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New book on forgotten LGBTQ+ First Amendment case — Rowland v. Mad River Local School District (1985) — FAN 354

“This case poses the open question of whether nondisruptive [public school teacher] speech ever can constitutionally serve as the basis for termination under the First Amendment.” — Justice William Brennan dissenting from denial of cert.
Margaret Nash and Karen Graves at Lewes Public Library in Delaware

When it comes to LGBTQ+ rights and free speech, the definitive work is Carlos A. Ball’s “The First Amendment and LGBT Equality: A Contentious History” (2017). In that comprehensive and illuminating book, one will find a discussion of a little-known case: Rowland v. Mad River Local School Dist., 410 U.S. 1009 (1985). That case, and the history behind it, are the focus of a just-released book by Margaret Nash and Karen L. Graves titled “Mad River, Marjorie Rowland, and the Quest for LGBTQ Teachers’ Rights” (Rutgers University Press). This book by professors Nash and Graves is the first in-depth treatment of the eye-opening story of Marjorie Rowland, the pioneer who fought for employment rights for LGBTQ+ educators and who paid a heavy price for that fight. 

What follows is excerpted (with permission) from “Mad River, Marjorie Rowland, and the Quest for LGBTQ Teachers’ Rights”:

Mad River Marjorie Rowland and the Quest for LGBTQ Teachers Rights

The Controversy

Marjorie Rowland began work as a counselor at Stebbins High School in Dayton, Ohio, in August 1974. In November, she told her secretary that two particular students did not need to have special permission to see her and that if Rowland was available, the secretary should allow either of those students to come in. The reason, Rowland disclosed in confidence, was that each of these students had come out to their parents as gay, the parents had not responded well, and the students needed support. The secretary peppered Rowland with questions, leading to Rowland saying that she was bisexual and was currently in love with a woman.” She was suspended from her nontenured position as a high school guidance counselor. In April 1975, the respondent School District acting through its School Board decided not to renew her contract.

[. . .]

By the time the Supreme Court had its next opportunity to weigh in on the matter of employment rights for gay and lesbian teachers, Justice Brennan was fed up with the court’s persistent refusal to consider the important constitutional questions at stake. In 1985 he issued a dissent in Rowland v. Mad River Local School Dist. that would provide an important foundation for legal breakthroughs in the future.” (footnotes omitted).

David Garrett, Margaret Nash, and Karen Graves at Lewes Public Library in Delaware
Left to right: David Garrett, Margaret Nash, and Karen Graves at Lewes Public Library in Delaware

Brennan (joined by Marshall) dissents from denial of cert.

Excerpts from Justice William Brennan’s dissent (joined by Justice Thurgood Marshall) from the Court’s denial of certiorari appear below:

That petitioner was discharged for her nondisruptive mention of her sexual preferences raises a substantial claim under the First Amendment. “For at least 15 years, it has been settled that a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v. Myers (1983). Nevertheless, Connick held that if “employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community,” disciplinary measures taken in response to such expression cannot be challenged under the First Amendment “absent the most unusual circumstances.” Id. The court below ruled that Connick requires the conclusion that a bisexual public employee constitutionally may be dismissed for “talking about it.” This conclusion does not result inevitably from Connick, and may be questioned on at least two grounds: first, because petitioner's speech did indeed “touch upon” a matter of public concern, see id., at 149, and second, because speech even if characterized as private is entitled to constitutional protection when it does not in any way interfere with the employer's business. 

William Brennan
Supreme Court Justice William Brennan

Connick recognized that some issues are “inherently of public concern,” citing “racial discrimination” as one example. Id. I think it impossible not to note that a similar public debate is currently ongoing regarding the rights of homosexuals. The fact of petitioner's bisexuality, once spoken, necessarily and ineluctably involved her in that debate. Speech that “touches upon” this explosive issue is no less deserving of constitutional attention than speech relating to more widely condemned forms of discrimination. 

Connick’s reference to “matters of public concern” does not suggest a strict rule that an employee's first statement related to a volatile issue of public concern must go unprotected, simply because it is the first statement in the public debate. Such a rule would reduce public employees to second-class speakers, for they would be prohibited from speaking until and unless others first bring an issue to public attention. Cf. Egger v. Phillips (CA7 1983) (en banc) (“[T]he unpopularity of the issue surely does not mean that a voice crying out in the wilderness is entitled to less protection than a voice with a large, receptive audience”). It is the topic of the speech at issue, and not whether a debate on that topic is yet ongoing, that Connick directed federal courts to examine.

[. . .]

Moreover, even if petitioner’s speech did not so obviously touch upon a matter of public concern, there remains a substantial constitutional question, reserved in Connick, whether it lies “totally beyond the protection of the First Amendment” given its nondisruptive character. The recognized goal of the Pickering-Connick rationale is to seek a “balance” between the interest of public employees in speaking freely and that of public employers in operating their workplaces without disruption. As the jury below found, however, the latter interest simply is not implicated in this case. In such circumstances, Connick does not require that the former interest still receive no constitutional protection. Connick, and, indeed, all our precedents in this area, addressed discipline taken against employees for statements that arguably had some disruptive effect in the workplace.

