A Different Take on the Supreme Court's Recent Decision Concerning Law Schools' First Amendment Rights and Campus Military Recruitment

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, Mar. 17, 2006

Last week, in Rumsfeld v Forum for Academic Institutional Rights, Inc. (FAIR) the Supreme Court unanimously rejected a First Amendment challenge to a federal law, the "Solomon Amendment," that requires universities to provide access to military recruiters in order to receive federal funding.

Various law schools had claimed that because the military discriminates on the basis of sexual orientation, the Solomon Amendment violated their rights to be free from having their campuses used to facilitate speech with which they disagreed. The Court - in an opinion written by Chief Justice Roberts - chided the plaintiffs for attempting to "stretch a number of First Amendment doctrines" and for "exaggerating the reach" of the Court's prior First Amendment precedents.

We think this tone was misplaced. Indeed, we think it was the Court's opinion last week that didn't really engage past Court doctrines and precedents; whatever the quality of the plaintiffs' arguments, the Court needed to say much more than it did in explaining its result.

To give the Justices their due, we recognize that Chief Justice Roberts was not a member of the Court when it decided many of the cases he was forced to distinguish in FAIR. And it is no easy task to obtain unanimous support for an opinion that implicitly retreats from earlier decisions. But those difficulties do not really justify assigning blame for the Court's predicament on the plaintiffs who had invoked the Court's precedents.

Before we explain what we view as the doctrinal shortcomings with the Court's opinion in FAIR, we should be clear on one thing: We believe (for reasons we will mention later) the Court reached the correct legal result in rejecting the law schools' First Amendment claims. In fact, one of us had urged friends and colleagues around the country not to participate in the litigation because the plaintiffs' arguments ultimately should not prevail.

The Opinion Ignored the Complexities of the Speech/Conduct Distinction

One of the key analytic moves the Court made in FAIR was to characterize the Solomon Amendment as regulating conduct rather than speech. The statute, wrote the Court, essentially regulates "what law schools must do - afford equal access to military recruiters - not what they may or may not say." In the Court's view, a requirement that the schools provide rooms in which recruiters could conduct interviews was a conduct requirement, plain and simple.

However, that is much too quick. Consider a key "compelled speech" precedent on which plaintiffs relied, Wooley v. Maynard. There, the Court struck down on First Amendment grounds a New Hampshire statute requiring that each passenger car registered in the State bear a license plate containing the unobstructed words "Live Free or Die" (the State's motto) on it.

In Wooley, one could have argued that what New Hampshire was requiring - the affixing upon each passenger car a certain specific kind of license plate - was conduct. Providing space on your car for a state-mandated license plate is no more expressive than is providing space in a building for a recruitment interview.

But the Wooley Court understood that what mattered was not whether the regulated persons were engaging in speech or conduct, but instead whether private individuals were being forced to allow the government's speech - New Hamsphire's motto - on the private persons' property (their cars). As the Wooley Court wrote, the question presented was "whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property. . . . New Hampshire's statute in effect requires that [drivers] use their private property as a 'mobile billboard' for the State's ideological message."

What about the argument in FAIR that the law schools were being forced to use their recruiting rooms as a platform or forum - a talking or temporary billboard, if you will -- for the military's message?

Surely, the actual recruiting for military staff, like advertising for the sale of goods and services, has a substantial speech component to it. For example, a school's provision of "access" to the military recruiters might involve a university's having to offer wall space for the temporary hanging of military recruiting posters in the rooms of the university's buildings where the interviews are to occur.

To be sure, it could be argued (as Chief Justice Roberts did) that the speech dimension of recruitment is often incidental to the non-speech hiring objective of the government, but more explanation by the Court here would have been preferable to the Court's reflexive reliance on a speech/conduct line.

The Opinion's Misreliance on the Misattribution Problem

The FAIR Court also dismissed the plaintiff's arguments because it thought no reasonable outside observer would mistakenly believe that law schools - simply because they allow military recruiters on campus - actually agree with or embrace the message of those recruiters.

But the plaintiffs in Wooley prevailed even though there wasn't a misattribution problem there, either: Nobody seeing a stock, standard-issue New Hampshire license plate on the road is going to necessarily believe that the driver himself embraces Patrick Henry's famous "give me liberty or give me death" creed. Indeed, the lower courts in Wooley had made a specific finding to this effect -- that "defendants' membership in a class of persons required to display plates bearing the State motto carries no implication . . .that they endorse that motto or profess to adopt it as matter of belief" -- and the majority did not challenge it.

And yet the Wooley Court still said the State couldn't force private persons to engage in conduct that facilitates the government's message being communicated using their property.

The Relevance of the Speaker's Ability to Distance Himself from a Message With Which He Disagrees

The FAIR Court also pointed out that the law school plaintiffs are free to distance themselves from the military's message if they want. But this was true in Wooley too: The New Hampshire statute did not forbid a person from placing a bumper sticker above his license plate saying "I disagree with New Hampshire's motto."

And in any event, the Court's suggestion that the First Amendment problem dissolves because the law schools remain free to speak themselves is in deep tension with the reasoning of other precedents the Court did not adequately confront.

