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Rumsfeld v. FAIR: What does it mean?
An online exchange of comments

By Dale Carpenter
and Robert Corn-Revere

03.09.06

Editor's note: Shortly after the Supreme Court rendered its opinion in Rumsfeld v. FAIR on March 6, the case concerning military recruiters on law school campuses, commentators began to opine about its meaning and ramifications.

Two of the more thoughtful commentaries were authored by Dale Carpenter, a law professor, and Robert Corn-Revere, a First Amendment lawyer. In the exchange below Corn-Revere responds to Carpenter’s comments, which originally appeared on, and are reprinted with permission from, the Volokh Conspiracy blog. — Ronald K.L. Collins, First Amendment Center


Prof. Dale Carpenter (03/06/06)

Dale Carpenter.

Several quick reactions to today’s unanimous decision by Chief Justice John Roberts in Rumsfeld v. FAIR, the Solomon Amendment case:

1. The Court side-stepped the thorny and under-theorized question of government power to give money to an individual or institution on the condition that it relinquish the exercise of a constitutional right.

This “unconstitutional conditions” doctrine holds that government may not so condition a benefit it confers, even though there is no independent “right” to the benefit itself. Thus, the federal government could decide not to have a food-stamp program. But it could not distribute food stamps (an elective government benefit) only to people who agree not to criticize the war in Iraq (which they have a constitutional right to do). On the other hand, the government can give money to people to send their children to public schools (an elective government benefit) but not to private schools (which they have a constitutional right to attend). The doctrine is a mess — and still is after today.

Much of the popular reaction to Rumsfeld v. FAIR prior to the decision suggested that this part of the case was easy: “If you don’t want to let military recruiters on your campus, don’t take the money. If you want the money, let the military recruit.” But this part of the case was never as easy as that reaction suggested.

While the Court acknowledged the unconstitutional-conditions issue, and the tensions in the doctrine (slip op. at 9), it didn’t address the issue because it decided there was no meritorious underlying First Amendment freedom being exercised by schools. The opinion has nothing valuable to say about this huge area of potential future constitutional litigation, an area that has special significance in an era of annual federal budgets approaching $3 trillion and a Congress eager to use this enormous economic leverage to get individuals, associations and states to do its bidding.

2. On the substantive question of whether the schools enjoyed a constitutional right to exclude military recruiters, the Court rejected three different “free speech” claims raised by FAIR. Schools are not “compelled” by the law to say anything very important (Slip op. at 11-13), are not objectionably required to host the speech of the government within their own forum (Slip op. at 13-15) and are not denied their right to engage in expressive conduct (Slip op. at 16-18). In each case, the Court arguably narrowed its precedents, limiting the reach of free-speech rights.

Most interesting is its treatment of the “expressive conduct” doctrine. The Court has never had a satisfying theory of what conduct should get free-speech protection. Some conduct does get some level of protection (flag-burning, nude dancing) and some conduct doesn’t (perusing an adult bookstore). Different verbal formulations have been offered to explain the distinction but they’ve always been very indeterminate. Now the Court says that First Amendment protection extends only to conduct that is “inherently expressive” (Slip op. at 16). As best I can tell, this formulation of the test for what counts as protected expressive conduct is a new one.

It’s difficult to predict what conduct will count as “inherently expressive,” and thus get First Amendment protection, and what conduct will not be deemed “inherently expressive,” and thus get no First Amendment scrutiny. I'm not sure the distinction amounts to much more than the old obscenity standard, "We know it when we see it." The Court appears to mean that inherently expressive conduct is that conduct for which the expressive component is “overwhelmingly apparent,” and thus needs no further accompanying speech to signal that it is expressive. This, the Court thinks, helps us separate flag-burning (inherently expressive) from the exclusion of the military from law school recruiting (not inherently expressive).

