Learned Hand (1872–1961), one of the great federal court judges, had an immense impact on the debates over freedom of speech. More broadly, he influenced the debate on how to adjust law to the changing society in his day, while defining principles that inform constitutional and private law into the twenty-first century. Perhaps most important, in his many public lectures, he spoke eloquently on what it means to be an American, to be a judge, and to have individual rights in a democracy with a spirit of liberty at its core. Because of the long-term impact of his legal opinions, Hand has often been called the tenth justice of the Supreme Court. Scholars disagree only over what made him a great judge.
In 1909 President William Howard Taft appointed Learned Hand to federal district court; in 1924 President Calvin Coolidge elevated Hand to the Court of Appeals for the Second Circuit. Hand served as chief judge of that circuit court until his nominal retirement in 1951, but he continued to carry a heavy load as a senior judge until his death in 1961.
Like Justice Felix Frankfurter, who also studied with James Bradley Thayer at Harvard Law School, Hand believed that judges should be craftsmen of the law, not judicial activists. This meant that judges should explore underlying unanswered questions raised by conflicts in laws and legal principles, and create legal rules appropriate to changing times—as common law judges have always done. Except when a law violated the clear meaning of the Constitution, judges should neither reject the policy choices of legislatures, bureaucracies, or elected officials nor make policy themselves. Thus, in an influential 1908 article, Hand criticized conservative Supreme Court justices for their decision in Lochner v. New York, 198 U.S. 45 (1905), which declared unconstitutional a New York state law limiting maximum work hours. That case set in motion the Lochner era (1905–1937), during which much New Deal social and economic legislation was declared unconstitutional.
For the above reasons, Hand criticized Brown v. Board of Education (1954), which established that school segregation violated the Fourteenth Amendment equal protection clause. Hand wrote, “Whether the result would have been different if the interests involved had been economic, of course I cannot say, but there can be no doubt that at least as to” Personal Rights “the old doctrine seems to have been reasserted” (1958, 55).
In the 1958 Oliver Wendell Holmes Lectures at Harvard (published as Hand's The Bill of Rights), Hand criticized liberal justices on the Warren Court for greatly extending civil rights and civil liberties protections against state action through the Fourteenth Amendment incorporation of rights provisions in the Bill of Rights.. For Hand, the judge was not to make law but rather to apply laws and define legal principles in ways that allow private parties, institutions, and government to respond to these changes.
Scholars agree that Learned Hand was a great judge, an extraordinarily gifted public speaker and writer, a progressive of his day, and a man of humility and intellectual skepticism, who sought to ensure that private and public law would be able to meet the demands of a changing society. However, they differ as to which areas of doctrine are most significant to his legacy. Hand's official biographer, Gerald Gunther (1994), emphasizes that Hand's greatness lay in his unswerving commitment to free speech in an age when important First Amendment principles were being formulated. Throughout his career Judge Hand sought to expand the range of permissible expression within the confines of existing law. He bravely defended the rights of leftist dissenters during World War I and opposed McCarthyism some three-and-a half decades later.
Hand's most famous decision was the controversial Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917). As a federal district court judge, he argued that individuals must specifically, by word, incite actions considered illegal under law before they could be arrested for speech that was considered dangerous to government. This principle was in conflict with the then loosely applied clear-and-present-danger test that resulted in limitations on all criticism of the draft and World War I while the nation was at war.
Although the Second Circuit Court overturned Masses, many years later in Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court included Hand's “direct incitement” requirement (along with the “imminence” and the “likelihood” of lawless action) before the government could stop political speech and expressive action. The Brandenburg test remains the cornerstone of protecting the freedom of speech under the First Amendment.
Even though Hand was committed to free speech, had criticized Holmes' clear-and-present-danger standard, and advocated the direct incitement test in Masses, he refused to overturn the convictions of communists under the Smith Act on First Amendment grounds when the Dennis case came before his Court. The reason Gunther offered was that as a federal judge Hand felt duty-bound to apply principles set by the Supreme Court in prior subversive advocacy cases: the clear-and-presentdanger test. When he applied this test, Hand concluded that the speech and actions of the communists had met this test.
In contrast to Gunther, Richard A. Posner (1994) finds Hand's greatness as a judge in the fields of law that dominated federal court dockets in Hand's time: tort, antimonopoly, tax, and copyright law. In these areas Hand set the highest standards for judicial craftsmanship, clarity of expression, and analysis of complex data and facts to discern when law and legal principles had been violated.
When a quorum of Supreme Court justices could not be obtained in a critically important antitrust case, Congress reassigned the case to the Second Circuit. Hand's opinion in United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945), found that the defendant had monopolized the relevant market. This case became a landmark in antitrust law because Hand's opinion rejected “the rule of reason” that the Supreme Court had applied in antitrust cases since 1911. Hand ruled that evidence of greed or lust for power was not essential in finding wrongdoing: “Congress did not condone ‘good trusts’ and condemn ‘bad ones’; it forbade all” (148 F.2d at 427). Hand also is noted for inventing what became known as the “Hand formula,” an algebraic formula for deciding damage awards based on the degree of negligence. Both contributions were forerunners of the economic analysis of law, an approach the Court uses in many areas of private law cases.
Learned Hand was central to the development of American values and the incorporation of those values into the constitutional and private law that govern the nation in the twenty-first century. In his 1944 speech “The Spirit of Liberty,” delivered at a patriotic celebration in New York City's Central Park, Hand cautioned that, for the spirit of liberty to exist, judges and citizens must be wary of absolutes and critical of those who claim a monopoly on truth. Liberty depends on the free exchange of ideas, even ideas far afield of the prevailing wisdom. For the good of the nation, judges and citizens should be cautious, moderate, and skeptical; they should view life as complex and universal statements as slippery and perilous. Finally, Hand cautioned fellow judges to decide cases only after careful investigation and meticulous analysis, and to write eloquent and eminently readable opinions. Ultimately, because law takes places within a wider society, a judge's power is the power to persuade.
SEE ALSO Brown v. Board of Education; Freedom of Contract; Freedom of Speech: Advocacy in Times of Crisis; Judicial Review; New Deal Constitutional Revolution; US Bill of Rights.
Billings Learned Hand (1872–1961), who served as a federal district and appellate judge for more than fifty years, had enormous influence...
Learned Hand (1872–1961) was a federal appeals court judge noted for his brilliant legal acumen and incisive opinions, some of which involved the Fo
1872-1961 US judge and jurist Born in Albany, New York State, into a dynasty of New York judges, he graduated from Harvard University and its Law Sch