For example, in Miami Herald Publishing Co. v. Tornillo, the Court invalidated an "equal time" law that required a newspaper to provide space to political candidates who had been attacked in print. In doing so, the Court rejected the notion that the newspaper could always distance itself from anything a political candidate said in the space provided him, by merely writing its own editorials responding to the candidate's speech. Indeed, the Court noted that putting pressure on the newspaper to speak in order to distance itself from, or respond to, a message it was required by law to host itself burdens the newspaper's First Amendment rights.

A plurality of the Court made much the same observation in Pacific Gas & Electric Co. v. Public Utilities Commission of California, where the Court invalidated a requirement that a utility company provide access to the extra space in the billing envelopes it sends to customers for a ratepayer advocacy group whose views might be very different from the utility's own. This was so even though the utility could have countered the advocacy group's speech with its own message had it wanted to.

Thus, ironically, what the Court in FAIR describes as a reason why there is no First Amendment problem - the possibility that law schools might speak on their own to distance themselves from the military - is in prior cases (like Miami Herald and PG & E) described as a First Amendment problem in its own right, insofar as speakers might feel compelled, as a practical matter, to counter the speech they were forced to host.

Is the Military Context Different?

One way the FAIR Court might have tried to distinguish this case from earlier ones is to rely on Congress' broad powers to raise and support military forces. And at the beginning of his opinion for the Court, Chief Justice Roberts does observe that "judicial deference . . . is at its apogee when Congress legislates under its authority to raise and support armies."

But the Court never really returns to this theme in the rest of the opinion; the vast majority of the FAIR decision's analysis seems unaffected by the distinctive military setting of the case.

And perhaps that's all to the good. Do we really think, for example, that Wooley v. Maynard would have come out differently if it had involved a Congressional (rather than New Hampshire) regulation of license plates that required each driver to bear a plate saying "Uncle Sam Needs You - Join the Army"?

Or would the Miami Herald case have been different if a federal law required newspapers to run recruitment ads for the federal military over the objections of the newspapers' owners and editors? We're not sure at all that Congress' enumerated power of military recruitment would trump the First Amendment principles and concerns identified in these earlier cases.

Why the FAIR result was a Fair One

In the end, the Court did reach the right result - for several reasons.

First, although the Court completely minimizes the funding aspect of this case - and instead simply asks whether Congress could require schools to provide access to military recruiters even if federal funds weren't in the picture - we think Congress does have more leeway to regulate when it offers financing in return. Although we recognize that the power to attach conditions to funding has its limits, we also believe a school's ability to turn down the offered funds if it doesn't like the strings that accompany the subsidies has to count for something.

Second, and more important, we think that the individual dignitary and autonomy interests that led the Court to protect the individual drivers in Wooley don't necessarily apply to large institutions like colleges and universities. A car is much like a person's home or a person's clothing - it is an extension of the person and his sense of privacy - and what the Wooley Court called the "individual's First Amendment right to avoid becoming [a] courier" seems strongest in an intimate context.

The larger, the more businesslike, and the more impersonal the setting, the less plausible it is to invoke the kind of dignitary and autonomy interests that drive the result in Wooley. So, for example, consistent with Wooley, we think it may very well be permissible for the federal government to require industrial employers to post ads for war bonds in the workplace; places of business have fewer privacy and dignitary rights.

But not all places of business are the same. Certain organizations, like newspapers, are distinctively created for and devoted to expressive association. So whether an organization has a right to exclude government speech with which it disagrees may depend on how central speech and expression are to its own mission. This is why, for example, we think the Miami Herald, even though it is a for-profit institution, may not be required to run government ads if it doesn't want to.

Can our stance be reconciled with the PG & E result? Perhaps not. In dissent there, Justice Rehnquist (joined by Justices White and Stevens) argued that "[e]xtension of the individual freedom of conscience decisions to [all] business corporations strains the rationale of those decisions to the breaking point." It may be time for this view to prevail - but if so, Chief Justice Roberts' opinion in FAIR should have said as much explicitly.

Where do the law schools in FAIR fit in, on this spectrum between individual property owners and mega-corporations? On one hand, colleges and universities, like newspapers, do have a distinctive and historical role in expressive association. On the other hand, facilitating recruitment by outside employers is in our view far from the core expressive function of the university. If the federal government wanted to impose requirements on what universities taught in the classroom - if the government mandated "access" for certain pro-military ideas or speakers in course content - we would see a big problem. But unlike the teaching of classes, the facilitation of post- graduation employment doesn't trigger the kind of dignitary, autonomy interests that are present in cases like Wooley and Miami Herald.

Even in the realm of employer recruiting, however, difficult cases might arise. For example, does the FAIR ruling mean that government could require a Catholic school to provide equal access to Planned Parenthood recruiters who are looking for new employees? We feel difficult scenarios like this aren't adequately dealt with by the FAIR analysis, because the opinion itself doesn't really wrestle with the complexity of all the prior cases.

All of which goes to show that failing to grapple meaningfully with past doctrine is sometimes not that much better than stretching it.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. Alan Brownstein is a Professor of Law at UC-Davis School of Law.

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