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Quick reactions to the Solomon Amendment case:

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.

Fred P:
It is noteworthy that none of the major media has read the opinion, which clearly enunciates that Congress has the Constitutional right to require the presence of military recruiters at any and all schools. And this whether it ties it to federal funding or not.

I guess reading is not a required subject in journalism classes.
3.6.2006 7:20pm
Medis:
I didn't like Dale (the case, not the poster), and I do like how this opinion limited Dale, so do I get extra points for intellectual consistency?

Anyway, I doubt this is the last word on any of the First Amendment issues. I'm just glad that the heightened deference to the claims of expressive associations appears to be gone.
3.6.2006 7:39pm
anon) (mail):
Journalists are incapable of reading. They will just repeat soundbites (usually from the losers). Their analysis of this case has been disgusting, and quite frankly, un-American. They didn't even read it!

If lawyers want to save America, they must read cases, and provide detailed analysis of them. If they open their mouths without reading them they are hurting America and helping the cause of terrorists (who also thrive on slogans).

Anyway, a real American (i.e. the kind that read the case) would know that this wasn't about the spending clause.
3.6.2006 7:39pm
Tom Holsinger (mail):
"Expressive" is easy.

Many people are "oral-expressive", while others are "anal-retentive".

Us south Germans are "anal-expressive".
3.6.2006 7:50pm
Hank:

It is noteworthy that none of the major media has read the opinion, which clearly enunciates that Congress has the Constitutional right to require the presence of military recruiters at any and all schools. And this whether it ties it to federal funding or not.


True, and the Court made no effort to defend this gratuitous dictum except to say that it derives from the war power. Does this mean that Congress can authorize the military to set up a recruiting table in my living room in the hope of inducing my kids to join the military? I am not disputing the Court's First Amendment analysis; I am saying that it should have been limited to the facts of the case, which involved Congress's exercise of its spending power.
3.6.2006 8:52pm
Roscoe (mail) (www):
I don't agree that the opinion limits Dale. Seems to me that the Court drew a clear distinction between the cases, on the grounds that (unlike the Boy Scouts and Mr. Dale) nobody was requiring Yale to "associate" with the military recruiters, but just to tolerate them for a few hours. (See the slip opinion at 19).
3.6.2006 8:56pm
LittleJ (mail):
To pick a nit, shouldn't it be "Rumsfeld v. FAIRI"? (Forum for Academic and Institutional Rights, Inc.)

Those who acronym from glass houses (or ivory towers) shouldn't throw stones.
3.6.2006 9:06pm
gerry (mail):
Assume for the moment that my daughter is a lesbian Staff Sergeant in Iraq. If she needs a lawyer to defend her against her own government, she must in the first instance turn to JAG (unless you Wall Street and Ivy League types suddenly are setting up pro bono offices in Baghdad). But JAG recruiting speech on campus has been foreclosed by faculty fiat, at least in my own law school, (Penn), and she will find no Penn lawyers to turn to.

Assume further that she is a combat soldier and is wounded in battle. Assume that Penn Medical School's premises have been surgically protected against speech by recruiters of front line surgeons.

She is thus left bleeding without medical help and suffering without legal advice, all because of political (not legal) advocacy of law professors.

Is this ethical?
3.6.2006 9:27pm
anonymyousyyy (mail):
Yeah, i'm really quite surprised this analysis didn't address the portion of the opinion that gives Congress the power to compel schools w/r/t recruiting directly, i.e., without resorting to the Spending Clause. What say you? What are Congress's powers here? Can they force a private business to hold weekly recruiting sessions? Can they force an individual to fight in a war? Erm...
3.6.2006 9:52pm
DJ (mail):
I'm afraid I'm still not convinced that FAIR limits Dale in any meaningful way. True, Dale gave groups considerable discretion in claiming (1) that it engages in "expressive association" and (2) that the state regulation at issue significantly burdens that expression. But, as I read FAIR, the Court hasn't scaled back that deference. Rather, it's limited the general scope of the doctrine (as a threshold matter) to state laws that explicitly or implicitly regulate group membership. I'm not sure that this represents a substantial break from earlier cases.
3.6.2006 10:10pm
Bruce Hayden (mail) (www):
If the military gets desperate enough for JAG officers, it can just go and draft however many it needs. Maybe the laws would have to be tweaked a bit for this, but after FAIR, I don't see a lot of opposition from either Congress or the Supreme Court over that.