This case, however, involves no critical statements, but rather an entirely harmless mention of a fact about petitioner that apparently triggered certain prejudices held by her supervisors. Cf. Terminiello v. Chicago (1949). The Court carefully noted in Connick that it did “not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.” 461 U.S., at 154. This case poses the open question of whether nondisruptive speech ever can constitutionally serve as the basis for termination under the First Amendment.

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Timothy Zick annotates Trump v. CNN complaint

Timothy Zick William and Mary Law School
Professor Timothy Zick (William & Mary Law School)

Former President Donald Trump filed a $475 million defamation lawsuit against CNN arguing the network has maligned him with “fake news” for the purposes of damaging his political future heading into 2024.

The complaint filed Oct. 3 stated, “CNN has sought to use its massive influence – purportedly as a ‘trusted’ news source – to defame the Plaintiff in the minds of its viewers and readers for the purpose of defeating him politically, culminating in CNN claiming credit for ‘[getting] Trump out’ in the 2020 presidential election.”

First Amendment Watch asked First Amendment scholar Timothy Zick to annotate the 29-page lawsuit for the legal claims it made and the precedents it cited. 

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[In] Freeman v. Giuliani, decided today by Chief Judge Beryl Howell (D.D.C.); the court concluded that the facts as alleged by plaintiffs would, if proved, suffice to authorize liability—naturally, there's still question whether plaintiffs will introduce enough evidence to defeat an eventual motion for summary judgment and whether they will eventually persuade a jury (or whether the case will settle in light of that possibility). 

Elon Musk’s uninhibited Twittersphere

“Let her [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter? Her confuting is the best and surest suppressing.”John Milton (1644)

Elon Musk portrait
Elon Musk (Wikipedia)

“Three days after Elon Musk purchased Twitter, the billionaire posted a tweet that advanced baseless allegations about the recent attack on the husband of House Speaker Nancy Pelosi.” The New York Times (Oct. 30)

“Prominent conservatives share online disinformation about Paul Pelosi assault” Politico (Oct. 31)

“Use of N-word on Twitter jumped by almost 500% after Elon Musk's takeover” — Joshua Zitser & Sam Tabahriti (Oct. 29)

“Twitter obviously cannot become a free-for-all hellscape, where anything can be said with no consequences! In addition to adhering to the laws of the land, our platform must be warm and welcoming to all.” Elon Musk (Oct. 27)

Justice Barrett's book caught in censorial crosshairs

[fire_img_embed width='third' align='right' caption='Supreme Court Justice Amy Coney Barrett (Wikipedia)'][/fire_img_embed]

Supreme Court Justice Amy Coney Barrett
Supreme Court Justice Amy Coney Barrett (Wikipedia)

Over 500 literary figures have signed an open letter demanding Penguin Random House shut down a book deal with Supreme Court Justice Amy Coney Barrett valued at $2 million over her vote to overturn Roe v. Wade.

In the letter, the progressive signers claimed that while they “care deeply about freedom of speech” they also believe it is important for publishers to uphold their own dedication to the First Amendment with a “duty of care.”

“We recognize that harm is done to a democracy not only in the form of censorship, but also in the form of assault on inalienable human rights,” the letter states. “As such, we are calling on Penguin Random House to recognize its own history and corporate responsibility commitments by reevaluating its decision to move forward with publishing Supreme Court Justice Amy Coney Barrett’s forthcoming book.”

Forthcoming book: Barbas on NYT v. Sullivan

  • Samantha Barbas, “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan” (University of California Press, Feb. 21, 2023)
Actual Malice by Samantha Barbas

“A deeply researched legal drama that documents this landmark First Amendment ruling — one that is more critical and controversial than ever. 

Actual Malice tells the full story of New York Times v. Sullivan, the dramatic case that grew out of segregationists' attempts to quash reporting on the civil rights movement. In its landmark 1964 decision, the Supreme Court held that a public official must prove "actual malice" or reckless disregard of the truth to win a libel lawsuit, providing critical protections for free speech and freedom of the press.

Drawing on previously unexplored sources, including the archives of the New York Times Company and civil rights leaders, Samantha Barbas tracks the saga behind one of the most important First Amendment rulings in history. She situates the case within the turbulent 1960s and the history of the press, alongside striking portraits of the lawyers, officials, judges, activists, editors, and journalists who brought and defended the case. As the Sullivan doctrine faces growing controversy, Actual Malice reminds us of the stakes of the case that shaped American reporting and public discourse as we know it.

Related: Two of the author’s previous books

YouTube: Finan on Republicans and free speech

Podcast: Keith Whittington and Robert Post discuss the origins of U.S. free speech law

We the People with Jeffrey Rosen National Constitution Center

Jeffrey Rosen is joined by First Amendment experts Robert Post and Keith Whittington to discuss the origins of the First Amendment, its importance in American society, and several of the most important Supreme Court cases centering around free speech. Robert Post is a Sterling Professor of Law at Yale Law School and author of Citizens Divided: A Constitutional Theory of Campaign Finance Reform. Keith Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and the author of Speak Freely: Why Universities Must Defend Free Speech. 

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