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More on the Solomon Amendment case:

My post on Rumsfeld v. FAIR three days ago prompted a thoughtful response from Robert Corn-Revere, a noted First Amendment lawyer, who's more optimistic about the decision than I am. That led to a further exchange between us, hosted by the First Amendment Center. The entire exchange can be read here.

Medis:
That was an interesting exchange, but I have to say I don't quite understand Corn-Revere's "private groups" versus "public institutions" distinction. In particular, I am not sure how he sees a distinction between the Boy Scouts and a private university, particularly in light of cases like Roberts v. United States Jaycees.

Rather, it seems to me that Carpenter is right that insofar as there is some variable controlling whether the Court will show deference to the group's claims, the relevant variable cannot be the nature of the group in Corn-Revere's sense. Of course, maybe the deference shown in Dale was just a one-off event.
3.9.2006 2:58pm
gerry (mail):
Help! I have read these tantalizingly brilliant exchanges, but they don't even aproach the fundamental issues implicit in, and recognized in, the eight zip decision, which in actual, real, practical terms are as follows:
1. My daughter, a lesbian second lieutenant in Iraq, needs a JAG lawyer to defend her against government intrusion into her private life. She prefers a Penn or Harvard or Yale lawyer, but JAG speech for recruitment has been boycotted preemptively by, of all people, law professors, by institutions of law, for, of all reasons, a statutory "don't ask, don't tell" enactment. (Small consolation to the ten thousand gays and lesbiants in uniform with no access to JAG lawyers.) Will she go to jail for lack of competent and preferred personal counsel?
2. My daughter, a lesbian second lieutenant in Iraq, is lying bleeding on a battlefield and calling for help, only to learn that no doctors are available: Penn and Harvard and Yale medical schools have boycotted recruitment of MASH doctors, because of "don't ask, don't tell". Will she die in sacrifice to selfrighteous constraints on recruitment speech imposed by, of all people, educators?
3. Since there was no settled law against "don't ask, don't tell", should law schools, of all institutions, take the law into their own hands for purely political objectives as a matter of purely political "protest",(no matter how idealistic) when other and better avenues of protest abound.
4. Granting that "don't ask, don't tell" very arguably, no, strongly arguably, is a pernicious policy, in depth and on its face, why hasn't the policy AS SUCH been litigated and overturned by a worthy client using brilliant Ivy League representation?
a. Surely an apparently evil governmental policy, as such, would be overturned in regular court processes unless it is an area where in the precise circumstances of its applicability, reasonable minds could differ about its legitimacy. Is that possible? Or have you law professors at long last stumbled upon one political area where only one opinion ---yours---counts?

Finally, is it the lawyer, or the client, who is important to these issues?
3.9.2006 3:40pm
Medis:
gerry,

The issues you raise aren't being discussed because for the most part they are not actually relevant to the Court's decision in FAIR.

But for what it is worth:

On (1) and (2): the schools were not prohibiting their students from joining the military after graduation, nor even prohibiting the military from recruiting their students. Rather, they were just refusing to give military recruiters "equal access" with respect to oncampus and other school-sponsored recruiting.

On (3): particularly for private schools, what sorts of political lobbying, protests, etc., they want to engage in is up to them, and whether law schools taking on the job of protesting DA/DT is wise or effective is pretty far outside the scope of this discussion. But I might note that the Court did not suggest that they should not protest DA/DT, but rather held that their ability to protest in more direct ways did in fact undermine their claim that they had to protest in this particular way.

