''Masses Publishing Co. v. Patten'', 244 F. 535 ( S.D.N.Y. 1917), was a decision by the

United States District Court for the Southern District of New York The United States District Court for the Southern District of New York (in case citations, S.D.N.Y.) is a United States district court, federal trial court whose geographic jurisdiction encompasses eight counties of New York (state), New York ...

, that addressed advocacy of illegal activity under the

First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...

Background

In cases such as ''

Abrams v. United States ''Abrams v. United States'', 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offense to urge the curtailment of production of the mat ...

'', 250 U.S. 616 (1919) and ''

Gitlow v. New York ''Gitlow v. New York'', 268 U.S. 652 (1925), was a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, United States Supreme Court holding that the Fourteenth Amendment to the United S ...

'', 268 U.S. 652 (1925) and others, the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

struggled to draw the line between politically unpopular speech and actual threats to national security. ''Masses Publishing Co. v. Patten'' greatly influenced the Supreme Court's eventual adoption in ''

Brandenburg v. Ohio ''Brandenburg v. Ohio'', 395 U.S. 444 (1969), was a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that s ...

'' of the "incitement test" for advocacy of illegal activity. At issue in ''Masses Publishing Co. v. Patten'' was the federal

Espionage Act of 1917 The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War ...

, 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 the antiwar journal ''

The Masses ''The Masses'' was a graphically innovative magazine of socialist politics published monthly in the United States from 1911 until 1917, when federal prosecutors brought charges against its editors for conspiring to obstruct conscription. It was ...

'' under the statute violated the First Amendment.

Opinion

Learned Hand Billings Learned Hand ( ; January 27, 1872 – August 18, 1961) was an American jurist, lawyer, and judicial philosopher. He served as a federal trial judge on the U.S. District Court for the Southern District of New York from 1909 to 1924 a ...

wrote the opinion:

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 advise" someone to violate the law at a specific time and place.

Background

Opinion

See also