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So to Speak podcast: Revisiting Masses v. Patten (1917)

By November 30, 2017

Masses Publishing Co. v. Patten (1917) might be the most important free speech case you’ve never heard of.

In his now largely forgotten decision in the case, then Southern District of New York Judge Learned Hand rejected the United States postmaster general’s arguments for refusing to mail Masses magazine. The magazine was staunchly opposed to World War I and the compulsory military draft. The postmaster general argued that the recently passed Espionage Act gave him the authority to deny the magazine’s circulation.

Judge Hand’s decision was among the first to breathe free speech principles and ideals into American law. Although it was a narrow, statutory decision, it would ultimately prove influential in expanding First Amendment protections at the Supreme Court  — protections that at the time were very limited.

On this episode of So to Speak: The Free Speech Podcast, we revisit Masses v. Patten with University of Washington School of Law Professor Ronald Collins and feature a reargument of the case (min. 40) at the United States Court of Appeals for the Second Circuit. One hundred years ago this month, that same court reversed Judge Hand’s decision.

The case was reargued in front of a panel of Second Circuit judges on Nov. 6, with former Stanford Law School Dean Kathleen Sullivan appearing for Masses Publishing Company and First Amendment attorney Floyd Abrams appearing for Postmaster Patten.

A video of the reargument can be found on FIRE’s YouTube page.

A special thanks to the Second Circuit for hosting the event and for providing us with its video and audio. The event was organized by the court in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Committee on Media Law of the New York State Bar Association.

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