Caseflicks

Court of Appeals for the Second Circuit • 1917

Masses Pub. Co. v. Patten

246 F. 24 | 1917 U.S. App. LEXIS 1313

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Takeaway

In short, the court upheld exclusion from the mail based on intended, indirect obstruction of recruiting, while leaving publication and other means of distribution untouched.

Background

The Postmaster General directed New York’s postmaster to exclude the August 1917 issue of The Masses from the mail under the Espionage Act. The issue contained articles praising opponents of the draft and cartoons criticizing conscription and the war. The publisher sought an injunction, arguing that losing mail access would nearly ruin its business.

The district court found no illegal matter in the issue and granted a preliminary injunction requiring its delivery. The postmaster appealed.

Issues

Issue #1

Whether the Espionage Act’s exclusion of prohibited publications from the mail violated freedom of the press or due process.

Holding

No. Congress could exclude the specified matter from the postal system without violating the First or Fifth Amendment.

Reasoning

Congress may decide what the federal postal system will carry. The Act did not forbid publication or transportation by other means; it withheld the use of the mail from material Congress had declared nonmailable.

The Postmaster General’s authority to make that determination without a prior judicial hearing did not itself deny due process. Administrative officials may exercise judgment in carrying out statutory duties, even when their decisions affect private interests.

Issue #2

Whether the Postmaster General could exclude this issue of The Masses as material willfully intended to obstruct recruiting or enlistment.

Holding

Yes. The court concluded that the issue was intended to obstruct recruiting and reversed the preliminary injunction.

Reasoning

The Act made publications violating its prohibitions nonmailable, including material willfully intended to obstruct recruiting or enlistment during wartime. Obstruction need not be physical, and an attempt to persuade readers need not explicitly tell them to break the law.

The articles portrayed draft resisters as heroic, while the cartoons depicted conscription and the war as oppressive and serving business interests. In the court’s view, their natural and reasonable effect supported an inference that they were meant to discourage service.

The court found no advocacy of treason, insurrection, or forcible resistance. It rested instead on intended obstruction of recruiting: the Postmaster General’s judgment was not clearly wrong, and the court independently found the requisite intent. Because the publisher had not overcome the presumption favoring his decision, the injunction could not stand.

Concurrences

Judge Ward

Reasoning

Ward agreed only on the recruiting-obstruction ground. He stressed that an indirect tendency to discourage enlistment was not enough without an intent to do so: honest arguments for peace or repeal of conscription remained protected, and the Postmaster General could not exclude them through a mistake about the statute’s reach.