I suggested in another thread that they just take the top 10% of all grads from ABA accredited law schools every year. That would royally screw up the law schools, clerkshipts, etc. that depend on the top 10%. And it would really screw up the salary structure, since the top 10% of all schools would be earning almost identical salaries.

Indeed, such a draft would be a lot fairer than what my generation faced in Vietnam, my father's generation in WWII, my grandfather's in WWI, etc. You could avoid getting drafted by not going to law school, or, indeed, staying out of the top 10% (which is why someone suggested that this would be great for gaming - how well should you do in you 1L Con law class to avoid being drafted, but still get close enough to the top 10% to get a top job). Also, as I understand it, even when we went to an all volunteer military, we continued, at least for a time, to draft doctors.

What must be remembered is that we are at war - and this war is pretty unique in our history of waging war. JAG is apparently ubiquitous throughout the fighting military right now, from reviewing bombing targets to determining whether someone can be held as an illegal combatant prisoner. In short, our civilian fixation with lawyers has worked its way into our fighting of wars. So, unfortunately, the need for bright JAG lawyers is higher now than ever before. With a long history of drafting soldiers and sailors, I was not the least bit surprised that the Court pointed out that Congress had the power to do directly through its Article I power what it was doing here indirectly, and, thus, they showed a lot of deference to the other branches here.

And, again, I make a real-politic type of point. With the country being at war, and with that war requiring larger numbers than ever before of lawyers, the Court was not about to hamstring the military, by putting up major blocks to hiring JAG lawyers.
3.6.2006 10:28pm
JLR (mail):
Professor Carpernter,

While your quick and detailed response to Rumsfeld v. FAIR is admirable, I'm afraid I do not quite follow your concerns about O'Brien and its application on Texas v. Johnson and Rumsfeld v. FAIR.

It is my understanding that Justice Brennan in Texas v. Johnson found the case to be "outside of" the O'Brien four-prong test was because Texas's interest in banning flag burning was unrelated to the interest in suppressing free expression.

The third prong of O'Brien explicitly states that a given piece of legislation is constitutional "if the governmental interest is unrelated to the suppression of free expression." U.S. v. O'Brien, 391 US 367, at 377. The Texas v. Johnson ruling by Justice Brennan thus materially misrepresents the four-prong test set forth in the majority opinion in O'Brien by Chief Justice Warren.

The third prong of the O'Brien test cannot also be "outside of" the O'Brien test.

Thus, I am hypothesizing that Chief Justice Roberts has silently and brilliantly corrected one of the Supreme Court's most glaring jurisprudential goofs: The O'Brien test has been made whole once again. Chief Justice Roberts has essentially given a silent nod to Chief Justice Warren's original test by saving it from Justice Brennan's jurisprudential mistake.

Chief Justice Roberts most certainly did not make a doctrinal error. On the contrary. Chief Justice Roberts fixed a doctrinal error. And he deserves our commendation for it.

Thanks.
3.6.2006 10:32pm
JLR (mail):
I neglected to close an Italics Tag. 'Tis especially a shame since it is an important post. Let me repost it.
---
Professor Carpernter,

While your quick and detailed response to Rumsfeld v. FAIR is admirable, I'm afraid I do not quite follow your concerns about O'Brien and its application on Texas v. Johnson and Rumsfeld v. FAIR.

It is my understanding that Justice Brennan in Texas v. Johnson found the case to be "outside of" the O'Brien four-prong test was because Texas's interest in banning flag burning was unrelated to the interest in suppressing free expression.

The third prong of O'Brien explicitly states that a given piece of legislation is constitutional "if the governmental interest is unrelated to the suppression of free expression." U.S. v. O'Brien, 391 US 367, at 377. The Texas v. Johnson ruling by Justice Brennan thus materially misrepresents the four-prong test set forth in the majority opinion in O'Brien by Chief Justice Warren.

The third prong of the O'Brien test cannot also be "outside of" the O'Brien test.

Thus, I am hypothesizing that Chief Justice Roberts has silently and brilliantly corrected one of the Supreme Court's most glaring jurisprudential goofs: The O'Brien test has been made whole once again. Chief Justice Roberts has essentially given a silent nod to Chief Justice Warren's original test by saving it from Justice Brennan's jurisprudential mistake.

Chief Justice Roberts most certainly did not make a doctrinal error. On the contrary. Chief Justice Roberts fixed a doctrinal error. And he deserves our commendation for it.