But is that right? We don’t know much about the message any conduct conveys, or whether it conveys any message at all, unless we know the context in which it occurs. Burning a flag could signal strong disagreement with the nation’s foreign policy (expressive), or could be accidental (not expressive), or could be an attempt to generate heat in the cold (not expressive), or could simply be disposing of a tattered flag in the manner prescribed by the government (not expressive?). Similarly, a law school’s exclusion of the military could signal disagreement with some governmental or military policy, like Don’t Ask, Don’t Tell (expressive), or could merely reflect that the law school ran out of space for interviews (not expressive). Context, including what the actor says about his conduct, matters.

The uninformed observer, unaware of context, could not tell whether any particular act was expressive, so it should not matter that “listeners” or “observers” cannot appreciate why the law schools want to exclude military recruiters until they are told why. In fact, in the current environment of heightened sensitivity to law school recruitment policies, the reasonably informed observer has a good idea why a law school might want to exclude the military. Even if in principle we could draw a line between protected conduct and unprotected conduct that would leave schools’ recruitment policies outside the protected realm, the Court’s discussion of this question is unsatisfying.

The Court’s discussion also contains what may be a doctrinal error, albeit one that makes no difference in the outcome. The Court argues that in Texas v. Johnson, the 1989 flag-burning case, it “applied [United States v.] O’Brien and held that burning the flag was sufficiently expressive to warrant First Amendment protection” (Slip op. at 16). Johnson held the opposite: that the O’Brien test did not apply because the government’s interest in prohibiting flag-burning was related to the suppression of free expression (and thus deserved stricter scrutiny than applied under O’Brien). “We are thus outside of O’Brien’s test altogether,” said the Johnson Court. I guess whether this is truly an error depends on what the Court means by “applying O’Brien,” but at the very least the opinion is imprecise on this point (unusual for Roberts, a careful writer).

3. The Court rejected the schools’ claim, relying on Boy Scouts of America v. Dale (upholding the associational right of the Boy Scouts to exclude a gay scoutmaster), that their freedom of association should allow them to exclude military recruiters (Slip op. at 18-20). There was much irony in the dispute over the meaning of Dale as it applied to this case. Some of the same people who criticized Dale as “anti-gay” six years ago relied heavily on it to make an aggressive claim about associational rights. Of course, the irony went both ways. Some conservatives who hailed Dale as a great victory for freedom six years ago argued for a very narrow interpretation of it.

There is much to say about the Court’s discussion of associational freedom. I’ll limit myself here to this: Gone is the Court’s insistence, explicit in the Dale opinion, that we must defer to the association’s own judgment about what types of government regulation would impair its message. While the Court agrees that associational freedom is not limited to decisions about membership, it now suggests that regulations of associations are objectionable only (?) if they “mak[e] group membership less attractive” (Slip op. at 20). This, too, is something we have not before seen in the Court’s decisions. Prior to this decision, I believe, the Court has worried primarily about the effect a regulation might have on the group’s ability to get across its message, however that impediment operated. Now the focus of associational freedom seems to have been narrowed to concerns about effects on membership that in turn may affect message.

One could support the Court’s result in this decision — that the Solomon Amendment is constitutional — while still being quite concerned about its potential narrowing effects on First Amendment freedoms. The upshot of the Court’s view about free speech and associational rights is this: The government could require schools to admit military recruiters, not merely withdraw funds from schools that object to the recruiters’ presence.

4. As a practical matter, the ruling changes nothing in the steps many schools have taken to “ameliorate” the presence of military recruiters by, for example, hosting fora on the military’s policy on the day military recruiters are present, or posting notices of opposition to the presence of discrimination on campus, even outside the door where military recruiters are interviewing. In fact, the decision today appears to give a bright green light to these efforts that some schools may have avoided until now for fear they would lose funding. From the opinion:

The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while maintaining eligibility for federal funds. (See Transcript of Oral Argument at 25 [Solicitor General acknowledging that law schools could ‘put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.’]). (Slip op. at 10)

There was some question before this decision whether schools that posted these notices, or even organized protests, might not be giving the military access to their facilities that was "equal" to the access given other employers. As a matter of statutory construction, that worry should be over. Thus, the Court suggests, ameliorate at will.

