Learned Hand’s Spirit of Liberty by Lincoln Caplan

 Eighty years ago, Americans embraced a new definition of their common faith. “The spirit of liberty,” a then little-known judge said, “is the spirit which is not too sure that it is right.”

 

On a spring Sunday, eighty years ago in Manhattan’s Central Park, a hundred and fifty thousand newly naturalized citizens gathered to recite the oath that they would “bear true faith and allegiance” to the United States. They made their declaration as part of a celebration of “I Am an American Day,” created by Congress to salute the blessings of citizenship. In attendance were almost a million and a half people, who heard speeches by an immigrant from Prussia, Senator Robert F. Wagner, and by the Greenwich Village-born son of immigrants from Italy, Mayor Fiorello LaGuardia.

Leading everyone in the Pledge of Allegiance, after brief remarks, was Judge Learned Hand, who was seventy-two and in his twentieth year on the U.S. Court of Appeals for the Second Circuit, in Manhattan. Until then, most Americans had never heard of him, though Hand was well known in legal circles. His remarks—barely five hundred words—turned him into a revered public figure.

Hand spoke in a mid-Atlantic accent, reflecting his upbringing in a family of lawyers and judges in Albany. You can hear him talking, in a hearty, singsong voice, at the end of a short Library of Congress recording made two years earlier, of him singing a Civil War ballad that he had learned as a boy. Hand’s remarks, titled “The Spirit of Liberty,” came a couple of weeks before June 6, 1944—D-Day and the beginning of the end of the Second World War in Europe. His subject was what the United States was fighting for in that global war—what it meant to be an American. (He did not, in addressing the new citizens in the park, acknowledge the Native Americans here first or the enslaved African Americans who hadn’t chosen to come here.)

He began:

We have gathered here to affirm a faith, a faith in a common purpose, a common conviction, a common devotion. Some of us have chosen America as the land of our adoption; the rest have come from those who did the same. For this reason we have some right to consider ourselves a picked group, a group of those who had the courage to break from the past and brave the dangers and the loneliness of a strange land. What was the object that nerved us, or those who went before us, to this choice? We sought liberty; freedom from oppression, freedom from want, freedom to be ourselves. This we then sought; this we now believe that we are by way of winning.

The heart of his message was this:

What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.

Hand’s remarks first drew attention in a Talk of the Town piece in this magazine, unsigned but written by Philip Hamburger, who had heard Hand’s speech broadcast live on WNYC. Hamburger relates how he went down to the courthouse on Foley Square to get a copy of the speech from Hand. He describes the judge as “a rugged, stocky man” with “bushy eyebrows,” who was pleased to hear that Hamburger liked his remarks. Hand had heard, he said, from only three or four other people. Reprints of the speech soon followed, in the Times Magazine, Life, and the Reader’s Digest. It drew exuberant praise, including a comparison, by the Virginia State Bar Association, to the “simplicity and beauty” of Abraham Lincoln’s Gettysburg Address.

To Gerald Gunther, an influential legal scholar who wrote a biography of Hand, the judge’s view of liberty traced back to “his commitment to the doubting spirit.” By disposition and philosophy, Hand rejected eternal truths, with, Gunther wrote, “a sense that his own uncertain, uncomfortable search was a legitimate stance.”

In 1917, as a district-court judge, Hand had expressed that spirit when he stopped New York City’s postmaster from banning The Masses magazine. That year, President Woodrow Wilson had signed the censorious, First World War-influenced Espionage Act, which had made mere criticism of the government a federal crime. In four cartoons, three articles, and a poem, the government alleged, The Masses had made false statements that interfered with America’s war efforts, caused insubordination in the military’s forces, and obstructed recruitment. Hand narrowed the meaning of the law by saying that Congress could not have intended it to be a broad prohibition against criticism of the government. That, he explained, would “disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.” Instead, he held, Congress must have intended to ban “direct incitement” to lawbreaking, which, he found, The Masses had not engaged in.

The Second Circuit soon reversed Hand’s decision, and the magazine went out of business. Hand was passed over for appointment to the Circuit, which went to a far less distinguished district-court judge (who was later convicted of obstructing justice and defrauding the United States, through a list of malefactions that included selling his vote in cases). Hand made it to the Second Circuit seven years later and, for a dozen years, served as its renowned chief judge.

 

Hand was convinced he was right in the Masses case and wanted American law to vindicate him. In June of 1918, by chance, Hand and Justice Oliver Wendell Holmes, Jr., met on a train from New York City to Boston, each headed to his summer home. They knew each other and sat down to talk.