Thanks.
3.6.2006 10:35pm
Bruce Hayden (mail) (www):
anonymyousyyy

Of course Congress can force people to fight. They did it in Vietnam, in Korea, in WWII, in WWI, and in the Civil War. Its called the draft, and it has a long history in this country. And that is why any claims of forced association were destined to fall on deaf ears here - drafting people to fight wars they don't want to fight is clearly much more, by orders of magnitude, forced association and compelled speech, than the Soloman Amdt. ever could be.
3.6.2006 10:37pm
Pio (mail):
What say you? What are Congress's powers here? Can they force a private business to hold weekly recruiting sessions? Can they force an individual to fight in a war? Erm...

Out of curiosity, has the Supreme Court ever addressed the constitutionality of the draft? A plain-English reading of the 13th amendment (no slavery involuntary servitude except for as punishment for a crime) would seem to preclude a draft. I'm a layman, so forgive me if there is anything obvious I am overlooking here.
3.6.2006 10:46pm
bluecollarguy:
Pio,

"Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement." Chief Justice White, Arver v United States, 1918.




3.6.2006 11:07pm
JLR (mail):
Let me just add that in the blog comment I sadly made a typographical error regarding Professor Carpenter's last name. My apologies for the error.

Despite the emphasis on being the first in a comment thread to provide a given insight, it is crucial that precision not get shortchanged for speed. Once again, my apologies for both the italics tag error as well as the misspelling of Professor Carpenter's last name.
3.6.2006 11:27pm
NP (mail):
I think JLR brings up a good point. In Brennan's Johnson opinion, one must ask whether the governmental interest was related to the suppression of speech before deciding whether to apply the O'Brien test -- which also asked whether the governmental interest was realted to the suppression of speech. Why not just apply the O'Brien test, and if the governmental interest is related to the suppression of speech, apply strict scrutiny. Johnson could have (should have?) been decided this way, so it makes sense for Roberts to have made the correction now.
3.6.2006 11:47pm
Kovarsky (mail):
i have not read the opinion yet. is the "inherently expressive" rationale limited to the free association cases, or is this something that could bleed into some of the campaign contribution issues that at least peripherally involve association issues.
3.6.2006 11:51pm
Thomas Roland (mail):
Hank: "the Court made no effort to defend this gratuitous dictum...."

Does the court sometimes charge for its dicta? And should it be obligated differently to defend gratuitous versus compensated dicta?
3.7.2006 12:27am
Ivory Tower Dzhugashvili (mail) (www):
I almost always believe more speech is better. In the crushing academic Stalinism which permeates higher education, their sudden interest in free speech seems mighty disingenuous. Many schools have booted the face of student editors who published the Mohammed cartoons.

Some of the "academics" likened cartoons to yelling "fire" in a crowded theater. To me, this suggests serious misunderstanding or outright malicious manipulation of the law to suit their political agenda.

Issue:

Whether the reasonable man runs screaming from his home to torch an embassy when he reads an offensive Hagar the Horrible?

Let's ignore the whole "most people don't want to burn to death" for one moment. That's just too obvious.
3.7.2006 1:07am
HTML BOT:
italics off
3.7.2006 1:42am
Medis:
DJ,

I'm not sure I understand your post. Suppose that FAIR limits the deferential reasoning in Dale to actual membership cases. Why isn't that a meaningful limit on that deferential reasoning?

I guess you are saying that we already knew that limit to the scope of Dale's deferential reasoning existed. But where exactly was that limit stated before?
3.7.2006 3:54am
Cornellian (mail):
Assume for the moment that my daughter is a lesbian Staff Sergeant in Iraq. If she needs a lawyer to defend her against her own government, she must in the first instance turn to JAG (unless you Wall Street and Ivy League types suddenly are setting up pro bono offices in Baghdad). But JAG recruiting speech on campus has been foreclosed by faculty fiat, at least in my own law school, (Penn), and she will find no Penn lawyers to turn to.

Were your daughter actually a lesbian and actually in the military, she'd know about the SDLF.
3.7.2006 6:45am
Guest44 (mail):
Oh man, I wish Congress would try to set up recruiters in our living room. It's about time to breathe some life into the 3rd Amendment.

As long as they stay out of the living room, it sounds like Congress is in the clear.
3.7.2006 6:58am
Sam (mail):
The US armed forces do set up recruiters, in almost everyone's living room and automobile. They're television and radio advertisements.
3.7.2006 7:44am
Cornellian (mail):
Such a draft policy would never work unless you also abandoned DADT, at which point the issue would be moot since military JAG's would then be free to recruit on college campuses. (Yes, they're free as of the date of the Solomon decision but it remains to be seen what law schools will do by way of exercising their own free speech rights in opposition to such recruitment).

