Constitution Day
ATT: Dinah Zeiger
JAMM - University of Idaho
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IV. The Masses Goes to Court

A. The Masses began publishing in 1911, founded by Dutch immigrant Piet Vlag, who envisioned a cooperatively published socialist monthly. Vlag soon left, but the idea had taken root among a group of artists and writers living in Greenwich Village who took over publication. Its articles and illustrations reflected the cultural turmoil of the early 20th century, driven by the massive shift of Americans from rural areas to the cities and the influx of immigrants as well as the push of new technologies, from telephones to cinema. Max Eastman, a PhD student at Columbia, was named editor by a group of artist-contributors, and he shaped the magazine into a left-leaning activist publication dedicated to reporting on labor struggles, Progressive reforms and women’s rights.

B. From the start, the magazine took an anti-militarist position. When war broke out in Europe in1917, it responded with bitter attacks on its causes, which it laid at the feet of greedy capitalists. Captioned cartoons became a favorite medium for skewering the fat imperialist bankers it blamed for the carnage. Eastman and his contributors railed against American intervention, and when the U.S. Congress passed the Espionage Act within weeks of declaring war on Germany in April 1917, The Masses began to subtly attack the war effort.

C. Its critiques of the draft, and how Americans were being manipulated into patriotic fervor, finally drew the attention of the U.S. Postmaster General, Albert S. Burleson. Citing the Espionage Act, he denied the magazine second-class mailing privileges. In November 1917, the editors of The Masses were indicted on charges of obstructing enlistment efforts necessary to the war effort.

D. Judge Learned Hand, a New York state Superior Court justice, wrote in his opinion:

i. “To assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.”

E. Judge Hand affirmed that if a citizen “stops short of urging upon others that it is their duty or their interest to resist the law,” then he or she is protected by the First Amendment. One may, for example, “admire” resistors of the draft, but may not, under the “incitement” test, “counsel or advice” someone to violate the law at a specific time and place.

Further Reading

"Life of the People” exhibition, Library of Congress

Cartoons from The Masses

“The Crayon was Mightier Than the Sword”

John Sayer, “Art and Politics, Dissent and Repression: The Masses Magazine versus the Government, 1917-1918” in The American Journal of Legal History 32:1 (Jan. 1988) 42-78.

For particulars on the case itself, its citation is: Masses Publishing Company v. Patten 244 Fed. 535 (1917).
A brief is available from eCaseBriefs.

Activity: Analyze a Cartoon

First, have students complete the Cartoon Evaluation Worksheet for the two cartoons from The Masses that were at the heart of the lawsuit. (

Cartoon Evaluation Worksheet from NIE

You could also direct them to a 1917 editorial cartoon responding to the Zimmerman telegram and ask them to analyze it.

This assignment requires students first to scour local newspapers for an issue that citizens are protesting. It could be anti-loitering rules at the mall; a traffic camera installed at an intersection to catch speeders; a graffiti ordinance. Have students collect articles about the issue of their choice. Ask them to reflect on how limiting expression (emphasize that this can be an online publication, as well as a print publication) affects how citizens respond to government decisions made about their issue.

Using insights gained from the worksheet analyzing The Masses cartoons, have students create an editorial cartoon concerning the issue in conflict.

You may want to have students work independently, although it also adapts well as a group activity.