To enlist Holmes in his cause, Hand steered the conversation toward a discussion of tolerance—of the need for judges to protect individuals’ free speech when the government suppressed dissent. Holmes pushed back with his well-known Darwinian view, saying that the majority, through the legislature, ruled. The depth of Hand’s conviction led him to follow up with a letter, Gunther recounts in his 1994 biography, which began a correspondence between them.

The badgering was remarkable because Holmes was “the most revered judge and legal philosopher in the land,” as Gunther writes, and Hand was then a little-known, self-doubting, recently passed-over district-court judge. More to the point, Holmes had no particular interest in free-speech values: free speech, Holmes wrote to Hand, “stands no differently than freedom from vaccination,” which the Supreme Court had recently rejected, with Holmes joining in. But he, like Hand, was by nature a skeptic: fatalistic and also doubting, he distrusted absolutes. That gave Hand something to work with.

 

During the following year and a half, Hand and others nudged Holmes, at the age of seventy-eight, to change his mind. (Thomas Healy, in “The Great Dissent,” relates the story in splendid detail.) They included Harold Laski, a young British political scientist; Zechariah Chafee, Jr., a young Harvard Law School professor; and Justice Louis D. Brandeis, Holmes’s good friend and trusted peer on the Court. With Laski’s encouragement, Holmes looked to John Stuart Mill’s “On Liberty” for a way of framing free speech’s purpose. If human judgment in seeking truth is fallible, Mill argued, then the best way to get at it is to take all opinions, even those held sacrosanct, and issue “a standing invitation to the whole world to prove them unfounded.”

At the time of Hand and Holmes’s correspondence, the Supreme Court had never ruled in favor of freedom of speech, and it wouldn’t for another dozen years. But in 1919, in a dissent in the case of Abrams v. U.S., Holmes put the Court on the path toward making freedom of speech one of the values that sets America apart. The Court’s majority affirmed a rule that the United States could punish words that had nothing more than a “bad tendency,” because they might cause a crime, obstruct justice, or otherwise harm the public. But Holmes’s dissent articulated the very different rule that eventually became American law: the government could not punish speech unless it produced or intended to produce “a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.” A half century later, in 1969, the Supreme Court finally adopted Hand’s test, calling it “incitement to imminent lawless action.”

Holmes didn’t go as far as Hand wanted him to: Hand focussed on a speaker’s words and whether they directed someone to break the law, Holmes on the words’ predictable consequences. But Holmes’s Abrams dissent was, like Hand’s argument for free speech, built on skepticism. Holmes wrote:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based on imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

A quarter century later in Central Park, Hand pared his, Holmes’s, and America’s faith in liberty down to a simple phrase: “The spirit which is not too sure that it is right.” Hand also translated that stance of humility into an active practice and turn of mind: “The spirit which seeks to understand the mind of other men and women.” Surprisingly but affectingly, for an agnostic who had set aside the God-fearing Calvinism of his mother, he linked the spirit of liberty to Christian grace and the tenets of charity. It is “the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”

 

Hand also warned about “the ruthless, the unbridled will.” The judge said, “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”

For many decades, the spirit of liberty endured—not easily or without conflict, with ebbs, flows, and doldrums, but sturdily enough. When Bill Clinton announced Stephen G. Breyer as his second pick for the Supreme Court, in 1994, he name-checked Hand, paraphrased his then half-century-old remarks, and said, of Breyer, “Here is someone touched by that spirit of liberty.” Invoking Hand’s view of the spirit of liberty was a safe choice—it was widely understood to be a crucial element of American democracy.

Today, that spirit is beat up. Transformations by a range of social forces have done the damage. Social-media platforms, which reward certainty, hysteria, and received wisdom, are what the Supreme Court calls “the modern public square.” The Court itself is “weaponizing the First Amendment,” as Justice Elena Kagan wrote in a 2018 dissent, using it to extend the rights of the powerful and infringe on those struggling for security and to be heard. A major example is the ruling in Citizens United, in 2010: on the premise that money is the same as speech, the Court unleashed a perpetual flood of campaign spending and further distorted the workings of democracy.

Public opinion is divided into increasingly belligerent fiefdoms, with marginal ability, let alone will, to weigh adversaries’ interests alongside their own. Free trade in ideas rarely takes place. “Free speech” is widely understood to be an entitlement of speakers, rather than a social function with a democratic purpose. People with competing views talk past one another or, worse, as has been happening on campuses, especially since last October, harangue, harass, and silence each other. It’s as if the speech itself is what matters, rather than its role in inspiring skepticism and shaping public opinion, which, as Hand wrote in his opinion in the Masses case, “is the final source of government in a democratic state.”

Hand closed his remarks on that day in 1944 by describing the spirit of liberty as “hidden in some form in the aspirations of us all.” Now that spirit is simply hidden. Ours is a land estranged from a crucial element of what it means to be American.