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Solomon Amendment Argument:

Sounds like it didn't go so well for the law schools in oral argument yesterday:

In the argument on Tuesday, the law school coalition's lawyer, E. Joshua Rosenkranz, had difficulty gaining traction as he urged the justices to uphold the appeals court's judgment that the Solomon Amendment amounted to "compelled speech" by forcing the law schools to convey the military's message. Chief Justice Roberts made his disagreement unmistakable.

"I'm sorry, but on 'compelled speech,' nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," the chief justice said. "Nobody thinks the law school believes everything that the employers are doing or saying."

The lawyer adjusted his focus. The law schools have their own message, "that they believe it is immoral to abet discrimination," he said.

This time, Justice Sandra Day O'Connor took issue. "But they can say that to every student who enters the room," she said.

"And when they do it, your honor, the answer of the students is, we don't believe you," Mr. Rosenkranz said.

"The reason they don't believe you is because you're willing to take the money," Chief Justice Roberts interjected. "What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."

Ouch. If you are keeping score at home, I think we can safely log the Chief's vote onto the government's side of the ledger. The Times story indicates that most of the other Justices were also fairly skeptical.

As you probably know, the Court has released the tapes of the oral argument in the case and they are available on C-Span. I, however, have been unable to get the C-Span link to work. I'm sure one of our more adept readers can explain what I'm doing wrong.

Update:

A Commenter reports on what to do if you are also having problems listening to the argument.

Medis:
It sounds like the reasoning in Dale is going to end up being limited by this case (which is probably not a bad thing).
12.7.2005 10:48am
Abdul (mail):
I was assigned to argue the Law School position for an assignment in a Civil Rights class. The class was loaded with people who generally hate the Solomon Amendment, but I still had to fight uphill because the argument of "give me unconditional money" is so tenuous.

One of the best points made by a student in that class: If the military dropped "Don't Ask Don't Tell," would the Law Schools continue to keep recruiters off-campus because the military discriminates against women in combat roles? Most assumed the law schools wouldn't, which raised the question why we're willing to defer to the military's personnel decisisons based on sex, but not on sexual orientation. Many of the reasons for keeping women out of combat based on physiological reasons can be countered (Israel's military puts women in more combat roles and they're still pretty tough).
12.7.2005 12:15pm
Bruce Hayden (mail) (www):
But it isn't the military's decision here. It is Congress'. Secretary of Defense Rumsfeld can't one day just abolish "Don't Ask, Don't Tell". It is a statute, passed by Congress, and signed by the President(s).
12.7.2005 12:29pm
Scipio (mail) (www):
I predict 8-1, with Souter writing somethign spectacularly squishy.
12.7.2005 12:33pm
chris:
I don't think dale is in trouble at all.
1. dale did not include a spending condition or governmentenal interest, it was whether a private club could exclude when the only competing speech interest were private.
2. The speech interest here, is attempting to invidate 2 seperate congressional article I powers. one being the spending clause, and the other power to raise armies (by far the most important in the courts eye, the generals say jump and the court responds how high)
3. The really interesting thing will be the staturary interpretation. There are definatly two factions on the court who are going rule against the respondent. the first breyer and o'connor and maybe stevens, are going to argue that the way for the shcools to go is more speech. the faction scalia, kennedy, robers, thomas, alito and maybe stevens are going to farther, they will invoke not only the spending clause but the power to raise armies, and will put limitations on how much the schools can engaged in. It would obvious to me that some members of the court were quite appalled at the treatment the recuiters could get under general clements interpation. Even though the statutory laguage does not support this, I don't that will stop the court from trying to create some kind of protection. I will probally be like somthing like, all speech is allowed up until the point it begins to obstructs the military and abridge congress's article I power to raise armies.
12.7.2005 12:33pm
nak:

This link worked for me for the audio:

rtsp://video.c-span.org/archive/sc/sc120605_rumsfeld.rm

The actual arguments starts about 6 minutes into the recording.
12.7.2005 12:36pm
Patrick McKenzie (mail):
For getting it to work: you'll need to download the free version of RealPlayer from www.real.com. I'm afraid I can't give you a direct link as I'm coming from a foreign IP and I think most of your readership would not be helped by an explanation page in Japanese. After installing RealPlayer (and having it register the rtsp protocol) you'll have to open the Realplayer Preferences, go down to media types, and either click "Make Realplayer your universal media player" or hit select from list, scroll down to Real time streaming protocol and select that. Apologies, none of these are exact prompts because, again, I'm using the Japanese localization.

CSpan has an explanatory page if you click the >> next to "video problems?" That will walk you through the English process.
12.7.2005 12:39pm
David M. Nieporent (www):
It sounds like the reasoning in Dale is going to end up being limited by this case (which is probably not a bad thing).
It may be true that the reasoning in Dale will be limited, but the two are easily distinguished by the fact that Dale represented a government requirement, while the Solomon Amendment is merely a condition attached to federal spending. (That's not to say that any condition is automatically constitutional; rather, it's a way to distinguish Dale.)