Dale Carpenter is an associate professor of law at the University of Minnesota Law School.


Robert Corn-Revere (03/07/06)

Robert Corn-Revere.

Professor Carpenter makes some interesting points about Rumsfeld v. FAIR, but there are several issues about which I disagree:

1. In the section of the opinion that discusses “expressive conduct” I don’t think Chief Justice Roberts meant “applying O’Brien” in any sense other than to make the point that symbolic speech is protected expression. The Court applied very different levels of scrutiny in Texas v. Johnson, which involved flag-burning, and United States v. O’Brien, which involved draft-card burning. But nothing in Rumsfeld suggests that the intermediate-scrutiny approach of O’Brien should be applied in all cases of expressive conduct. The level of protection depends greatly on context and the purpose underlying the government's actions.

2. I agree with Professor Carpenter that the Court has never had a satisfying theory for what conduct will receive First Amendment protection, but I don't think the Rumsfeld decision makes doctrine in this area any less “satisfying” (or more difficult to understand). The “inherently expressive” tagline in Chief Justice Roberts’ opinion does not appear to me to limit the scope of the symbolic-speech doctrine. Symbolic speech always has required both (1) an intention to communicate, and (2) some message that would be understood by onlookers. Hurley v. Irish-American Gay Group of Boston made clear that it does not necessarily need to be an articulable message and the [Rumsfeld] decision does not change that. Moreover, the Court’s focus on whether actions are “inherently expressive” did not begin with the Rumsfeld decision, but was part of the analysis in the decisions on nude dancing (Barnes v. Glen Theatre, Inc.; City of Erie v. Pap’s A.M.). The language was also used by Justice Stevens in his dissenting opinion in Boy Scouts of America v. Dale, where he (along with Justices Souter, Ginsburg, and Breyer) argued that the Scouts’ membership policies were not “inherently expressive.”

Here, Chief Justice Roberts’ formulation and his citation of flag-burning as the paradigmatic example of expressive conduct in an 8-0 decision may signal an improvement in the Court’s approach to symbolic speech. The Court up to now was divided 5-4 on the issue of flag-burning. (See Texas v. Johnson; United States v. Eichman.) Indeed, the Court’s unanimous embrace of flag-burning as protected symbolic speech is far removed from former Chief Justice Rehnquist’s dissent in Johnson that compared flag-burning to “an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.”

3. I disagree that the Rumsfeld decision narrows associational rights. The decision does not diminish the rule that restricting an association’s ability to communicate its message violates the First Amendment — it instead disagreed that the universities represented by FAIR were engaged in a communicative act. There is room for disagreement about whether the Court was correct in its factual judgment on this issue but I do not see this as a doctrinal change. If anything, the Court’s conclusion in Rumsfeld arguably expands the notion of associational rights by suggesting that measures making membership in a group “less attractive” may constitute a constitutional violation. The Court does not appear to suggest that groups have less autonomy to decide what their “message” or “philosophy” will be, but it draws distinctions among the types of associations it has in mind. Private groups receive more deference than public institutions. There is nothing in this decision, for example, suggesting the government could force pacifist clubs to invite military recruiters to their meetings (even where the clubs fully retain their ability to protest such intrusions).

4. Generally, I take more comfort from the Court’s discussion of the above issues than I do from the disappointed respondents’ claims that the Rumsfeld decision “reaffirms” the ability to protest recruiters’ presence on campus. This right was never seriously in doubt, was not at issue here, and the decision does not add any new rights that didn't already exist. That being said, the language in the unanimous opinion affirming a right to protest is nice to see.

