Introduction to Masses Publishing Co. v. Patten

By Ronald K.L. Collins

Judge Learned Hand (1872–1961) wrote two significant free speech opinions, one in 1917 as a federal district judge, and one in 1950 as a federal circuit judge. The first opinion was a statutory ruling affirming a free speech claim, while the second was a First Amendment opinion denying a free speech claim. The first opinion was reversed by a federal circuit court, while the United States Supreme Court affirmed the second. The first, Masses Publishing Co. v. Patten (244 F. 535 (S.D.N.Y. 1917)), brought Hand fame and became quite influential, while the other, United States v. Dennis (183 F.2d 201 (1950)), drew criticism and is relatively overlooked.

Judge Learned Hand (Library of Congress)

Judge Learned Hand (Library of Congress)

This year marks the 100th anniversary of Hand’s celebrated opinion in the Masses case. On October 20, 2017, New York University Law School and the Sandra Day O’Connor College of Law, Arizona State University will co-host a conference in New York to commemorate the occasion titled “A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten.” Additionally, the First Amendment Salon (in cooperation with the U.S. Court of Appeals for the Second Circuit and the New York Bar Association) is hosting a re-argument of the Masses case in the ceremonial chamber of the Thurgood Marshall Courthouse of the Second Circuit.

For all the fame it has garnered, few remember that Judge Hand’s erudite jurisprudential handiwork in Masses was first stayed by Circuit Judge Charles M. Hough’s order (245 F. 102 (1917)) and then reversed by the Court of Appeals for the Second Circuit (246 F. 24 (1917)) in an opinion by Judge Henry W. Rogers (1853–1926). For all of Judge Rogers’ scholarly credentials—he was president of Northwestern University (1890–1900) and then dean of Yale Law School (1903–1916)—his Masses opinion was lost to history, deservedly so, as was Judge Henry G. Ward’s concurrence.

Gilbert Roe (Library of Congress)

Gilbert Roe (Library of Congress)

Renowned civil liberties lawyer Gilbert Roe (1864–1929) argued on behalf of the Masses Publishing Company, while Francis G. Caffey (1868–1951) served as counsel for the government. Roe argued the case before Circuit Judges Rogers and Ward and District Judge Julius M. Mayer. The two lawyers were somewhat lost to history until Professor Eric Easton began researching his forthcoming book “Defending the Masses: A Progressive Lawyer’s Battles for Free Speech.”

In the documents that follow (posted online for the first time), you will be introduced to the arguments that shaped the Masses case at both the trial and appellate levels.

  • Why did the State argue that The Masses magazine would cause “insubordination, disloyalty, mutiny and refusal of duty in the naval and military forces of the United States and obstruct recruiting and enlistment service . . . to the injury of the Government during the present war”?
  • What did Roe (arguing for The Masses) mean when he wrote: “It may be that a war cannot be conducted in a democratic manner, but it is certainly true that a democratic people must decide whether they will conduct the war at all; upon what terms they will conduct it, and what the objects are upon the accomplishment of which they will make peace.” (Emphasis in original).
  • And why did Judge Rogers declare: “The policy of the government . . . has conformed to the [exciting laws]. But the fact that the policy of the government . . . has been adverse to limiting freedom of discussion affords little assistance in construing the particular [provisions of the Espionage Act] now under consideration.”
Max Easton (Library of Congress)

Max Eastman (Library of Congress)

The answers to these questions, and many others, are revealed in the documents that follow. Adriana Mark, head of research and education for the Second Circuit Library, unearthed these documents for us. The librarians at the Gallagher Library of the University of Washington School of Law provided additional research.

This research helped inform the arguments relating to the First Amendment Salon’s November 6, 2017 event, in which the Masses appeal will be reargued in the ceremonial courtroom of the Second Circuit. Circuit Judges Robert SackPierre Leval and Reena Raggi will consider the mock re-argument of the case. The appellate advocates in the mock trial are: Floyd Abrams on behalf of the Postmaster General and Kathleen Sullivan on behalf of The Masses. In important part, the event was made possible by the generous assistance of Chief Judge Robert Katzmann and the dedicated work of Lee Levine.

As with all the other postings in the First Amendment Library, our hope is that they will enhance the public’s appreciation for, and knowledge of, those freedoms set out in the First Amendment.


Secondary Document: 

Excerpt from Eric B. Easton’s forthcoming book “Defending the Masses – A Progressive Lawyer’s Battles for Free Speech”

Primary Documents: 

Masses Cover 1917

Masses Cover 1917