Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled

IF 1.9 2区 社会学 Q1 LAW University of Chicago Law Review Pub Date : 2003-01-01 DOI:10.2307/1600562
G. Stone
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引用次数: 6

Abstract

In his quite brilliant 1917 opinion in Masses Publishing Co v Patten,1 Judge Learned Hand set forth a novel interpretation of the Espionage Act of 19172 that has had enormous impact on our understanding of the First Amendment. In crafting this opinion, Judge Hand made clear that he was not holding the Act unconstitutional, but was merely construing it against the background of our longstanding commitment to the freedom of speech. Judge Hand adopted this approach in no small measure to deflect the vehemence of what he knew would be a harshly negative reaction to his decision. As a key step in his analysis, Judge Hand reasoned that -in light of our history, values, and tradition-it would be unwarranted to attribute to Congress an intention to enact a law that would have a broadly suppressive effect on free speech without an unequivocal statement of its purpose to that end. I have always assumed that this was merely a ploy to enable Judge Hand to cast his opinion in terms of statutory construction rather than constitutional compulsion, and that is certainly the conventional wisdom.3 On examination, however, it turns out, to my considerable surprise, that Judge Hand was right. Congress did not intend the Espionage Act to have the severely repressive effect attributed to it by the federal courts during World War I. This was a judicial, rather than a legislative, development. This sheds important new light not only on Judge Hand's opinion in Masses, but also on our understanding of Congress, the courts, and their respective roles in the evolution of one of the most repressive periods of American history.
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汉德法官和1917年的间谍法案:一个谜的解开
在1917年的大众出版公司诉帕滕案中,汉德法官对172年的《反间谍法》提出了一种新颖的解释,对我们对宪法第一修正案的理解产生了巨大的影响。在起草这一意见时,汉德法官明确表示,他并不认为该法案违宪,而只是在我们对言论自由的长期承诺的背景下对其进行解释。汉德法官采用这种方式,在很大程度上是为了转移人们对他的决定的强烈负面反应。作为他分析的关键一步,汉德法官推断,鉴于我们的历史、价值观和传统,将国会意图制定一项对言论自由具有广泛压制作用的法律,而没有明确的目的声明,这是没有根据的。我一直认为这只是一种策略,使汉德法官能够从法律解释而不是宪法强制的角度来表达他的意见,这当然是传统的智慧然而,经过调查,令我相当惊讶的是,汉德法官是对的。国会并不打算让《间谍法》像第一次世界大战期间的联邦法院那样,产生严重的压制作用。这是司法上的发展,而不是立法上的发展。这不仅为汉德法官在《大众》中的观点提供了重要的新视角,也为我们对国会、法院以及它们各自在美国历史上最压抑的时期之一的演变中所扮演的角色的理解提供了新的视角。
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来源期刊
CiteScore
2.40
自引率
5.00%
发文量
2
期刊介绍: The University of Chicago Law Review is a quarterly journal of legal scholarship. Often cited in Supreme Court and other court opinions, as well as in other scholarly works, it is among the most influential journals in the field. Students have full responsibility for editing and publishing the Law Review; they also contribute original scholarship of their own. The Law Review"s editorial board selects all pieces for publication and, with the assistance of staff members, performs substantive and technical edits on each of these pieces prior to publication.
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