Finally, on (4) and (a): I'm not sure where legal action on DA/DT stands, but I might note that not all things which are bad policy, and indeed not all things which are immoral, are illegal.
3.9.2006 4:12pm
Steve:
I guess you can always construct an argument where, somewhere out there, a child is dying because of the thing you're complaining about, but I nevertheless congratulate Gerry on producing a particularly fine example of the genre.
3.9.2006 4:28pm
KMAJ (mail):
It seems this argument is narrowed down, in simple terms, to a definition of a private organization versus a private institution. Does the role of 'public (federal) funding' create a different definition and/or situation ? Does the acceptance of public funds create a different center of balance in the decision ? Though I don't think 'Rumsfeld' directly addressed the latter issue, I wonder if it played a part. In other words, if these institutions were not recipients of any public/federal money, would the decision have been different ? I have seen some proffer the opinion that this ruling allows Congress to force private institutions, even if they do not accept those funds, to give equal access to all. How does this ruling apply towards discrimination through selective restriction of access ? Where does freedom of expression end and discriminatory practice begin ? Is this ruling narrowly tailored enough that it leaves open questions for cases that might involve varyingly different circumstances ?
3.9.2006 4:46pm
Mobius (mail):
"the schools were not prohibiting their students from joining the military after graduation, nor even prohibiting the military from recruiting their students. Rather, they were just refusing to give military recruiters "equal access" with respect to oncampus and other school-sponsored recruiting."

This brings up an interesting argument. DA/DT does not expressly prohibit homosexuals from serving in the military, it merely states that the Government can't ask, and the military member is restricted from saying. This sounds a lot like the above argument. So if we allow Law schools to exclude the military, wouldn't they be performing the same discriminatory act the military is performing?
3.9.2006 5:00pm
dk35 (mail):
Mobius,

I do not see those arguments as analogous. The analogous argument, rather, would be if the law schools said to its students, "We are not expressly prohibiting you from going to interview with JAG, and will not ask you if you have done so, but if you tell us that you in fact have interviewed with them, then we will expel you."
3.9.2006 5:35pm
Cornellian (mail):
The hilarious thing about the hypo is the notion that JAG lawyers are there to protect soldiers against "government intrusion into their private lives."

Anyway, any comments about the California Supreme Court decision that came out a day or two ago upholding the right of some state agency to withdraw a docking fee subsidy from the Sea Scouts (some kind of naval affiliate of the Boy Scouts) for refusing to abandon their policy of denying membership to gays and atheists? I assume they would have wanted the parties to brief FAIR v. Rumsfeld, but I haven't read the decision.
3.9.2006 6:29pm
Don Miller (mail):
Is there a threshhold at which a college/university is no longer private if it accepts a certain percentage of government funding?

I know legally the difference between private and public institutions is how they were founded and who holds title.

The funding part bothers me though. Public institutions are further defined because they become a line item on a state or local government budget. They get a direct percentage of tax dollars.

Private institutions compete for my tax dollars too though. Most of their government funding comes from grants and research contracts, not direct funding. But occassionaly a congressman will slip a special project into the federal budget for a specific institution.

Major private universities trying to win research contracts are not the equivalent of a hungry single mother and kids trying to get food stamps. Is it really unreasonable for the Government to ask for campus access as part of this kind of funding? Remember, the private university's could wean themselves away, if they wanted to.
3.9.2006 7:01pm
sam24 (mail):
Forget government funding, a very thorny item not addressed here. Is the behavior of Yale an obstruction to congress in its Art 1 mandate to raise military etc? A private individual may not be much of an obstruction, but at what point does a large institution, private or not, become an obstruction to the congressional Art 1 duty and therefore in violation of the law? Then perhaps lawyers don't count re the military.

South of fly over country MD
3.9.2006 8:14pm
JB:
While it's reasonable for the government to recieve the same recruiting rights as any other employer, I got the impression from Dale's post that the issue was with the nature of the decision, i.e. the reasoning behind it and what that means for legal guidelines in future cases.
3.9.2006 8:26pm
She elah (mail):
Could someone please persuade me that the following proposition is false (because I'm having a hard time persuading myself):

The First Amendment, as currently construed by the courts, protects anti-gay people, but not gay people.
3.9.2006 8:41pm
DWPittelli (mail) (www):
She elah,

The proposition is false. Imagine that roles were reversed: the military allowed in gays, but, say, Jerry Falwell Law School only allowed in recruiters who did not hire gays. The Solomon Amendment would then force Jerry Falwell Law School to allow in military recruiters on the same terms as anybody else, under this precedent.
3.9.2006 9:27pm
Kovarsky (mail):
Is the behavior of Yale an obstruction to congress in its Art 1 mandate to raise military etc?

