The opinion
MERRITT, Circuit Judge,
dissenting.
Federal judges and local school boards do not make good movie critics or good censors of movie content. What one judge *669 sees as “gross and bizarre, another may find, as did District Judge Scott Reed below, mild and not very “sexually suggestive.”
The movie here seems to me to present a message similar to that expounded by Dr. Spock: abuse of sex and drugs as well as various forms of mental instability and anti-social conduct are associated with an overly authoritarian society. The message is that unloving, overly rigid and authoritarian parents, teachers, judges and officials create disturbed individuals and societies. This lack of love is the figurative “wall” shown in the movie.
But whatever the meaning of the movie, however good or bad it may be, my main concern is that the holdings of both Judge Milburn and Judge Peck are in error. Judge Milburn makes a distinction between “academic freedom” and showing a movie in class:
We do not intimate that a teacher is entitled to the protection of the First Amendment only when teaching. However, the fact that Fowler’s conduct was unrelated to the educational process does remove it from the protection afforded by the concept of academic freedom.
Opinion of Judge Milburn at p. 663 n. 6 (emphasis added) (citations omitted). Judge Milburn states further that “plaintiff’s conduct in having the movie shown cannot be considered expressive or commu-nicative_” Id. at p. 664.
Purely expressive works — songs, movies and books of entertainment value only— are protected by the First Amendment just like works of moral philosophy. See Schad v. Mt. Ephraim, 452 U.S. 61, 65-66 , 101 S.Ct. 2176, 2181 , 68 L.Ed.2d 671 (1981) (entertainment protected same as political or ideological speech); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578 , 97 S.Ct. 2849, 2859 , 53 L.Ed.2d 965 (1977) (“no doubt that entertainment ... enjoys First Amendment protection”). See also Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 , 97 S.Ct. 1782, 1797 , 52 L.Ed.2d 261 (1977) (“But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters — to take a nonex-haustive list of labels — is not entitled to full First Amendment protection.”).
In fact, Mrs. Fowler was not discharged because she entertained her students: she was discharged because the school board did not like the content of the movie. Mrs. Fowler proved at trial, as Judge Milburn says at page 660 of his opinion, that she was discharged because the board members regarded the movie as “immoral, an-tieducation, antifamily, antijudiciary, and antipolice.” There is no support for the proposition — nor does the school board argue— that a teacher’s academic freedom or a student’s right to hear may be abridged simply because a school board dislikes the content of the protected speech. Furthermore, since this was a “free day” for the students, no departure from a board-mandated curriculum occurred. It is obvious, therefore, that Mrs. Fowler’s discharge was prompted by the content of the movie.
Assuming that the school board could have properly discharged Mrs. Fowler for poor judgment and lack of remorse in showing an “R-rated” movie which had short scenes depicting nudity and sexual foreplay, but not for the other reasons given, this case must be decided under the “mixed-motive” analysis of Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977). Where a plaintiff can show that her constitutionally-protected conduct was a “substantial” or “motivating” factor in the discharge decision, the employer must prove “by a preponderance of the evidence that it would have reached the same decision as to ... re-employment even in the absence of the protected conduct.” Mt. Healthy, 429 U.S. at 287 , 97 S.Ct. at 576 .
Although Judge Peck’s opinion concedes that “the school board clearly expressed displeasure with the anti-establishment focus of the film,” he argues nonetheless that the board’s “objections to the ‘immoral’ content of the film were intertwined with constitutionally permissible objections to the film’s above mentioned vulgarity and unsuitability for the student age *670 group_” Opinion of Judge Peck at p. 668. I do not believe an argument based on intertwining can be used to suppress protected speech; vulgarity should not be allowed to subsume that which is protected.
In Cohen v. California, 403 U.S. 15 , 91 S.Ct. 1780 , 29 L.Ed.2d 284 (1971), the Supreme Court held constitutionally protected the act of wearing a jacket bearing the words “!?X! the Draft” into a courthouse corridor. Writing for the Court, Justice Harlan stated that “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” 403 U.S. at 25 , 91 S.Ct. at 1788 .
Therefore, I disagree with the distinction between instruction and entertainment drawn by Judge Milburn and the conflation of vulgarity and anti-establishment ideas set forth by Judge Peck. As the District Court correctly found, the school board in this case had to negate the testimony of its own members that the determinative causative factor in Mrs. Fowler’s discharge was her decision to allow “antieducation, antifa-mily, antijudiciary, and antipolice” views to be expressed in her classroom. The District Court held that the school board failed to. carry this Mt. Healthy burden. I agree with both of these findings. Therefore, I would affirm the judgment of the District Court.