Masses Publishing Co. v. Patten

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Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), was a First Amendment case that addressed advocacy of law violation.

[edit] Background

In cases such as Abrams v. United States, 250 U.S. 616 (1919) and Gitlow v. New York, 268 U.S. 652 (1925) and others, the United States Supreme Court struggled to draw the line between politically unpopular speech and actual threats to national security. One federal case, Masses Publishing Co. v. Patten, decided by the U.S. District Court for the Southern District of New York in 1917, greatly influenced the Court’s eventual adoption of the “incitement test” for advocacy of law violation.

[edit] The Case

Decided by the United States District Court for the Southern District of New York in 1917.

In Masses Publishing Co. v. Patten, the U.S. District Court for the Southern District of New York evaluated a Federal law, the Espionage Act of 1917, which prohibited citizens from counseling or advising violation of the law. The Court found that the New York postmaster's refusal to allow circulation of an antiwar journal under the statute violated the First Amendment.

[edit] Opinion

Judge Learned Hand wrote for the majority:

“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 affirmed that if a citizen “stops short of urging upon others that it is their duty or their interest to resist the law,” then he or she is protected by the First Amendment. One may, for example, “admire” resistors of the draft, but may not, under the “incitement” test, “counsel or advice” someone to violate the law at a specific time and place.