Not under any legislation or precedent of the Supreme Court, but maybe according to Bill O'Reilly.
3.9.2006 10:08pm
Bobbie:
I think my favorite premise of gerry's argument is that if you don't get a lawyer from your preferred law school, then you can argue that you've been denied access to counsel.

He's also posted this "hypo" on this blog on at least two other occasions, so I doubt he's looking for reasoned responses to his question, which he has now received three times.
3.9.2006 10:11pm
Kovarsky (mail):
She elah:

I actually think the statement is incorrect, but as a matter of formal presentation, not instinct. It should be closer to "The First Amendment protects anti-gay people, but other equally clear constitutional Amendments do not protect gay people."
3.9.2006 10:16pm
Kovarsky (mail):
Bobbie,

I don't want to speak to soon, but does gerry really have a lesbian daughter, or is that just a viciously manipulative device in service of a legally inaccurate argument?
3.9.2006 10:18pm
Mikeyes (mail):
Don't forget that there are no MASH units anymore either and that the services have their own medical school to supply doctors.
3.9.2006 11:03pm
WB:
Gerry is actually Dick Cheney. He's been having a rough time since that Whittington incident, but I think everything will be ok.
3.9.2006 11:31pm
Dave Hardy (mail) (www):
Could someone please persuade me that the following proposition is false (because I'm having a hard time persuading myself):

The First Amendment, as currently construed by the courts, protects anti-gay people, but not gay people.


Easy enough. Congress enacts a statute denying federal funding to educational institutes that discriminate against gays, and the court upholds it as a legitimate exercise of the power to tax and spend, despite a college's assertion of its (or its students') right to choose to associate only with heterosexuals.
3.10.2006 12:07am
Kovarsky (mail):
Dave,

That's not a good example. Congress couldn't do that under current taxing and spending authority.
3.10.2006 12:30am
sam24 (mail):
To Mikeyes--
The military has one medical school in Bethesda, Maryland. It makes up the current deficit by offering aid to medical students and aid in postgraduate training. During the Vietnam war the draft made up the difference. I know, as during that period I had served 8 years as a naval officer on active duty and in the ready reserve and had been honorably discharged. The day I graduated from medical school I was reclassified to 1A. I was not drafted, but only by the draw. Several of my classmates were including one who was on crutches as a result of childhood polio.
3.10.2006 2:03am
gerry (mail):
Medis: Your argument is that separate but equal is equal? Obviously, my factual premise is that a principle function of JAG lawyers is the representation of individual soldiers, without fee, frequently against the government. (Clients do matter.) Cornellian finds that "hilarious," but offers absolutely no support for that hilarity. Your statement that the plight of a JAG CLIENT in the military is "not actually relevant" to FAIR speaks volumes.
Several responses seem to admit that "don't ask, don't tell" has never been successfully challenged as unlawful, which seems to establish that the concerted effort of the law academia in this instance is not to enforce a legal principle but rather a political one. Will another generation of law teachers be rallying and boycotting for right wing political causes,and ignoring the needs of individual clients? One hopes not.
3.10.2006 8:02am
dk35 (mail):
Gerry,

If you are so concerned about your lesbian daughter, I assume you have already written to your Congressman and urged him/her to sign on as a co-sponsor of the Military Readiness Enhancement Act, which is currently pending in committee. This bill would revoke the Don't Ask/Don't Tell policy, and would allow gay men and women to serve in the military without having to lie about who they are.

