Document Type

Article

Publication Title

Arizona State Law Journal

Abstract

I come both to praise and, metaphorically, to bury Learned Hand. I want to explore a riddle that has long perplexed me—how could the same intellectually-gifted judge—Billings Learned Hand—have written the remarkable and courageous 1917 District Court opinion in the Masses, enjoining the Postmaster General from banning an irreverent, radical, fervently anti-war Socialist journal from the mails at the height of World War I—an opinion that paved the intellectual path to the modern First Amendment’s understanding of the intimate relationship between democracy and vigorous judicial protection of free speech; and, thirty-three years later, have authored the chillingly depressing 1950 Second Circuit opinion in United States v. Dennis affirming the Smith Act convictions and imprisonment of the leadership of the American Communist Party for the crime of being the leadership of the American Communist Party—an opinion that opened the gates for a relentless Cold War assault on dissent under McCarthyism.

First Page

831

Volume

50

Publication Date

2018

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