5. Finally, I agree that the decision sidestepped the thorny issue of unconstitutional conditions, and that is not necessarily a bad thing under the circumstances. Chief Justice Roberts briefed the government’s position in Rust v. Sullivan as a Deputy Solicitor General, and an expansion of the Rust rationale in this case would have been far more damaging to First Amendment doctrine than is the unanimous decision the Court issued. Interestingly, the Roberts opinion cites United States v. American Library Association, Inc., a case that denied an unconstitutional-conditions claim, to reaffirm the proposition that “the government may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit.” While I personally disagree with the outcome in U.S. v. ALA, the Court’s unanimous citation of it in Rumsfeld to support the basic doctrine of unconstitutional conditions is encouraging.

Robert Corn-Revere is a partner in the Washington, D.C. office of Davis Wright Tremaine, where he specializes is First Amendment law.


Carpenter replies (03/08/06)

I’m grateful to Mr. Corn-Revere, an outstanding First Amendment advocate, for a very thoughtful and substantive response to my concerns about the [Rumsfeld] decision. Our differences seem mostly to be on very debatable questions of emphasis and interpretation of the opinion along the lines of describing the glass as either half-empty or half-full. I genuinely hope his more optimistic take on the opinion — from a speech- and association-protective perspective — is the more accurate one. For the sake of brevity, I won't address all of his excellent points. I’ll add just a couple of further thoughts on the most important questions he raises.

It’s notable that in its discussion of expressive conduct, the [Rumsfeld] decision makes no reference to the previous tests for what conduct could count as expressive. If Chief Justice Roberts had used the Spence v. Washington two-pronged test (restated in Johnson), for example, he would have asked whether there was an intent to convey a message and whether that message “in the surrounding circumstances” would be understood by those who viewed it. The answer in the context of the law schools’ recruitment policies should have been “yes” to both questions. But that test appears nowhere in the [Rumsfeld] opinion. Instead, the [Rumsfeld] decision invites us to decide whether the “conduct itself” — unaccompanied by explanation or other context — is expressive. That is, we’re asked only to decide whether the conduct is “inherently expressive.” Not much conduct would seem to satisfy that requirement; indeed, in theory, no conduct would satisfy it. While this verbal formulation has appeared in plurality (Barnes, Pap’s AM) and dissenting (Stevens in Dale) opinions in the past, we now have a unanimous Supreme Court endorsing it. I do not think any prior opinion on the subject has suggested that in deciding whether conduct is expressive we should look only at the “conduct itself,” rather than at both the conduct and the context in which it occurs. Certainly Johnson considered context, as did Hurley.

Of course, the Court is always free to return to the somewhat more expression-protective tests of the past for symbolic conduct — and it has not explicitly rejected those tests here. But [Rumsfeld] itself gives us only the narrower “inherently expressive” formulation.

On associational rights, the Dale court explicitly deferred to the Boy Scouts on both the question of the content of the group’s message and the question of what would impair that message. “As we give deference to an association’s assertions regarding the nature of its expression, we must also give deference to an association’s view of what would impair its expression,” said the Dale Court. That deferential posture is absent from the [Rumsfeld] decision both in rhetoric and in substance. While a group must do more than say compliance would impair its message, the schools did do more than that here — and still lost. Maybe the Court's more skeptical approach to associational claims in [Rumsfeld] is the better one, but it does seem to me different than the deferential approach announced in Dale.

Further, while the [Rumsfeld] decision states that associational freedom protects more than a group’s membership, in substance it has minted a test for protecting associational freedom that seems largely limited to membership concerns. Thus, the Court holds that the schools have failed to show that “the statute affects the composition of the group by making group membership less desirable” (Slip op. at 20). The whole point of the schools’ claim was that having to host a message they regard as repugnant would impair their own message that discrimination against gay Americans is wrong, regardless of whether compliance had any impact on their “membership.” The Court rejects this claim by saying, in effect, “Show us how compliance would affect your message by affecting your group’s membership.” It concludes this by narrowly reading prior associational-freedom cases as involving laws that “did not directly interfere” with membership, but which “made group membership less attractive” (Slip op. at 20). There is notably no citation or quotation supporting this narrower reading of the scope of associational freedom. Again, perhaps the Court’s attempt to cabin the reach of associational freedom in [Rumsfeld] is defensible, but it does seem a narrower view than it has taken in the past.