Then, of course, everyone wins. Your lesbian daughter most of all.
3.10.2006 10:13am
Mikeyes (mail):
sam24,

I think I met your classmate at NAS Jax during my first tour of active duty in the early '70s. For those of you not familiar with the doctor draft, students were given the choice of "volunteering" and finishing residency, maybe, or being drafted out of internship. Being from Tennessee (with its 100% doctor draft) I volunteered. The only way you could get out of the draft as a doctor was to be legally blind or an insulin dependant diabetic.

Even now, NG and Reserve doctors are mostly on active duty which accounts for the problems the services are having in recruiting. In the first Gulf war my unit lost three doctors due to refusal to go or, in one case of an active duty physician, fraud (he faked a heart attack.) But for economic and patriotic reasons, medical students and trainid physicians still take the shilling and join up. If they did not, then conditions might be met for a specific physician draft which is still on the books (along with the regular draft.)

At least the lawyers don't have to worry about that.
3.10.2006 10:21am
Medis:
gerry,

I'm not sure where you are getting the "separate but equal" line from. My point was that your lesbian daughter could in fact still get her Ivy-League-educated lawyer or doctor (whether or not that is a good thing), because the schools did not prohibit their graduates from joining the military, nor even prohibit the military from recruiting their graduates. Of course, the military did not get equal access to the schools' resources and property for recruiting purposes, and I didn't claim that it was equal access. But your hypo seems to be based on general prohibitions which did not in fact exist.

As for the relevance of your concerns: for the most part, while your concerns may be relevant to various policy decisions, they really aren't relevant to the legal issues in this particular court case. As I have noted elsewhere, it is important to keep in mind that judges are not roving, free-form policymakers, but rather are supposed to be deciding just the cases and controversies before them. And again, not everything which is bad policy or even immoral is illegal. These principles, of course, cut many ways, but they are nonetheless important principles to keep in mind when discussing court cases.

Finally, I actually don't think it makes sense to say that law professors should not engage in political lobbying. Another point that may be worth remembering is that litigation is not the only field for lawyers. Lawyers also participate in things like legislation--as drafters, policy-makers, and sometimes even elected officials--and also in the enforcement and execution of the laws. In that sense, not just what the law is, but also what the law should be, and how the law should be enforced and executed, are all valid questions for law professors to consider.

So, if law professors have strong feelings about these matters, I see no reason why they should not lobby for those results. And yes, once again, I think that principle applies to all law professors regardless of their political persuasion.
3.10.2006 10:42am
gerry (mail):
DK3: A good point, and I will obtain a copy of the legislation. BUT why is this legislation necessary in the first place? Having been a litigator for decades, what I fail to understand is why these brilliant academic minds couldn't challenge "don't ask, don't tell" ---as such and on behalf of a disappointed applicant, --- in a proper forum, with lay and expert testimony and documentation as UNLAWFULLY discriminatory, demonstrating its arbitrariness and unfairness and thus mooting all of this blather. That's what lawyers do, and courts do, isn't it? Why must we leave that to legislators? And wouldn't such a challenge be more honorable than law schools and faculty members preemptively ganging up to foreclose...think of this... another lawyer's opportunity to SPEAK at a law school? Astounding, that!
3.10.2006 10:49am
Tal Benschar (mail):
One thing which I have not seen discussed with respect to the recent decision is the part of the Solomon Amendment which provides an exception to insitutions with a "longstanding policy of pacifism based on historical religous affiliation." Isn't the existence of that exception a tacit admission that permitting military recruitment on a school campus does, to some extent, show tacit support for the military — which would be contrary to the traditions of such pacifist schools? If a pacifist-tradition school has such an exception, why should not the more secular law schools who disagree with a particular military policy? (Or is the "religious" part of the statutory exception based on the Free Excercise clause, and hence a different issue entirely?)

