The Story of Masses Publishing Co. V. Patten: Judge Learned Hand, First Amendment Prophet

FIRST AMENDMENT STORIES, Richard Garnett and Andrew Koppelman, eds., Foundation Press, 2011

37 Pages Posted: 18 Dec 2011 Last revised: 21 Dec 2011

James Weinstein

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: December 20, 2011

Abstract

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.

Keywords: First Amendemt, Freedom of Speech, Democracy, Learned Hand

Suggested Citation

Weinstein, James, The Story of Masses Publishing Co. V. Patten: Judge Learned Hand, First Amendment Prophet (December 20, 2011). FIRST AMENDMENT STORIES, Richard Garnett and Andrew Koppelman, eds., Foundation Press, 2011. Available at SSRN: https://ssrn.com/abstract=1973812

James Weinstein (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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