The Future of Free Speech Law

By R. George Wright | Go to book overview

both of which involve allegations of organized crime associations. In Mutafis v. Erie Ins. Exchange,106 the speech at issue was an insurance company employee's placing a memorandum in internal company claim files stating that Mutafis was "associated with mafia very heavily."107 In Philadelphia Newspapers, Inc. v. Hepps,108 the speech was that of a Philadelphia newspaper that, in a series of articles, asserted that Hepps had ties to organized crime and used those ties to influence Pennsylvania state governmental processes.109

Both of these instances of alleged defamatory speech focus on organized crime. Organized crime is undoubtedly a matter of public interest and concern. Yet under the ready generalizability theory, the speech in Mutafis II is best categorized as easily non-MOPIC speech, and the speech in Hepps as easily on a MOPIC. Neither is a close case appropriate for the ready generalizability approach. Hepps involved wide dissemination of speech illuminating alleged corruption in state government. Any plausible theory one cares to enlist must find this to be speech on a matter of public interest. Mutafis II, however, involved speech that was not intended for circulation at any point to more than a handful of insiders, and the speech had no institutional point or implication other than to discourage unwarranted financial exposure by the insurance company in the case of a single individual.

It is possible to argue that if Mutafis II can somehow be seen as a close case and therefore appropriate for our theory, the defendants' speech in Mutafis II should be classified as on a matter of public interest based on our theory, as it would be costly or impractical for the speaker in Mutafis II either to circulate his thoughts more widely, as to competitors, or to expand his remarks into an essay on the insidiousness of organized crime. All of this analysis demonstrates that the case is in fact not close, because the institution of the confidential insurance files, in nature and purpose, is largely foreign to the service or exercise of our basic free speech values. The speaker may have bumped up against the speech-value enhancing limitations of the institution of the insurance company, but the confidential insurance company files, by their nature and purpose, have little to do with the aims underlying the free speech clause.110


CONCLUSION

This chapter has offered an illustration of a free

-207-

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The Future of Free Speech Law
Table of contents

Table of contents

  • Title Page iii
  • Copyright Acknowledgments v
  • Contents vii
  • Acknowledgments ix
  • Introduction xi
  • Note xiv
  • 1- Speech in the Constitutional Sense 1
  • Notes 23
  • 2- Hustler Magazine V. Falwell and The Hypertrophy of Free Speech Protection 33
  • Notes 50
  • 3- The Problem of Racist Speech 57
  • Introduction 57
  • Notes 83
  • 4- Free Speech and The Public School Student 95
  • Notes 123
  • 5- Fowler V. Board of Education: A Case Study in the Scope of Public School Teachers' Free Speech Rights 131
  • Introduction 131
  • Notes 148
  • 6 - Defining Obscenity: The Criterion of Value 153
  • Introduction 153
  • Notes 178
  • 7 - How to Decide Close Cases: An Illustration 185
  • Introduction 185
  • Conclusion 207
  • Notes 209
  • 8- The Pathological Complexity Of Free Speech Regulation 219
  • Notes 241
  • Conclusion: The Future of Freedom of Speech 255
  • Notes 263
  • Selected Bibliography 267
  • Index 269
  • About the Author 273
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