The Future of Free Speech Law

By R. George Wright | Go to book overview

5
Fowler v. Board of Education :
A Case Study in the Scope of Public
School Teachers' Free Speech Rights

INTRODUCTION

On its distinctive facts, Fowler v. Board of Education of Lincoln County, Kentucky1 is ideally suited for examining some of the deeper issues associated with the in-school speech of public high school teachers in particular and with free speech law in general. In light of its facts and the prior case law, it is hardly surprising that Fowler evoked three separate and distinct responses from the Sixth Circuit panel deciding the case. This chapter, through a shift in the formulation of the precise issues presented, presents a fourth approach. The justification for this apparently perverse multiplication of complexity is simply that it allows us to see the virtues and limitations of each of the three approaches taken by the Sixth Circuit.

To begin by temporarily oversimplifying, Fowler involved a tenured public high school teacher who was subjected to the sanction of dismissal after a school board hearing because she had shown a popular "R" rated movie on a noninstructional day to her morning and afternoon class of fourteen-to seventeen-year-old students, while exercising only desultory attempts to edit the video portion of the movie.2

At the federal court trial on her wrongful discharge claim, the teacher, Jacqueline.3 Fowler, was awarded reinstatement and money damages. On appeal to the Sixth Circuit, her judgment was vacated and her claim dismissed.4 No single approach commanded a majority of the Sixth Circuit panel. To oversimplify the law as much as the facts, Judge Milburn concluded

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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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