In any case, while I personally do not sympathize with the stand taken by FAIR, it seems that the Govt. here is allowing some forms of dissent or disagreement while not others.
3.10.2006 10:58am
gerry (mail):
Medis: 1. Hooray for law professors fighting for political ideas out on the street with the rest of us heathens, but engaging the power and prestige of their INSTITUTIONS, whose students and alumni (maybe even teachers) hopefully have widely varying points of view, to press their own preferred political ideas is, frankly, scary as hell.
2. At Penn a JAG recruiter is forbidden equal access on recruiting days at the law school, but may speak to the students elsewhere, on the theory, plain and simple, that separate access is equal access. If the faculty requirement that a student slink across campus to talk to JAG is meaningless, why are they doing it?
3. Please see my response, above, to DK3. Challenging DADT in a proper forum as arbitrary doesn't seem all that difficult, based at least on the testimony here.
3.10.2006 11:11am
dk35 (mail):
Gerry,

I'm glad you are going to check out the legislation.

Regarding your response to Medis, with all due respect I think you are leaving out one important piece of the puzzle, which is the Law Schools' responsibility to its own students.

You need to keep in mind that a private law school is in some sense a business, and a business has a responsibility to its consumers. In addition, a business has a need to keep its consumers happy for its own economic self-preservation.

So, let's go back to your lesbian daughter for a second. Say she decided to enroll in a private law school. In order to do so, of course, she ponies up her $35 K for a year's tuition. Now, is it fair that a school would spend the money it collects at least partly from your daughter's tuition in such a way that your daughter has less opportunity to benefit from those expenditures than your daughter's straight fellow student? If I in your daughter's position, I would march to the Dean's office and demand one of two things: 1) Give me some of my money back; or 2) spend some of your resources on things that benefit only gay people to balance out the resources that you are spending that only benefit straight people.

So, if you are a private law school, what do you do? They have three choices. First, they can simply say "tough luck" to their gay students. In this sense, they clearly are offering gay students less bang for their buck as they do to their straight student. Is that really what you would want for your lesbian daughter? Secondly, they could reduce their gay students' tuition/spend extra resources balancing out the discrimination. Of course, they would have to pass those costs onto the students (i.e. tuition increases). Finally, they could say to all recruiters who want the university to expend its resources on them that they will do so only if the recruiter gives an equal opportunity chance to gay and straight students alike.

Finally, briefly, regarding legal challenges to DA/DT itself. First, such challenges are currently winding their way in the courts (Cook v. Rumsfeld in Mass. Fed. District Court, and I think there are one or two others elsewhere). Secondly, chances of a direct legal challenge are sadly not too good, for the very reason why FAIR just lost. The Supreme Court gives great deference to Congress with regard to making military policy. I mean, how can we expect this court to rule the Congress' hiring policy for the military is unconstitutional if we can't even get the court to hold that the government has the right to make private institutions complicit in its distriminatory hiring practices?
3.10.2006 12:23pm
Medis:
gerry,

On (1): I don't find these institutions particularly scary, but I do think there is an inherent problem with the "expressive association" idea as it was developed in Dale. Basically, I also don't think we should simply be deferring to the people with controlling positions in these sorts of organization--eg, the national leadership of the Boy Scouts, or the administration of a law school--on the issue of whether they are in fact speaking for the members of their organization. So, as noted elsewhere, I'm quite glad that FAIR lost, in part because I saw Dale as a bad decision.

That said, if a private law school really wanted to adopt a singular message on a particular issue, and they made that fact clear in advance to prospective students, faculty, and so on, and had adequate procedures in place to ensure that the school as a whole remained in control of the message in some sort of representative fashion, then I don't see any particular problem with a law school, rather than any other sort of institution, dedicating itself to such a task.

On (2): I don't know whose "theory" you are describing, but it isn't mine--I never said the military recruiters had equal access. Indeed, to my knowledge the law schools never claimed as much either, although I don't know everything they argued.

