Learned Hand, Judge in Rare World War I Free Speech Victory, Dies at Age 89
Learned Hand, who as a federal judge, issued one of the rare decisions affirming freedom of speech in World War I, died on this day.
Soon after the U.S. entered World War I on April 6, 1917, a wave of patriotic fever and repression swept the country. The U.S. Post Office ruthlessly suppressed all anti-war publications, barring them from the mails. The Masses, a radical pro-labor, pro-women’s suffrage, and pro-civil rights magazine before the war, was one of the most vocal opponents of the war in 1917. The Post Office suppressed the magazine on July 7, 1917, and the editors immediately challenged the ban.
On July 24, 1917, Judge Learned Hand, a U.S. District Court judge in New York, overturned the ban in a strongly-worded defense of freedom of speech. The decision was one of only a handful of decisions upholding freedom of speech for anti-war views during the entire war. Hand’s views in Masses v. Patten anticipated the U.S. Supreme Court’s decisions by several decades. Unfortunately, the Second Circuit Court of Appeals overturned Hand’s decision on November 2, 1917.
Three decades later, Hand had become more conservative in his views. In one of the most important cases during the Cold War, the government convicted the top leaders of the Communist Party under the Smith Act, which made it a crime to advocate the violent overthrow of the government. Judge Hand heard the appeal of the case, and his rationale regarding the First Amendment and the clear and present danger test became the cornerstone of the Supreme Court’s decision in Dennis v. United States (1951) upholding the convictions of the Communist Party leaders. The decision was one of the most serious defeats for freedom of speech in the history of the Supreme Court.
Hand 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 a biography of Hand: Gerald Gunther, Learned Hand: The Man and the Judge (1994)
Learn more about Hand at the First Amendment Encyclopedia here
Read: Michael R. Belknap, Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties (1977)
Learn more about the Smith Act and its history: http://constitution.findlaw.com/amendment1/annotation13.html