The Future of Free Speech Law

By R. George Wright | Go to book overview

as though Flynt had stopped to inform Falwell that he had dropped his car keys or was, say, merely expressing annoyance over Falwell's reassigning him to a less prestigious job. Finding it difficult to categorize Flynt's speech as either public or private, the Court might have seen no point in applying the distinction.

The problem with this logic, however, is that the Court has implicitly adopted the wrong "default" setting. Even if the Court could not classify Flynt's speech as either public or nonpublic interest speech, it should not have effectively classified it as public interest speech by strongly constitutionalizing it. The Court should constitutionalize only such speech which it has affirmative reason, in light of basic free speech values, to protect. Speech that is not public interest speech, all else equal, should not be strongly constitutionalized because the "default" position, for unclassifiable speech, should be for the federal courts to respect the interest balancing inherent in state common law adjudication of tort claims, especially where a contrary approach may ultimately serve to degrade, rather than strengthen, the cultural institution of freedom of speech.


NOTES
1.
108 S. Ct. 876 ( 1988).
2.
Justice White filed an opinion concurring in the judgment in which he appeared to broadly reject Chief Justice Rehnquist's approach to the case, while leaving to a more propitious moment the task of suggesting why the First Amendment required Chief Justice Rehnquist's result. Id. at 883 ( White, J., concurring). Justice Kennedy had not joined the Court in time for argument and took no part in deciding the case.
3.
Id. at 882.
4.
Id. at 878.
5.
Id.
6.
Id.
7.
Id.
8.
For an analogy of intentional infliction of emotional distress to battery, see Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916

-50-

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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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