Finally, I see nothing in [Rumsfeld] that tells us that private groups will get more deference or protection on any of these First Amendment questions than do public institutions. The law schools represented in the case were both public and private institutions. Yet all lost equally. Yale is as constrained by the decision as is my own University of Minnesota.

The upshot is that the Court holds that the government could require schools, both public and private, under threat of criminal sanction, to allow its representatives to appear over the schools’ strong objections. That Congress chose not to do so in the Solomon Amendment is now a matter of legislative grace, not constitutional freedom. Prior to the decision, even many supporters of the Solomon Amendment agreed that the government could not go so far. On this basis alone, the [Rumsfeld] decision should concern anyone devoted to First Amendment freedom.


Corn-Revere replies (03/08/06)

I appreciate Professor Carpenter’s well-considered dialogue on this issue, and I agree that our differences have less to do with the meaning of the Rumsfeld decision and are more focused on its potential implications. While I am not generally known as an optimist, and note there are aspects of the decision that are troubling, I don’t dispute his characterization that mine is a more optimistic reading of the opinion on certain issues of First Amendment doctrine. In particular, the decision does not alter the test for what constitutes expressive conduct, nor does it dilute the basic protections for associational rights.

Some of our disagreement about the implications of Rumsfeld no doubt stems from my lack of clarity in contrasting the impact of the ruling on “private groups” versus “public institutions.” Professor Carpenter is quite correct when he says that the Solomon Amendment applies equally to public and private universities. However, I did not intend my shorthand reference to the Court’s analysis of different types of associations as a reference to “state” as distinguished from “private” organizations but was using the word “public” to refer more to the concept of a place of public accommodation. Thus, when the Court said that universities were not like the school children in [West Virginia Board of Education v.] Barnette, the parade organizers in Hurley, or the Scout troop in Dale, I think it was suggesting that individuals (alone or in groups) are more likely to be engaged in communicative activities, and have more of a protected interest, than do “public” institutions.

The Court’s approach in this regard is troubling, but not for the reasons that Professor Carpenter suggests. For example, the Court reaffirmed its decision in PruneYard Shopping Center v. Robins, which upheld a California law that required a shopping center owner to allow certain expressive activities by others on its property. At the same time, it reaffirmed the compelled-speech decisions in [Miami Herald Publishing Co. v.] Tornillo and Pacific Gas and Electric [v. Public Utilities Commission] are still controlling law because “under the First Amendment ... a speaker has the autonomy to choose the content of his own message.” Thus, Rumsfeld did not hold that individuals or groups have less ability to engage in expressive activities under the First Amendment’s protection; it held that certain types of institutions are not really engaging in speech by controlling access to their property. I disagree with that categorical proposition as it relates both to this case and to PruneYard, and so I have my own concerns about the decision. They simply are different concerns of those of Professor Carpenter.


Related

Excerpts from Supreme Court arguments on military recruiters

Partial transcript of questions, remarks by U.S. Supreme Court justices, attorneys in Rumsfeld v. Forum for Academic and Institutional Rights. 12.07.05

Justices uphold campus military-recruiting law
Court rules 8-0 that colleges accepting federal money must allow such visits despite schools' objections to Pentagon's policy on gays. 03.06.06

Excerpts from, reaction to Rumsfeld v. FAIR
Quotes from and about Supreme Court's 8-0 decision. 03.07.06

2nd Circuit: Military-recruiting law doesn't violate academic freedom
Yale Law School, which objects to Pentagon's 'don't ask, don't tell' policy, says it will end ban on military recruiters after losing case. 09.20.07

Roberts' remarkable feat in military-recruiters case
By Tony Mauro Chief justice manages unanimous ruling through narrow writing, assertions that First Amendment didn't apply in some areas. 03.07.06

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