The problem FAIR faces is that they're so eager to express their anti-anti-gay sentiment that they're ignoring the fact that a ruling in their favor would eviscerate much of federal anti-discrimination law which they support.
12.7.2005 12:42pm
Medis:
chris and David,

I agree that Dale is potentially distinguishable for various reasons. I was actually specifically referring to the exchange with Roberts and O'Connor in the original blog post, which suggested to me that the expansive notion of expressive activity implied by Dale may be limited by the Court in this case.

Consider, for example, a hypothetical exchange in which Roberts tells the Boy Scouts that no one seriously believes that a scoutmaster is always speaking for the Boy Scouts whenever he speaks elsewhere about being gay. Imagine the Boy Scouts explaining that they have their own message about the immorality of homosexuality. Now imagine O'Connor responding that the Boy Scouts are free to tell each of their scouts that message every day. And so on.

Again, perhaps Dale is still distinguishable. But I think this sort of skepticism about expressive activity, if it finds its way into the opinion(s), is likely to limit the implications of Dale in future expressive association cases.
12.7.2005 1:28pm
gab (mail):
"I think we can safely log the Chief's vote onto the government's side of the ledger."

Is the implication here that "the Chief" has already made up his mind?
12.7.2005 1:31pm
cmp:
David Nieporent:

I believe that FAIR is actually quite aware of the possible effect a ruling in their favor would have on anti-discrimination laws. I recall reading a FAQ put out by FAIR describing its position (which I can't find now) in which it addressed this very issue. As I recall, the response to the question "won't this undermine anti-discrimination laws" was that the argument is there to be made by opponents of those laws, so FAIR might as well use it to oppose the Solomon Amendment.
12.7.2005 1:35pm
Justin (mail):
Point by point rebuttal to Chris:

1 - Can't be the right answer until someone explains to me that social security checks can be dependant upon a loyalty oath.

2 - Can't be the right answer because only Scalia (and perhaps Thomas, doubtfully Roberts) believes that the military power really controls the case (either there's a first amendment issue or there isn't, right? Same as the commerce clause), and the argument that the spending power can be used to "negotiate" with a private individual to take away affirmative constitutional rights on unrelated subject matter would be, as noted, both anovel and exceedingly scary holding.

3 - I should point out that Alito has not been confirmed, much less gets a vote on the issue. That being said, I'm not sure what you're trying to say. It is VERY doubtful that the court would go beyond the four corners of the case to decide the completely ancillary, unrelated issue of what types of protests can accompany the Soloman Amendment submission

Submission, indeed, what is going on - remember that the Soloman Amendment only requires access to law schools who are a) not providing access b) as a form of protest against the policies of the military (particularly, gay rights). Remember, the Soloman Amendment does *not* grant the right of "access" unilaterally - quaker schools and others whose lack of acccess is based on the relationship between the school and the military as a general matter are exempted.

My real concern on the issue is that the Court will do either one of two things - it will write a squishy, meaningless argument that addresses just the facts of the case, which will mean that it will ignore its real duty to interpret and apply "the law", or it will write an opinion that either

1 - significantly weakens the definition of "speech" to write out actions that may have ancillary effects (and to the degree that Conservatives are okay with that, they can shut up about McConnell v. FEC)

or

2 - overextends the spending clause and grants the government powers that, should congress not be vigilant, destroys the protections of the bill of rights entirely.

I'm of course hoping for something squishy and meaningless. Sadly for liberterians, the Third Amendment wrote a principled opinion which practically forced the Supreme Court to write one binding on the rest of the us.
12.7.2005 2:10pm
Public_Defender:
But it isn't the military's decision here. It is Congress'. Secretary of Defense Rumsfeld can't one day just abolish "Don't Ask, Don't Tell". It is a statute, passed by Congress, and signed by the President(s).
The military brass would have to be moral cowards to make this argument. They revolted when Clinton wanted to let gays serve in the military and all but demanded that the bar remain in effect (as slightly modified by don't-ask-don't-tell). Congress gave the military what it wanted.

Fortunately, I've never read an article in which a military leader blamed Congress for the policy. It's mainly outsiders trying to make excuses.

On another note, I think the Solomon Amendment is constitutional but unwise. I also think students should use peer pressure and peaceful protests (like having pro-gay rights students flooding the interview slots) to make it a waste of time for the JAG corps to send recruiters to campus.
12.7.2005 5:01pm
chris:
1. title iv and and ix force people do adopt speech they do not approve of in an incidental way. A loyalty oath is distinquisable beacuse by its nature it require adoption in full and is not merely incidental to the governement.
2. second a loyality oath is purely speech with no actual govermental interest seperate from its speech. saying people have can't prevent the army from doing its job while protesting, is obrien in a nutshell. It is not there speech that is limited only the conduct that while contianing elments of speech but baring the military from fullfilling its function. The application is so limited that its effect beyond this ruling would be very limited.
3. The court goes beyond the limits of it's ruling all the time, see crawford, see 1983 suits for tort actions by officials, where you have prove that what the official did was illegal.

