HAND, BILLINGS LEARNED
Learned Hand served as a U.S. district court judge from 1909 to 1924 and on the U.S. Circuit Court of Appeals from 1924 to 1951. Although he was a great and respected legal figure, he was
never appointed to the U.S. Supreme Court.
Hand cannot be classified as a liberal or con-
servative because he did not allow his personal
biases to affect his judicial positions. He was
careful to base his decisions on public policy and
laws as he understood them, and he did not
believe it was the court’s job to create public policy. To Hand’s way of thinking, human values are relative. Although one value—such as pro-
tecting young people from obscenity—may pre-
vail in a certain case, it might not prevail in
another. And he felt that the role of court deci-
sions should be to provide realistic guidelines on
which to base future decisions.
Hand was born January 27, 1872, in Albany, New York. His was a distinguished family, with
both his grandfather and his father being
lawyers and Democrats. He was an only child,
and his father died when he was fourteen. Hand
attended private schools and graduated with
honors and a degree in philosophy from Har-
vard in 1893. He graduated from Harvard Law
School with honors in 1896. A year later he
began practicing law in the state of New York.
In 1902 Hand married Frances A. Fincke and
moved to New York City. Although successful,
he found law practice to be boring. In 1909
newly elected president WILLIAM HOWARD TAFT
appointed Hand to a federal judgeship. At age
thirty-seven, Hand was one of the youngest
appointees ever.He served the court for 15 years.
A few years after his appointment, Hand
supported THEODORE ROOSEVELT’s Bull Moose
party presidential candidacy against Taft and
became the Progressive party’s candidate for
chief judge of the New York Court of Appeals.
He undertook this first and last political venture
of his career because of a concern that big busi-
ness would control the nation.Whatever Hand’s
reasons, Taft never forgot Hand’s “disloyalty,”
and many believe that this act cost Hand his first
chance to serve on the Supreme Court in 1922.
Taft, who was then the chief justice of the U.S.
Supreme Court, urged President WARREN G.
HARDING not to nominate Hand.
Throughout his career,Hand chose to follow
his conscience while knowing he would forfeit
promotions as a result. For example, in 1917
Hand decided Masses Publishing Co. v. Patten,
244 F. 535 (S.D.N.Y. 1917), rev’d 246 F. 24 (2d
Cir. 1917).Masses was the first test of a new law,
the ESPIONAGE ACT OF 1917 (Act of June 15,
1917, ch. 30, 40 Stat. 217). This act outlawed
making “false statements with intent to interfere
with the operation or success of the military or
naval forces . . . when the United States is at war.”
It also allowed the U.S. mail to ban materials
containing such statements. Editors of an anti-
war magazine, The Masses, took the New York
City postmaster, Thomas G. Patten, to court for
refusing to distribute the magazine. Patten
argued that the Espionage Act allowed him to
ban the publication.
The Masses case came before the Second
District at the beginning of WORLD WAR I, when
the government viewed criticism of the war as a
threat to national security. It came also when
Hand was being considered for appointment to
the Second Circuit Court of Appeals.
At that time, the legality of written or spo-
ken words was usually judged by the probable
result of the words—that is, if the words had the
tendency to produce unlawful conduct, then
they could be banned. Hand took a different
approach: his solution focused on the words
themselves, rather than on a guess at the public’s
reaction to them. He invented what became
known as the incitement test: if the words told
someone to break the law, if they instructed the
