Masses Publishing Co. v. Patten

244 Fed. 535 (S.D.N.Y. 1917)

The Masses was graphically innovative socialist magazine. After the postmaster of New York refused to accept the publication in the mails (based on the 1917 Espionage Act), the magazine’s publisher sought an injunction in federal court. Judge Learned Hand, then sitting in the Southern District, granted the injunction.

Although Hand’s opinion purported only to interpret the Espionage Act, he effectively expounded on First Amendment principles. He rejected the dominant “bad tendency” understanding and pressed the view that only meaningful incitement could deprive speech of First Amendment protection. (“That such comments have a tendency to arouse emulation in others is clear enough but that they counsel others to follow these examples is not so plain… unless there is here some advocacy of such emulation, I cannot see how the passages can be said to fall within the [Espionage Act].”).

Hand’s opinion was quickly reversed by the Second Circuit. However, his opinion was very influential and I have thus visualized Masses as the first case in the “incitement/imminent” line. This presses the argument that Holmes was directly influenced by Hand as he came to change his position on the First Amendment in Abrams and subsequent cases. See Sullivan & Feldman, p. 24, n. 3 (citing work of Gerald Gunther).

USEFUL LINKS

Opinion text via Ericejohnson.com

Wikipedia Entry on Masses (discussion of content; great reproductions of original images)