The Story of Masses Publishing Co. V. Patten: Judge Learned Hand, First Amendment Prophet
Arizona State University (ASU) - Sandra Day O'Connor College of Law
December 20, 2011
FIRST AMENDMENT STORIES, Richard Garnett and Andrew Koppelman, eds., Foundation Press, 2011
This chapter explores the historical, political and legal context of Masses Publishing Co. v. Patten, one of the few decisions that upheld the right to protest America’s involvement in World War I. Issued in the summer of 1917 by Learned Hand, then a young federal district court judge, Masses was quickly and emphatically reversed by the United States Court of Appeals. The chapter begins by examining the political and social conditions that underlay the hysterical reaction to anti-war protests and led to the conviction of over 1,000 anti-war protestors. It then analyzes the defects in the Supreme Court’s free speech doctrine that permitted this massive assault on free speech and democratic self-governance. The chapter concludes by demonstrating how Hand’s masterful opinion, though repudiated at the time, presciently anticipated several key themes in contemporary American free speech doctrine.
Number of Pages in PDF File: 37
Keywords: First Amendemt, Freedom of Speech, Democracy, Learned HandAccepted Paper Series
Date posted: December 18, 2011 ; Last revised: December 21, 2011
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