On (3): I'm not sure why you think litigation is the only, or the most, appropriate forum in which to challenge DA/DT. As I noted before, there are lots of ways to shape law, and law professors are not somehow limited to proposing litigation as a possible remedy for laws they would want to change.

But I do agree with you--and Justice Breyer--that ultimately the proper remedy for speech you don't like is more speech, not the elimination of the speech of others. Again, in that sense I thought Dale was wrongly decided, and I applaud the Court in FAIR for reestablishing that principle.
3.10.2006 1:06pm
gerry (mail):
DK: This is my final post, no doubt to the relief of my younger colleagues in thelaw
You say: "Regarding your response to Medis, with all due respect I think you are leaving out one important piece of the puzzle, which is the Law Schools' responsibility to its own students."
And therefore? Therefore law schools should enter the political fray over issues which the legal process has in fact not decided? (Huh?) The law school's principle responsibility is not to (a professors presumed judgment about) "its own students", whatever may be the passing political issue of the time (in our system, an issue pretty certainly to be decided reasonably in due course by democratic and due process)! Students are students. The law schools' responsibility is to the constitution and the rule of law, to its people, to CLIENTS, to THE working LAW, with all of its parsing of sentences, which means, most fundamentally, yes, to your STUDENT'S EVENTUAL CLIENTS. CLIENTS!
What has been done here is an intellectual adventure in which law teachers have identified an entire class of their students' eventual clients as pariahs, as unworthy of strong, proud, aggresive representation because of a political issue of the moment, by muzzling speech, by separate but unequal access. The underlying issue itself is an otherwise fundamental and important issue, of course, and one to be pursued honorably through legal and political process, (I would love to have taken that case and I believe I could have won it!) but didn't we agree a couple of hundred years ago not to foreclose lawyers' representation based on their personal or political acceptability?
Medis: "then I don't see any particular problem with a law school, rather than any other sort of institution, dedicating itself to such a task." OK: as re Law professors? Right! By way of lobbying for legislations and donating free services to litigants to challenge the status quo ? Sounds great to me. But INSTITUTIONS? Don't INSTITUTIONS have more power than individuals? Of course they do! So? How dare you invoke the power of my law school to pursue by champerty an issue which has NOT been pursued through appropriate process, EVEN IF IT IS AN ISSUE WHICH SHOULD BE WON IN PROPER PROCESS, and an issue on whose merits I happen to agree.
Well, the FAIR case is a heavy loss for my lesbian military daugher, and for every homosexual in or hoping to be in, the military: you stratospheric thinkers (as usual) chose the wrong issue in the wrong forum at the wrong time. Let me offer a principle hard-learned out of a lifetime of litigation practice: a Motion unmade is a Motion unlost! Jot that down.

Well, I'm signing out of all of this by this final 'POST', but in parting let me note that I remember the Nazi invasion of Poland, and I remember Pearl Harbor, and I remember the communist infiltrations after WWII and I remember our nation's stupidly excessive fascist responses, and I remember Korea and all of the political, not military, blunders of Viet Nam, and came out of all of that with only one gospel: when you are certain you are right you are wrong. Here you have lost sight of your fundamental roles, professionally and ethically.
Kids in the military including my lesbian daughter have as much right, (no MORE right) to access to well educated lawyers as anybody else. This luxurious exercise, with all of its doubletalk, screens an ethical betrayal, a cowardly retreat from the lawyer's most profound responsibilities to clients in need, to the law.
Good night and good luck.
3.10.2006 9:57pm
Pyrthroes (mail):
Law Professors citing Law Professors call to mind the old saw, "Windows listen only for the sound of breaking glass." Of course this Solomon Amendment controversy is not about "law" at all, but politics pure-and-simple. Its ostensible rationale, the Outing of Queerities, is also a complete canard. Let's face it, as we know directly from postings on the Yale Law School bulletin board, these elite (sic) faculties espouse an extreme-Leftist hate-America, anti-military, death-to-discourse ideology whose ends justify any means whatever.

