A Brief Halt to WW I Repression: “Masses v. Patten”
In the first months of U.S. involvement in World War I, as government repression of dissent intensified, U.S. District Court Judge Learned Hand struck down the Post Office’s denial of mailing privileges to The Masses, arguably the most prominent radical and anti-war magazine in the country.
Judge Hand wrote that “To assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.”
Judge Hand’s decision in Masses v. Patten represented a halt (albeit temporary) to the suppression of dissent. His decision was overturned by the 2nd Circuit Court of Appeals on November 2, 1917, and censorship of the press continued unabated.
In separate actions, Max Eastman and other editors of The Masses were twice prosecuted by the federal government under the Espionage Act, but never convicted. The Masses halted publication in late 1918, however.
Given the importance of this decision for freedom of speech and press, it is both sad and ironic that 34 years later, Hand’s opinion as a Circuit Court of Appeals judge became the basis of the Supreme Court’s decision, in Dennis v. United States on June 4, 1951, upholding the constitutionality of the Smith Act (enacted on June 29, 1940), which was a serious blow to the First Amendment.
Hand also delivered a celebrated speech on the Bill of Rights, “The Spirit of Liberty,” in the midst of World War II on May 21, 1944. His argument, however, was quite conservative. He argued that liberty “lies in the hearts of men and women,” implying that it is something inherent in peoples’ consciousness. This view gives no importance to the capacity of civil liberties advocacy and court decisions protecting civil liberties have the capacity to shape public attitudes in a pro-civil liberties direction.
Read about Judge Learned Hand at the First Amendment Encyclopedia here
Read a biography of Judge Learned Hand: Gerald Gunther, Learned Hand: The Man and the Judge (1994)
Learn more about Max Eastman: Christopher Irmscher, Max Eastman: A Life (2017)
Read all the issues of The Masses, including the offending one (NOTE: individual issues are slow to load; be patient): http://www.marxists.org/history/usa/pubs/masses/index.htm
Read about Postmaster General Burleson: https://tshaonline.org/handbook/online/articles/fbu38