The Future of Free Speech Law

By R. George Wright | Go to book overview

students, was not being significantly impaired in a constitutionally suspect way under the established school system.112

The case for only limited intervention by the courts into the operations of the public schools in student speech cases thus need not rely heavily on considerations of deference and comparative expertise. overruling the judgment of the relevant Topeka officials on the largely empirical matter of the development of the educational capacities of black students was not by itself thought to be hopelessly complex or illegitimate in Brown. It is not the commands of judicial deference, but the narrow legitimate scope of the free speech rights of public schoolchildren, that best justifies only infrequent judicial intervention in public school decisions regarding the rights of juveniles under the free speech clause. Under our substantial future free speech capacity impairment test, as outlined above, the courts may intervene to vindicate genuine deprivations of student free speech rights, while respecting the proper scope of discretion of democratically elected local educational authorities.


NOTES
1.
393 U.S. 503 ( 1969)
2.
Id. at 513 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)) (brackets in Tinker).
3.
The Court's most recent examinations of these broad issues have come in Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) and in Hazelwood School Dist. v. Kuhlmeier, 108 S. Ct. 562 ( 1988).
4.
Emerson, Toward A General Theory of the First Amendment, 72 Yale L.J.877, 879 ( 1963).
5.
Id.
6.
Levin, Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School, 95 Yale L.J. 1647, 1649 ( 1996).
7.
Garvey, Children and the First Amendment, 57 Tex. L. Rev.321, 338 ( 1979).
8.
Cf. id. at 347 (seeking to tie individuality to the possibility of defiance of authority).
9.
J. S. Mill, On Liberty 275 ( B. Wishy ed. 1959).

-123-

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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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