a.    The importance of this case is how Hand’s approach differed from Holmes’.  Hand’s approach focused solely on the content of the language of the speaker (not the surrounding circumstances of the speech) in light of a close textual reading of the Act. Only direct incitement could be punished consistent with the First Am., wile legitimate agitation could not.  Holmes’ “Clear and Present Danger” test focuses on the actual context and circumstances surrounding the speech.  The main significance of Hand’s test is that, unlike the “Clear and Present Danger” test, the likely effects of speech were completely irrelevant.  For example, a person who published a direct call to violate the law could be punished, even if this call was utterly ineffectual (whereas this may not pass “Clear and Present Danger” test).  In short, Hand’s test would punish the harmless inciter.

b.    Hand personally felt that the “Clear and Present Danger” (or “Bad Tendency” test) was too subjective.  He famously pronounced this in a famous letter to Holmes: “Speech that seems like an emergency today might not be an emergency [or fail the ‘Clear and Present Danger’ test] tomorrow.”

c.    Hand is closely interpreting the Act in Masses, and never once expressly mentions the First Am.  But one could easily argue that his discussion re free speech is in fact a meditation on the First Am.

d.    Hand’s opinion was unique because it was one of the very few that did not hold D’s liable for violating the Espionage Act and that did not apply the “bad tendency” test.

e.    The Second Circuit Court of Appeals reviewed Hand’s decision and overruled it.  Applying the “Bad Tendency” test, it held for D (the Postmaster).  The Second Circuit also held that speech which indirectly (not just directly) incited violence could be prohibited.  The Second Circuit cited Marc Antony’s famous funeral oration in “Julius Caesar” as evidence of indirect speech inciting violence.  In this oration, Marc pretended to praise Julius Caesar, but his speech had the intended opposite effect—the crowd grew furious at Julius Caesar.

f.    Hand subsequently abandoned his Masses test.  But many decades later, Brandenburg would incorporate the main aspects of the Masses test (though it would also add aspects of the “Clear and Present Danger” test as well).