With deference, I must dissent for two reasons.
First, in my view, the orderly administration of justice demands that the question whether the required jurisdictional amount is here present should be remanded to the District Court which made no substantive determination of this issue for the reason that it was unchallenged by the government in the lower court, Wolff v. Selective Service Local Board No. 16, 372 F.2d 817 (2d Cir. 1967).1 Once a finding is made, the substantive question can then be decided on further appeal.
But even should the District Court, based upon some such rationale as advanced by Judge Weinstein in Cortright v. Resor, 325 F.Supp. 797, 810 (E.D.N.Y. 1971),2 conclude that the requisite jurisdictional amount were present, I would have grave difficulty in agreeing for the reason that such a result is not in reality a finding of fact3 but, rather, an expression of judicial philosophy having the effect of judicially legislating a plain gap in the statutory jurisdiction of the federal courts. See Wolff at 372 F. 2d p. 826. Thus viewed, the chance of success on final hearing would be remote rather than extremely likely.
Although one’s personal belief may be that the right of free speech is inherent-
ly far more valuable than the question of jurisdictional amount, nevertheless, one cannot use that belief to expand the jurisdiction of the federal courts beyond that expressly authorized by Congress, Lynch v. Household Finance Corp., 405 U.S. 538, 547, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).
. At p. 826: “Because Judge McLean was of the opinion that this suit was not presently justiciable, he had no occasion to determine whether or not appellants could demonstrate the presence of the requisite amount in controversy. It is an unfortunate gap in the statutory jurisdiction of the federal courts that our ability to hear a suit of this nature depends on whether appellants can satisfactorily show injury in the amount of $10,000 but the fact remains and on remand the District Court must determine this question." (Emphasis added.)
. “Free speech is almost by definition worth more than $10,000.00.”
. Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir. 1970).