Several quick reactions to today’s unanimous decision by Chief Justice 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 supression 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 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 had 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 recuiters' 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 Tr. of Oral Arg. 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.