Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled

In his quite brilliant 1917 opinion in Masses Publishing Co v Patten,1 Judge Learned Hand set forth a novel interpretation of the Espionage Act of 19172 that has had enormous impact on our understanding of the First Amendment. In crafting this opinion, Judge Hand made clear that he was not holding the Act unconstitutional, but was merely construing it against the background of our longstanding commitment to the freedom of speech. Judge Hand adopted this approach in no small measure to deflect the vehemence of what he knew would be a harshly negative reaction to his decision. As a key step in his analysis, Judge Hand reasoned that -in light of our history, values, and tradition-it would be unwarranted to attribute to Congress an intention to enact a law that would have a broadly suppressive effect on free speech without an unequivocal statement of its purpose to that end. I have always assumed that this was merely a ploy to enable Judge Hand to cast his opinion in terms of statutory construction rather than constitutional compulsion, and that is certainly the conventional wisdom.3 On examination, however, it turns out, to my considerable surprise, that Judge Hand was right. Congress did not intend the Espionage Act to have the severely repressive effect attributed to it by the federal courts during World War I. This was a judicial, rather than a legislative, development. This sheds important new light not only on Judge Hand's opinion in Masses, but also on our understanding of Congress, the courts, and their respective roles in the evolution of one of the most repressive periods of American history.