If the military gets desperate enough for JAG officers, it can just go and draft however many it needs. Maybe the laws would have to be tweaked a bit for this, but after FAIR, I don't see a lot of opposition from either Congress or the Supreme Court over that.

I suggested in another thread that they just take the top 10% of all grads from ABA accredited law schools every year. That would royally screw up the law schools, clerkshipts, etc. that depend on the top 10%. And it would really screw up the salary structure, since the top 10% of all schools would be earning almost identical salaries.
3.7.2006 8:07am
Clayton E. Cramer (mail) (www):
Hank asks:

Does this mean that Congress can authorize the military to set up a recruiting table in my living room in the hope of inducing my kids to join the military?
If you are regularly in the practice of inviting just about anyone into your living room to recruit your kids for jobs, probably.

You know, if there is anything that better typifies liberalism's disconnect from reality, it is the notion that law schools are so not a part of our society that they can exclude the military from recruiting. In case this is a surprise, the defense of a nation is about as core of a governmental function as there is. Believe me, if there was a way to exclude Harvard Law from the protections of the U.S. government, I would be all for it. A little reality would go a long ways towards solving these fantasies.
3.7.2006 10:02am
Hank:
Law schools are no more federal property than is my living room. If the Court has a basis to distinguish the two, it didn't say what it was. It did not say that a school that allowed no recruiters could keep out military recruiters. I realize that, as a practical matter, if Congress authorized recruiters to enter private homes without the owner's consent, the Court would probably create "a man's home is his castle" exception, as it did with regard to possessing obscenity. I think that to allow the military on campus under the war power raises an obvious Fifth Amendment "liberty" issue, which the Court should have addressed since it brought up the issue.
3.7.2006 10:41am
Daniel San:
I agree that the expressive conduct doctrine is a mess. But the flag buring cases are not the best example. In those cases, government banned conduct based on the expressive context. Respectful burning of soiled or tattered flags was not banned (as by the VFW or Girl Scouts) was not banned. It is the expression of comtempt that we don't like, and that is Constitutionally protected.

Distinguishing Dale is an exercise in line drawing. Dale says organizations have a First Amendment right to certain choices in selecting their leaders. The slippery slope asks: What about their members? What about visitors to their meetings? Their vendors? There may not be a clear doctrinal reason for drawing the line at a particular place, but there is certainly a rational distinction.
3.7.2006 10:48am
Medis:
Daniel San,

I agree that expressive association cases will inevitably require line-drawing. As is often the case with line-drawing problems, it is therefore crucial to determine who gets to draw the lines and on what bases. I take Professor Carpenter to be suggesting that FAIR implied somewhat different answera to those questions than we had seen in Dale.
3.7.2006 11:22am
DJ (mail):
Medis, I agree that FAIR's apparent limitation of the expressive association cases to membership cases could be significant (although I'd point out that Dale and Roberts and New York State Club and Duarte were all membership cases). But that, it seems to me, is completely separate from the deference question. I do not read Dale or those other cases to require courts to defer to a group's claim that the regulation at issue pertains to membership. Indeed, the Court makes precisely the opposite point in FAIR: "A speaker cannot erect a shield against laws requiring access SIMPLY BY ASSERTING that MERE ASSOCIATION would impair its message."

But, as Dale held, deference IS to be applied to the questions of whether the a group's activities are expressive in nature and whether the regulation impairs that expression. And because FAIR distinguished away Dale and other expressive assocation cases by neatly concluding that the doctrine doesn't apply where there's simply "mere association", I submit that the Dale deference standards have survived intact.
3.7.2006 11:43am
Medis:
DJ,

I'm not sure I followed your post, but we might be agreeing while using different terms.

I would suggest this: given the reasoning as stated in Dale, it was possible to interpret Dale as requiring a court to defer to an expressive association on the issue of whether a regulation impaired their expressions even where the regulation did not directly impact a membership decision. We might call this the "strong form of Dale deference," and it was this strong form of Dale deference on which the Third Circuit had relied in FAIR.

Although I'm not sure this is the correct interpretation of FAIR, I take you to be suggesting that after FAIR, courts are still required to exercise Dale deference to regulations that directly impact membership decisions, but courts are not otherwise required to exercise Dale deference when an expressive association claims that a regulation would impair its expressions. I might suggest that we call this adopting a "weak form of Dale deference" rather than the "strong form of Dale deference". And if you don't like those terms, feel free to substitute your own.

