Little sympathy for law schools' free-speech argument

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — “The remedy for speech you don’t like is not less speech, it is more speech.” That is one of the cherished mantras of First Amendment advocates, and when a Supreme Court justice invokes it at oral argument, it is usually a sign of a pro-First Amendment vote in the making.

But yesterday, when Justice Stephen Breyer recited the maxim twice, it appeared he was doing so to support, not counter, the government’s position in a case involving the federal law that requires universities to give equal access to military recruiters as a condition for receiving federal funds.

It was just one sign of how unlikely it is that the Supreme Court will strike down the law on First Amendment grounds in the case Rumsfeld v. Forum for Academic and Institutional Rights. A coalition of law schools challenged the so-called Solomon Amendment as a form of compelled speech, requiring law schools to support the military and its message against open homosexuality in its ranks. Since 1990, the Association of American Law Schools has officially discouraged its members from allowing employers who discriminate on the basis of sexual orientation to recruit law students.

But Breyer appeared to suggest that it was the government’s speech rights that were being violated by law schools not wanting their students to be exposed to the military’s views. If law schools could keep recruiters out because they object to the "don't ask, don't tell" policy on gays, Breyer said, then segregationist universities could do the same to protest the military’s policy favoring integration and diversity. The government might end up having a hard time getting its own recruitment message out, Breyer suggested.

Several other justices picked up on the “more speech” theme, asking Solicitor General Paul Clement whether the law permits host institutions to register their objections to the military policy, at the same time allowing the military to recruit.

Clement surprised justices by accepting a wide range of counter-speech, ranging from signs outside the rooms where recruiters meet students, to school-organized demonstrations against military recruiters. An incredulous Justice Anthony Kennedy asked Clement if he would accept a demonstration in which students were jeered at as they walked into interviews with the military. Clement said yes, indicating that the government’s rule was: “Access, yes, but be respectful of speech.”

Scalia looked skeptically at Clement and said, “You’re not going to be an Army recruiter, are you?” Clement acknowledged he would not, but he seemed to calm most of the doubts justices might have had that law schools would be unable to distance themselves from the military’s message.

Several other elements of the First Amendment argument offered by the law schools’ lawyer E. Joshua Rosenkranz came under strong attack. Chief Justice John Roberts was especially critical in his questioning.

Roberts said the law, passed in 1994, “doesn’t require anything” from universities in terms of support for military policies, because they can simply choose to refuse federal money. But universities contend that because the law allows the government to withdraw federal funds from an entire university, even if only the law school refuses equal access to military recruiters, that is an impossible choice which amounts to coercion.

But Roberts gave short shrift to that argument, implying that if universities really felt strongly about the military’s policy regarding homosexuality, they would pay the price of losing federal money institution-wide.

Rosenkranz gamely asserted the main argument against laws that restrict speech as a condition for receiving federal benefits, namely that under the Court's precedents, the government may not use the threat of cutting off funds to force recipients to surrender their constitutional rights. “All bets are off if there is a superseding right,” he said.

Roberts said in response that there is also a “right to raise the military.” He and other justices seemed to view the Article I power of Congress to “raise and support armies” as a justification for the recruiting statute that outweighs law schools’ First Amendment objections. Justice Antonin Scalia fit the case into the high court’s usual deference to military judgments, citing the “immense national importance” of filling the military’s recruiting needs.

Roberts also knocked down another of the law schools’ compelled-speech arguments, telling Rosenkranz that “everybody knows” that the policies of a recruiter like the military don’t necessarily reflect the views of the host institution.

When Justice John Paul Stevens asked Clement if a university could “symbolically” register its objections by giving military recruiters equal access but at a different campus location from other recruiters. Roberts interjected, in a mocking tone, “Sort of separate but equal.”

Clement questioned whether speech rights were implicated at all by the law. He compared the case to U.S. v. O’Brien, the 1968 decision upholding the law against burning draft cards. In that case, the Court said the law's infringement on speech was “incidental” to the law’s main purpose of aiding in the administration of the military draft. Likewise, Clement said the Solomon Amendment was primarily aimed at facilitating the “commercial enterprise” of military recruitment, with only “incidental” impact on speech.

That assertion provoked one of the few pro-First Amendment reactions from the Court. Justice David Souter, noting that the Solomon Amendment was passed in reaction to law schools’ protests against the military's position on homosexuals, said the law’s “sole objective is expressive.” Souter may be the only justice to vote for the law schools’ position, and even that is not certain.

Later Rosenkranz also said the law embodied “the most viewpoint-oriented discrimination against speech.” But by then most justices seemed to have made up their mind that the Solomon Amendment posed no serious threat to the ability of law schools to make their positions known.