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.