Using these terms, I'd say that decision alone--adopting the weak rather than strong form of Dale deference--places a significant limitation on the reasoning in Dale. And I understand you to be agreeing that is a significant limitation, even though such a limitation would in fact leave Dale deference "intact" within those limits (and, of course, Dale itself fell within those limits). So, perhaps we can agree on that much.

I'd further suggest--and here I understand we disagree--that I am not at all sure that even the weak form Dale deference really remained intact in FAIR. For one thing, the Court in FAIR makes no mention of what we are calling "Dale deference" at all. For another, while the Court distinguishes Dale on that ground (that it involved a membership decision), the Court also notes that "the freedom of expressive association protects more than just a group's membership decisions." But the Court did not suggest that two different standards would apply depending on whether or not the claim involved a membership decision.

But that said, I certainly don't take FAIR to have decided that issue (whether Dale deference would still apply to future membership-decision cases). Nonetheless, I would note that insofar as FAIR did not reaffirm "Dale deference" in any way, and given the changes in the composition of the Court since Dale, I am reasonably hopeful that "Dale deference" may ultimately be limited to Dale itself. But we shall see.
3.7.2006 12:46pm
DJ (mail):
I like your terms, Medis, and I'm pleased that my sloppy posts were at least clear enough to make my central point. I agree with much of what you say, but I'd add this: In distinguishing Dale and other expressive association cases, FAIR singled out both direct and INDIRECT regulation of group membership. So I think the category of cases that would trigger "strong Dale deference" is somewhat larger than you suggest--and the "weak form" concomitantly smaller.

Perhaps we can finally agree that FAIR left the question of deference for another day. And, judging from this discussion and the comments of Prof. Carpenter and Marty Lederman (who are way, way smarter than me), it looks like you've got at least a colorable argument there.
3.7.2006 1:22pm
gab:
We are not in an "...era of annual federal budgets approaching $3 trillion..." as the post states and I quote.

We are in an era of annual budget deficits of around $350 billion, with a total US deficit of approx. $10 trillion if memory serves.

I know the numbers are big, but that's a pretty big miss.
3.7.2006 1:36pm
Medis:
DJ,

There is indeed a discussion in FAIR of regulations that would indirectly affect membership by making group membership "less attractive." But insofar as that issue was not raised in Dale (as far as I recall), I think it was already an open question whether or not "Dale deference" would apply to such a claim. And I note this interesting sentence in FAIR (complete with semi-colon):

"Students and faculty are free to associate to voice their disapproval of the military's message; nothing about the statute affects the composition of the group by making group membership less desirable."

I see no hint here of deference to FAIR on this issue. Indeed, the Court seems to be specifically adopting Breyer's "The remedy for speech you don't like is not less speech. It is more speech" principle (Justice Breyer, of course, was a dissenter in Dale).

So, I would think that you would need to continue to distinguish direct membership regulations from these indirect-impact regulations if you want to preserve Dale deference at all. Otherwise, it would seem that the Court is indeed dropping Dale deference entirely.
3.7.2006 2:06pm
Richard M:
Gab: Re-read the post, "...annual federal budget". =OUTLAYS, != OUTLAYS minus RECEIPTS. According to the OMB spending is projected at $2.7 trillion in 2006.
3.7.2006 3:58pm
JLR (mail):
First, let me thank NP for his concurrence. It is much appreciated. :-)

Second, let me rephrase my earlier comments in a concise form:

Based on reading the unanimous opinion in Rumsfeld v. FAIR, I am deducing that Chief Justice Roberts corrected, rather than committed, a jurisprudential error in his analysis of the line of symbolic speech cases.

It is my contention that Justice Brennan's majority opinion in Texas v. Johnson empirically misunderstood and misused the O'Brien test.

Justice Brennan in Texas v. Johnson found the case to be "outside of" the O'Brien four-prong test because Texas's interest in banning flag burning was unrelated to the interest in suppressing free expression.

The third prong of O'Brien explicitly states that a given piece of legislation is constitutional "if the governmental interest is unrelated to the suppression of free expression." U.S. v. O'Brien, 391 US 367, at 377. The Texas v. Johnson ruling by Justice Brennan thus materially misrepresents the four-prong test set forth in the majority opinion in O'Brien by Chief Justice Warren.

The third prong of the O'Brien test cannot also be "outside of" the O'Brien test.

Chief Justice Roberts in Rumsfeld v. FAIR appears to have silently and elegantly corrected Justice Brennan's jurisprudential error.

The fact that Chief Justice Roberts has restored some logic back into the symbolic speech jurisprudence is, in my opinion, a sign of good things to come for the Roberts Court.
3.7.2006 4:44pm