FAN 170 (First Amendment News) Masses case “reargued” in 2nd Circuit — Floyd Abrams vs Kathleen Sullivan

What follows is a short article by Professor Thomas Healy based on a “reargument” of Masses Publishing Co. v. Patten (2nd Cir., 1917), which overruled Judge Learned Hand’s district court opinion.

The event was hosted by the Second Circuit Court of Appeals in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association. 

Second Circuit Chief Judge Robert Katzmann introduced the event. Noted First Amendment lawyer Floyd Abrams appeared on behalf of Postmaster Patten and Kathleen Sullivan (former Stanford Law dean and seasoned appellate litigator) appeared on behalf of the Masses Publishing Co.

The case was argued before Circuit Judges 

Professor Healy, who attened the “reargument,” kindly offered this article for the benefit of FAN readers.  

→ A video of the oral arguments can be found here on the online First Amendment Library.

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Prof. Thomas Healy (credit: Sean Sime)

If It Please the Court

“I’m the force of darkness tonight,” said Floyd Abrams in the lobby of the federal courthouse in Manhattan last week. It was an unfamiliar role for Abrams, the eminent First Amendment attorney who has spent his career defending the forces of enlightenment. But tonight, the script was flipped. Abrams was appearing for the government in a “reargument” of a landmark free speech case decided a hundred years ago, during World War I.

Judge Learned Hand

The post office had banned from the mail a radical magazine called The Masses because of its criticism of the war, and Judge Learned Hand had bravely ruled in the magazine’s favor. His colleagues on the appeals court had been less valiant, reversing his opinion and emboldening the Justice Department to arrest nearly two thousand people under the Espionage Act. Now, in a bit of historical reimagining, a panel of three current appeals judges had gathered to see if they could do better, and Abrams was given the task of arguing the government’s case.

His strategy quickly became clear. “I would urge the court to keep two things in mind,” he began. “First, we are at war – over five million soldiers have died and over forty million soldiers and civilians have died or been wounded.”

“Does the right of dissension become a casualty of war?” Judge Denny Chin broke in. “I wouldn’t say a casualty,” replied Abrams, “but that circumstance has to be taken into account.”

“What about the war on terror, where it’s been going on forever?” Chin asked, jumping ahead of the story. “If war became the rule and not the exception, we might as well just have one standard,” said Abrams. But this was World War I, he reminded the judges – a defined war, with defined enemies. “There were enormous casualties occurring, enormous turmoil on the streets.”

Abrams is eighty-one years old, with a fringe of white hair and an easy, avuncular style. He doesn’t spar with judges or overwhelm them with facts. He chats casually with them until they are lulled into a state of acquiescence. It was happening already.

“Isn’t the law in your favor here in 1917?” asked Judge Pierre Leval.

“I’m ready to sit down,” Abrams offered.

“You’re here to persuade us,” Leval responded.

“I’m starting out ahead of the game, I think.”

His adversary, Kathleen Sullivan, had some catching up to do. The former dean of Stanford Law School, Sullivan tried to turn the discussion from war to democracy. That had been Hand’s approach in his Masses opinion. Conceding the government’s power to prosecute the war, he had argued that the Espionage Act should be read narrowly in light of “the normal assumption of democratic government that the suppression of hostile criticism does not turn upon the justice of its substance or the decency and propriety of its temper.” Hand had risked his reputation in writing those words, and he fell into despair when the appeals court reversed him. Later, he blamed the decision for his failure to reach the Supreme Court.

Floyd Abrams & Kathleen Sullivan in front of bust of Judge Learned Hand.

Sullivan was here to vindicate him. The courtroom was filled with free speech lawyers, scholars, and enthusiasts. A bust of Hand looked on. “We do not in our First Amendment tradition allow people to be punished or silenced because they have brought the government into odium,” Sullivan told the judges.

“What about during war?” Chin asked, picking up where Abrams had left off.

“I don’t question the power of Congress to limit activities, including speech, that threaten the war effort,” Sullivan replied. But The Masses had been blocked from the mails for publishing cartoons and poems that posed no imminent danger. “I should win easily,” she added.

Afterward, the judges reflected on the significance of the Masses case and the expansion of free speech rights over the past century. No decision was issued, but Judge Leval seemed to speak for the court when he expressed some doubt about Hand’s ruling. “It’s a very sly opinion,” he noted. “Hand knew perfectly well there was no precedent supporting it.”

Sullivan was gracious in imaginary defeat. She walked over to Abrams and extended her hand, which he kissed. Soon he was surrounded by admirers, who marveled at his ability to switch sides so effortlessly and adopt the position of his nemesis.

“How did it feel?” an observer wanted to know.

“It was liberating.”

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→ Related Event: A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

→ Related Forthcoming Book: Eric Easton, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech

Related book: Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America (2013)

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