W. Wat Hopkins

The Supreme Court Defines the Marketplace of Ideas

The marketplace of ideas metaphor is the model most called upon by the U.S. Supreme Court in the resolution of free-expression cases. Justices have used the theory in the adjudication of virtually every area of First Amendment law, despite increasing attacks on the theory. For the most part, however, the Court does not recognize a single, universal marketplace of ideas, but numerous mini-marketplaces, each with its own dynamics, parameters, regulatory scheme, and audience.

Flag Desecration as Seditious Libel

Burning the American flag under certain conditions is regarded as protected political protest, as the 1989 U.S. Supreme Court ruling found in Texas v. Johnson. Justice William J. Brennan Jr., who wrote the majority opinion, found this act was political speech and therefore allowed. To find otherwise would be to sanction prosecution for seditious libel, long discarded in the United States. The Supreme Court a year later also overturned a Congressional attempt to prosecute flag desecration under any condition. This study summarizes attempts of state legislatures and lesser courts to deal with those who use the flag as part of an act of political protest.

Snyder V. Phelps and the Unfortunate Death of Intentional Infliction of Emotional Distress as a Speech-Based Tort

Beginning with New York Times Co. v. Sullivan and extending to Hustler Magazine v. Falwell and beyond, the Supreme Court of the United States established a reasonable balance between free speech interests and the rights of private persons not involved in matters of public debate from personal, verbal attacks. The framework for that protection was the tort of intentional infliction of emotional distress, which required plaintiffs to overcome an onerous burden of proof in order to prevail.In March 2011, however, the Court ruled in Snyder v. Phelps that the verbal attack of the Westboro Baptist Church against Albert Snyder during and after the funeral of Snyder’s son, a Marine killed in Iraq, was protected because it involved matters of public concern. In making its ruling, the Court ignored tort law precedent related to public and private figures and diverted the issue from intentional infliction of emotional distress to matters of public concert, even though the Snyder case involved no public debate. The Court, therefore, implemented a content-based test that had previously been eschewed, and in so doing all but eliminated intentional infliction of emotional distress as a speech-based tort.

Justice Brennan, Justice Harlan and New York Times co. v. Sullivan: A case study in supreme court decision making

New York Times Co. v. Sullivan is arguably the most important free speech case ever decided by the Supreme Court. This case, the Courts first substantive treatment of libel law, delineated a new approach toward the treatment of free speech. Because the Court attempts to present a unified front when it cuts broad swaths in the law, a unanimous or near‐unanimous opinion was very important in Times v. Sullivan.For a time in the deliberations, however, it appeared that Justice William Brennan would not win even a bare majority for his propositions. This article examines the deliberations in the case, providing not only a renewed understanding of the importance of Times v. Sullivan, but also giving a rare glimpse of how the Court operates and how process affects result.

Actual Malice: Twenty-Five Years after Times v. Sullivan

Preface The Libel Revolution New York Times Co. v. Sullivan Actual Malice Before Times Rule Common Law Actual Malice--Whos in the Majority? The Supreme Court Adopts Actual Malice The Supreme Court Applies Actual Malice Actual Malice After Times Rule Times Rule Actual Malice (Continued?) Bibliography Indexes