Early Thoughts on Rumsfeld v. FAIR (Commentary)
by Marty Lederman
Very preliminary reactions:
Notably, in today's unanimous decision the Court does not rely on the Spending Clause, but instead holds that the government could directly impose on schools the requirement of military access. Indeed, the Court first rejects the amici's statutory argument that the Solomon Amendment merely requires access to the military on the same conditions as those imposed on other employers. The implication is that schools must afford DoD exemptions from any recruiting rules that have the effect of giving the military less access to students than some other employer. Thus, the holding is that the government may require schools (including private schools) to give preferential access to military recruiters, without any First Amendment concerns.
The Court distinguishes the Boy Scouts v. Dale decision on the ground that the required inclusion there affected the group's membership, rather than its invited visitors. That, of course, doesn't distinguish Hurley (or Runyon, or Grove City, or AP v. NLRB, or . . . ). As for Hurley (and Tornillo and PG&E), the Court holds that requiring access to other parties' speech is only constitutionally problematic where that access has a palpable effect on one's own speech (such as by alterning the message conveyed in a parade (Hurley), or by monopolizing scarce space in a newspaper that could have been used for the plaintiff's own speech (Tornillo)). The least persuasive part of today's opinion, I think, is the Chief's attempt to distinguish PG&E. Here's what he writes:
The same is true in Pacific Gas. There, the utility company regularly included its newsletter, which we concluded was protected speech, in its billing envelope. 475 U. S., at 8-9. Thus, when the state agency ordered the utility to send a third-party newsletter four times a year, it interfered with the utility's ability to communicate its own message in its newsletter. A plurality of the Court likened this to the situation in Tornillo and held that the forced inclusion of the other newsletter interfered with the utility's own message. 475 U. S., at 16-18. In this case, accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school's recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter's message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.
In other words, Chief Justice Roberts is holding that there is a threshhold test -- "Is the plaintiffs' conduct 'inherently expressive'?" -- that triggers Tornillo-like scrutiny. So, for instance, if PG&E had not had a practice of including its own newsletter in the billing envelopes -- if the state there had required that it provide the third-party newsletter alongside its plain ol', unadorned "not inherently expressive" electric bills -- there would have been no First Amendment problem. This is a fairly significant revisionist reading of PG&E, in which the plurality's decision turned on the fact that including the required inserts would prompt the electric company to engage in unwanted counterspeech. 475 U.S. at 15-16. (UPDATE: On the other hand, the PG&E plurality also focused on the fact that the compelled access in cases such as Tornillo and PG&E was triggered by the complaining party's own speech. That's obviously not the case in FAIR -- the preferential military access requirement is not triggered by any speech of the schools' own, and thus is not a "penalty" for having spoken. That would have been a cleaner ground on which the Court could have distinguished cases such as PG&E and Hurley -- and it will be interesting to see whether the Chief''s opinion is so construed in future cases.)
Today's decision is much more in keeping with PruneYard (which it favorably cites) than with PG&E and Dale. Together with Johans, it shows that the Court is cutting back on some of the excesses of its compelled-speech doctrine. Those of us who think that PruneYard was rightly decided will not think this is necessarily a bad thing. We might only wish that the Court would now reconsider whether Abood, Keller and Dale can be meaningfully distiguished from PruneYard, Johans, Runyon, AP v. NLRB, and now FAIR.
Solomon Amendment likely to survive
by Lyle Denniston (SCOTUSblog)
Congress' demand that law schools give military recruiters equal access to their students, despite the military's policy of barring homosexuals from service, appeared to have survived quite easily its constitutional test in the Supreme Court on Tuesday, at least if oral argument reflects the Justices' actual leanings. Aside from Justice Ruth Bader Ginsburg and, possibly, Justice David H. Souter, the so-called "Solomon Amendment" appeared to draw no serious opposition from the bench.
Chief Justice John G. Roberts, Jr., made it clear in several instances that he sees the case as solely one in which the law schools can pursue their desire to exclude the military's recruiters simply by giving up federal funds. Other Justices, while making somewhat more nuanced comments, seemed to be troubled by the prospect that a major First Amendment ruling in favor of the law schools would open the way for individuals to resist obeying all kinds of laws -- including federal anti-discrimination laws -- by claiming their refusal to obey was a matter of their beliefs or conscience.
And, with some concessions by Solicitor General Paul D. Clement, some of the Justices -- especially Sandra Day O'Connor -- appeared to be satisfied that the law schools can get across their anti-discrimination message even while allowing military recruiters on campus and giving them equal access. Clement went quite far in saying that the Solomon Amendment would permit university and law school officials to engage in robust protests against military recruiters -- including jeering when they walk into the room at a jobs or career fair.
Clement, in fact, was so expansive about the kind of protests he said the Solomon Amendment would not block that Justices Antonin Scalia and Anthony M. Kennedy voiced some concern that this might actually obstruct the military's chances of any successful recruiting. The Solicitor General, however, did not yield, saying that military recruiters "were not afraid to confront speech" in opposition to their efforts.
The counsel for the law schools, New York attorney Joshua E. Rosenkranz, made reasonably well most of the points to be made on his side of the case, but to no apparent avail. And, by accepting somewhat extreme hypotheticals about extensions of his First Amendment protest argument, Rosenkranz opened the way for Clement, on rebuttal, to stress that there was "no limit to their argument" so that "more is at issue here than the exclusion of homosexuals." The Court should be worried, Clement said, about law schools next objecting to military recruiters on a wide array of other grounds -- objections to the military's exclusion of women from combat positions that are the route to leadership, opposition to the war in Iraq, or to the war in Afghanistan. And, he said, "we have to worry about this coming back in the context of Title VI and IX."
It was no surprise that the Solomon Amendment's most avid supporter on the Court was Justice Scalia. He mildly scolded Clement for basing much of his argument on Congress' power to attach strings to federal funds' receipt, and not on Congress' power "to raise and support armies." Recruiting officers on college campuses, Scalia suggested, was a constitutionally endowed activity of the military. "We have said the judicial deference [to Congress] is at its apogee when Congress acts to raise and support armies. That's precisely what we have here," Scalia said.
But Justice Kennedy was also equally fervent in his support of the Solomon Amendment, as he openly fretted that "resistance to any statute could be justified as expressive speech."