I also have to disagree, this is not a speech case, this is a "compelled speech case" the doctrine has always been shakey in this ground, this whats going to be limited. more than likely they will add exceptions that they should have always added like
1. the likelyhood that the compelled speech is attritubed to you
2. you ability to counter the speech with your own

And wether you disagree or not, the fact the goverments messege is "we want you for the army" and the fact that it is properly an army reg power is important. because it can easily allow the court to dodge the question of spending, or compelled speech. The simplest solution is somtimes the best, and all the court has to say that this falls under that power, and as such is a Compelling govermental interest of exteme national imporatance, at time of war, and in addition the government is entitled as the case law states, judical defference, case done.
12.7.2005 5:05pm
Justin (mail):
1) "incidental" is both the understatement of the year and the undermining of this as a rebuttal to my response. Incidentally, this also has nothing to do with the "unrelated" aspect. Providing equal opportunities to students based on gender and race goes to the core of what a University does. Allowing JAG on campus does not.

2) second a loyality oath is purely speech with no actual govermental interest seperate from its speech

The government here is specifically concerned about the speech aspect. The Solomon Amendment is narrowly tailored to only regulate activity as incidental to the reasons for the boycott, i.e., to regulate the speech component of the behavior. The Soloman Amendment, by exempting those who are not boycotting the military due to policy differences, can be seen as regulating ONLY the speech aspect, not INCIDENTALLY the speech aspect.

This involves "compelled speech" to the degree that the university is required to use their resources to deliver the message of the army. However, that *is* incidental (much like your title iv/title ix example, tho not nearly as "incidental"). What's going on here is the government specifically saying "you can't protest the government FOR THESE REASONS, IN THIS MANNER." i.e., it is discriminating (against those who do not give "equal access" to the military) based on content (of why they are not giving such equal access). This should pose at least as difficult a problem as McConnell v FEC to one who is concerned about the first amendment and political speech without regard to other considerations (and certainly one would think that fighting corruption in government seems more important to the welfare of this country than a purely symbolic defense of don't ask-don't tell that, if anything, only HARMS the government's recruiting efforts).
12.7.2005 5:55pm
jgshapiro (mail):
Social security is not the same thing as a research grant. People are taxed to pay for the individual benefits they receive as social security recipients. True, people (unfortunately) do not own individual social security accounts, but there is a world of difference between a block grant for research and a social security payment to an individual.

Perhaps if the social security program were optional, and if you were told up front that to collect your funds down the road you could be required to sign a loyalty oath, the comparison would be similar (and the oath would be allowed), but obviously that is not the case. Likewise if the universities had already paid into an investment fund with the understanding that they would get a certain formula back, and then the Solomon Amendment was added later as a condition of getting that money. (At a minimum, you'd think they could get their original contribution back.)

Here you just have the government saying we will give you $X for research if you agree to the following conditions, one of which is: let our military recruiters use your law school career office, and perhaps, don't obstruct them when they come your law school. You can still denounce them in class, you can still lead a protest outside the room, etc., but you have to let them interview. If that is too much for you to bear, don't take the $X and do what you want. And you have the law schools saying, we can't afford not to take your money and we still want to do what we want!

The really interesting question would be if Congress forced universities to allow the recruiters in even if the universities took no money, using the power to raise armies.
12.7.2005 10:08pm
Joshua:
gab: All the briefs have been filed, and oral argument has been held. At this point, it wouldn't be pre-judging the case for the Chief Justice to have made up his mind. It would just be judging the case.
12.7.2005 10:59pm
chris:
The arguement made by FAIR was a comelled speech arguement. The statute on its face allows schools to protest what they want. The compelled speech is not incidental it is the whole case. Petitioners were argueing that because they have to make fliers and send emails that they do for every other law firm, that that made it compelled speech.
1. the flaw is that the docrtine is terrible, and made no sense, and this case pretty much showed how stupid the compelled speech doctrine is.
2. the first problem, is that no one think the schools adopt the postition of any of the law firms they promote period. (robert's point)
3. also unlike most compell speech cases, the petitioners can disavow the messege of the army (o'conner's disclaimers point
4. The solomo amendment has nothing to do with the speech of the school, only there conduct, because if they allow no recruiters on campus then they don't have to allow the military either.
12.8.2005 1:06am
Randy R. (mail):
My problem is when counsel for the government stated he wants the military to be treated just like any other recruiter on campus. That's exactly the heart of the problem -- all these universities ban ALL recruiters who discriminate against gays. in fact, the military wants an exemption from the universities policy. They want to ban gays, and still recruit in violation of their express policy.

Say what you will about the merits of the case, but it is NOT one about singling out the military for special treatment. Nor should it be.
12.8.2005 12:10pm
Tyrone Slothrop (mail) (www):
The solomo amendment has nothing to do with the speech of the school, only there conduct, because if they allow no recruiters on campus then they don't have to allow the military either.

This is exactly backwards. If there were a military need to recruit on campus, Congress would not have required schools to give the military access only where other employers have access. Any military need does not turn on the presence or absence of other recruiters. The fact that Congress drafted the Solomon Amendment in this way tells you that it was drafted specifically as a rebuke to schools which took the position that they would exclude military recruiters because of the military's exclusion of the openly gay. And, indeed, we all understand that this is what's going on this case.
12.8.2005 4:28pm