The George Mason University legal faculty is no more literate or sentient than Yale's in the law profession's typical kindergarten sense. Even a Law School prof can parse Solomon in less than 5 - 10 years. But so what? Where PC meets Dracula in Frankenstein's Tomb at Yale, legal acumen takes Rosa Parks' back-seat to the most dishonest subterfuges of which BLMs (brilliant legal minds) are capable.

Were this the Brennan Court, everyone knows that this famous Ruling would have been precisely opposite. And that, my Amicus Curiae friends, is why "law" in general and Law Professors in particular are held not merely in disdain but in genuine contempt. "False pretenses" says it all... to assert with a straight face that "jurists" uphold The Law is a sad joke: They vote their (usually hard-Left) prejudices without a grain of conscience, and then lie about it. "Solomon" is only the latest instance in a long, long line.

The Founders instituted a Supreme Court as arbiter of Legislative folly, to insulate and protect the citizenry from politicians' predictably relentless assaults on all matters pertaining to economic, personal, and social liberty. As it stands, the Court has metamorphosed into a principal enabler of just those tendencies Hamilton, Madison, and Jay most feared. Incremental idiocies do reach a point of no return, after which nothing anybody does or says will matter. At Harvard, Yale and others of their ilk, ideological dolt-meisters have agenda immune to decency or respect. These legal fancy-dancers have long since forfeited any claim to rationality.
3.11.2006 11:46am
markm (mail):

Easy enough. Congress enacts a statute denying federal funding to educational institutes that discriminate against gays, and the court upholds it as a legitimate exercise of the power to tax and spend, despite a college's assertion of its (or its students') right to choose to associate only with heterosexuals.

That's not a good example. Congress couldn't do that under current taxing and spending authority.

How is that different from something Congress did do: require schools to equally fund mens' and womens' sports, never mind that several times as many men want to participate in sports programs as women?
3.12.2006 12:11am
Bruce Hayden (mail) (www):
I don't know if this is a real story or not, but apparently at one school, the Marines set up a recruiting booth, and a gay organization got the space next to them. The Marines advertised that they wanted a few good men. The gay group said, so do we. Whether true or not, that is the type of 1st Amdt. protesting that the Supreme Court was envisioning as being proper, and, indeed, one of those in the discussion pointed out that they essentially gave a "bright green light" to this sort of protest.

My view is that the law school's 1st Amdt. claims were always fairly weak as the profs weren't really the group most affected by the recruting. That was the students. Indeed, the faculty were trying to impose a speech code on what speech could be heard by their students. Indeed, the profs could easily avoid any interaction whatsoever with the JAG recruiters by the simple act of avoiding them, and, indeed, in most cases, merely not seeking them out.

I think to some extent, it was the compelled speech of the schools on the students that was really driving this. The faculty were asking for less speech, and (in oral arguments I think), the question was asked, isn't the solution to this sort of thing more speech, not less?

One thing that has to be remembered is that Free Speech is relative, and, in paticular, dependent upon circumstances. I think that it has been well established for a long time that the military can significantly imapir the Free Speech rights of those in the military. For example, soldiers can't openly protest, esp. while in uniform. And, indeed, can't partake in expressive conduct in not doing something they are ordered to do (if otherwise legal). So, a soldier can't refuse to go on a mission today in Iraq because he doesn't believe that Bush's justifications for invading Iraq were valid. I think that that would still be expressive speech, as defined by this opinion, but still wouldn't be legal.

Thus, a lot of deference to Congress' Article I power to raise an army. While it may be possible to expand some of the 1st Amdt. findings here, I think that a counterargument that this was a special situation where Congress' Article I power trumped the 1st Amdt. (And the key here is the repeated point that Congress can't be kept from doing something indirectly that they could do directly, including forcing the schools to allow the recruiters, and, indeed, even drafting law school students and profs as JAG officers).
3.12.2006 12:46pm