New-York tribune., 1917-07-25
Mails Reopened
To" "The Masses"
By Judge Hand
Temporary Injunction Re-
strains Postmaster From
Barring Magazine

A temporary injunction was issued
yesterday by Judge Learned A. Hand,
of the United States District Court,
restraining Thomas G. Patten, Post
master of New York City, from exclud-
ing the August issue of "The Masses"
from the mails. Gilbert E. Roe, coun-
sci for the magazine, said last nignt
that he believed the copies OF lhe
Masses" now being held in the local
postofice would be Immediately start
ed on their way to subscribers.
Judge Hand held that the govern
ment had not shown sufficient reason
why "The Masses" should be barred
from the mails. In l0,OOO-word opin-
ion Judge Hand makes it very PLAIN
that his decision in nowise disputes the
constitutionality of the espionage act,
under the broad powers of which The
Masses" and sixteen other publications
were barred by Postmaster General
Burleson.
Judge Doesn't Defend Publication
Likewise he makes il plain that The
Masses" is not an extraordinary sue
cess as a promoter of pro-Americanlsnn,
saying:
"Publications of this. kind enervate
public feeling at home. which is their
chief purpose, and encourage the sue.
cess of the enemies of the United
States abroad, to whom they are gem
erally indifferent. Dissension within
country is a high source Of comfort
and assistance TO its enemies; the least
intimation of it they seize upon with
jubilation."
Concerning the four examples of text
and the four cartoons set forth by the
postmaster as proof of the charge that
the magazine was violating the espion-
age act, in that it "would cause insub-
ordination. disloyalty and refusal to
duty In the naval and military forces
Of the United States and obstruct the
recruiting and enlistment service OF
the United States" etc, Judge Hand
wrote:
at seems TO me quite plain that none
of the language and none OF the car
toons in this paper can be thought d.
rectly TO counsel or ADVISE insubordi-
nation or mutiny without violation
of their meaning quite beyond any tol-
erable understanding.
Power Of Congress Recognized
And with respect to the other alleged
violations of the espionage act. the
court held that they were, at the most,
expressions of opinion.
Regarding the power Of Congress and
the rights Of newspapers, Judge Hand
wrote:
at may be that Congress may forbid
the mails to any matter which tends to
discourage the successful prosecution
of the war. II may be that the funda-
mental personal rights of the individ-
uel must stand in allowance, even in
cluding the right of freedom of the
press, though that is not here in ques-
ton. II may be that the peril Of war.
which goes to the very existence of the
state, justifes any measure OF compul-
sion, any measure Of suppression, which
Congress deems necessary TO its safety,
the liberties Of each being in subjec-
tion to the liberties of all. II may be
that under the war power Congress can
mobilize every resource of men and ma
terials without impediment. or limita-
ton, since the power includes all means
which are the practice OF nations in the
war"
Doesn't Question Congress
Judge Hand added that he made these
remarks because it is important at the
present time that no implication may
arise upon the absolute and uncon-
trolled nature of the war power of
Congress.
81 make no question of the power OF
( Congress to establish a personal cen
sorship OF the press under the war
power That question, as 7 have al
ready said. does not arise. am quite
satisfied that it has not yet chosen to
| create one"