Learned Hand - Federal Judge

Federal Judge

Hand served as a federal judge in the Southern District of New York from 1909 to 1924. He dealt with fields of common law, including torts, contracts, and copyright, and admiralty law. His initial unfamiliarity with some of these specialties, along with his limited courtroom experience, caused him anxiety at first. Most of Hand's early cases concerned bankruptcy issues, which he found tiresome, and patent law, which fascinated him.

Hand also made some important decisions in the area of free speech. A frequently cited 1913 decision was United States v. Kennerley, an obscenity case concerning Daniel Carson Goodman's Hagar Revelly, a social-hygiene novel about the "wiles of vice" that had caught the attention of the New York Society for the Suppression of Vice. Hand allowed the case to go forward on the basis of the Hicklin test, which stemmed back to a seminal English decision of 1868, Regina v. Hicklin. In his opinion, Hand recommended updating the law, arguing that the obscenity rule should not simply protect the most susceptible readers but should reflect community standards:

It seems hardly likely that we are even to-day so lukewarm in our interest in letters or serious discussion as to be content to reduce our treatment of sex to the standard of a child's library in the supposed interest of a salacious few, or that shame will for long prevent us from adequate portrayal of some of the most serious and beautiful sides of human nature.

Following his appointment as a judge, Hand became politically active in the cause of New Nationalism. With reservations, he supported Theodore Roosevelt's return to national politics in 1911. He approved of the former president's plans to legislate on behalf of the underprivileged and to control corporations, as well as of his campaign against the abuse of judicial power. Hand sought to influence Roosevelt's views on these subjects, both in person and in print, and wrote articles for Roosevelt's magazine The Outlook. His hopes of swaying Roosevelt were nonetheless often dashed. Roosevelt's poor grasp of legal issues particularly exasperated Hand.

Despite overwhelming support for Roosevelt in the primaries and polls, the Republicans renominated the incumbent President Taft. A furious Roosevelt bolted from the party to form the Progressive Party, nicknamed the "Bull Moose" movement. Most Republican progressives followed suit, including Hand. The splitting of the Republican vote, however, harmed both Roosevelt's and Taft's chances of winning the November 1912 presidential election. As Hand expected, Roosevelt lost to the Democratic Party's Woodrow Wilson, though he polled more votes than Taft.

Hand took the defeat in his stride. He saw the election merely as a first step in a reform campaign for "real national democracy". Though he had limited his public involvement in the election campaign, he now took part in planning a party structure. He also accepted the Progressive nomination for chief judge of New York Court of Appeals, then an elective position, in September 1913. He refused to campaign, however, and later admitted that "the thought of harassing the electorate was more than I could bear". His vow of silence affected his showing, and he received only 13% of the votes. Hand came to regret his candidacy: "I ought to have lain off, as I now view it; I was a judge and a judge has no business to mess into such things."

By 1916, Hand realized that the Progressive Party had no future, as the liberal policies of the Democratic government were making much of its program redundant. Roosevelt's decision not to stand in the 1916 presidential election dealt the party its death blow. Hand had already turned to an alternative political outlet in Herbert Croly's The New Republic, a liberal magazine he had helped launch in 1914. He wrote a series of unsigned articles for the magazine on issues of social reform and judicial power; his only signed article was "The Hope of the Minimum Wage", published in November 1916, which called for laws to protect the underprivileged. Hand often attended staff dinners and meetings and became a close friend of the gifted young editor Walter Lippmann. The outbreak of World War I had coincided with the founding of the magazine, whose pages often debated the events in Europe. The New Republic adopted a cautiously sympathetic stance towards the Allies which Hand supported wholeheartedly. After the United States entered the war in 1917, Hand considered leaving the bench to assist the war effort. Several possible war-related positions presented themselves. However, nothing came of them, aside from the chairing of a committee on intellectual property law that suggested treaty amendments for the Paris Peace Conference.

Hand made his most memorable decision of the war in 1917 in Masses Publishing Co. v. Patten. After the country joined the war, Congress had enacted an Espionage Act that made it a federal crime to hinder the war effort. The first test of the new law came two weeks later when the postmaster of New York City refused to deliver the August issue of The Masses, a self-described "revolutionary journal". The edition contained drawings, cartoons, and articles criticizing the government's decision to go to war.

The publishing company sought an injunction to prevent the ban, and the case came before Judge Hand. In July 1917, he ruled that the journal should not be barred from distribution through the mail. Though The Masses supported those who refused to serve in the forces, its text did not, in Hand's view, tell readers that they must violate the law. Hand argued that suspect material should be judged on what he called an "incitement test": only if its language directly urged readers to violate the law was it seditious—otherwise freedom of speech should be protected. This focus on the words themselves, rather than on their effect, was novel and daring; but Hand's decision was promptly stayed, and later overturned on appeal. He always maintained that his ruling had been correct. Between 1918 and 1919, he attempted to convince Supreme Court Justice Oliver Wendell Holmes, a man he greatly admired, of his argument. His efforts at first appeared fruitless, but Holmes' dissenting opinion in Abrams v. United States in November 1919 urged greater protection of political speech. Scholars have credited the critiques of Hand, Ernst Freund, Louis Brandeis, and Zechariah Chafee for the change in Holmes's views. In the long-term, Hand's decision proved a landmark in the history of free speech in the country. In the late 1960s, the Supreme Court announced a standard for protecting free speech that in effect recognized his Masses opinion as law.

Hand had known that ruling against the government might harm his prospects of promotion. By the time of the case, he was already the most senior judge of his district. The United States Court of Appeals for the Second Circuit often summoned him to sit with that court to hear appeals, a task he found stimulating. In 1917, he lobbied for promotion to the Second Circuit, but the unpopularity of his Masses decision and his reputation as a liberal stood against him. He was passed over in favor of Martin T. Manton.

In the final months of the war, Hand increasingly supported President Woodrow Wilson's post-war foreign policy objectives. He believed the United States should endorse the League of Nations and the Treaty of Versailles, despite their flaws. This position estranged him from Croly and others at The New Republic, who vehemently rejected both. Alienated from his old circle on the magazine and by the reactionary and isolationist mood of the country, Hand found himself politically homeless.