Brief Fact Summary. This World War One case decided by Judge Learned Hand held that Plaintiff, Masses Publishing Co’s (Plaintiff), magazine company did not violate the Espionage Act of 1917 (the Act) by publishing text and cartoons critical of the war.
Synopsis of Rule of Law. Words that counsel or advise a man to act and thereby urge upon him that it is his interest or duty to act are punishable.
Words are not only the keys of persuasion, but the triggers of action, and those which have no purport but to counsel the violation of law cannot by any latitude of interpretation be a part of that public opinion which is the final source of government in a democratic state.View Full Point of Law
Issue. Whether Plaintiff violated Section:3 of title 1 of the Act, which states that no one shall make false statements with the intent to interfere with the operation or success of the military or naval forces of the United States or promote the success of its enemies?
Whether Plaintiff violated the provision of the Act, which forbids anyone from willfully causing insubordination, disloyalty, or refusal of duty in the military or naval forded of the United States?
Whether Plaintiff violated the provision of the Act which forbids any willful obstruction of the recruiting or enlistment in service for the United States?
Held. No. Dissension within a country is a high source of comfort and assistance to its enemies. However, the articles and cartoons are all within the range of opinion and of criticism. They fall within the scope of that right to criticize either by temperate reasoning, or by immoderate and indecent invective, which is normally the privilege of the individual in countries dependent on free expression of opinion as the ultimate authority.
No. To interpret the word “cause” so broadly would suppress all hostile criticism. Only the clearest expression of such power justifies the conclusion that it was intended.
No. Plaintiff’s text and cartoons do not satisfy the test requiring the counseling or advising of a man to act.
Discussion. Hand’s test focuses less on forecasts about the likelihood that the speech will produce danger and focuses more on the speaker’s words.