion in Masses was significant because it rejected a blanket interpretation of the Espionage Act of 1917 to allow the government to punish any and all types of expression critical of the U.S. war effort in World War I. While Hand was willing to acknowledge that the government might restrict freedom of expression in wartime, he argued that the laws passed in so doing must be interpreted carefully so as not to be overbroad in their application. The decision reflects current thinking that freedom of speech should be interpreted to apply primarily to political speech and that the common law, rather than the First Amendment, should be regarded as its basis.

The judge’s decision in Masses, although an important early step in what would become a long and difficult process in defining the reach of free speech, was out of step with the prevailing judicial thinking at the time, which was reflected in a series of U.S. Supreme Court decisions upholding enforcement of the Espionage Act against antiwar activists. It was to be several decades before judicial thinking eventually devised a much broader definition of freedom of expression, a process that some scholars argue culminated with the Supreme Court’s decision in Brandenburg v. Ohio, 395 U. S. 444 (1969).

REBECCA S. SHOEMAKER

References and Further Reading

  • Gunther, Gerald, Learned Hand and the Origins of the Modern First Amendment: Some Fragments of History, Stanford Law Review 27 (1975): 719–773.
  • ———. Learned Hand: The Man and the Judge. New York: Knopf, 1994.

Cases and Statutes Cited

See also Bad Tendency Test; Brandenburg v. Ohio, 395 U.S. 444 (1969); Clear and Present Danger Test; Hand, (Billings) Learned; Holmes, Oliver Wendell, Jr.; Schenck v. United States, 249 U.S. 47 (1919)

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