Several things struck me about the opinion- which was authored by Chief Justice Roberts and joined by all the justices (sans Alito)- while I was reading it. First, and most obviously, as opinions go it's truly excellent in quality: well written, analytically clear, and comprehensive yet reasonably concise. Second, the Court didn't go out of its way to decide the case on the narrowest possible grounds. Instead, Chief Justice Roberts addressed directly each of the half-dozen or so issues that the Third Circuit raised in its decision below and shot them down unceremoniously. In light of that breadth, it's particularly remarkable that the entire court signed on. Third, in addressing all those issues the Court (as it looks to me) set forth some important new clarifications in several major lines of case law. I'll go through them in a roughly most-significant-first order.
1.
In addressing its "unconstitutional conditions" body of case law, which theoretically places some limits on Congress's exercise of the spending power, the Court took a deferential approach:
This case does not require us to determine when a condition
placed on university funding goes beyond the "reasonable" choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. See Speiser v. Randall, 357 U. S. 513, 526 (1958). Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.
I'm not so sure that it was clear before this case that the unconstitutional conditions doctrine did not apply where restrictions could be imposed directly (which might be the reason that the Court had to cite a 1958 case for the proposition). Somewhat surprisingly, the Court's discussion of unconstitutional conditions does not even mention South Dakota v. Dole, which was probably the leading case on that issue before today. In part,Dole discussed an additional spending power limitation: that certain uses of the spending power could improperly turn "pressure into compulsion" if the monetary stakes for a entity refusing to adopt the feds preferred policy were high enough. One can seriously question whether that limitation still exists in light of today's decision. I shall have to devote more time and thought before coming to a solid conclusion about that.
(Update: I should have explictly pointed out two signifigant things here that I didn't in my orginal post. First, the Court announced that, had Congress wished to do so, it could have directly imposed the requirements of the Solomon Amendment upon law schools under its Article II grant of power to raise armies, instead of merely relying upon the indirect effect of the spending power. Secondly, the rest of the Court's opinion is devoted to describing why the Solomon Amendment would not violate the First Amendment if the federal government had imposed it requirements directly. Thus, one can see the importance of the statement that "[i]t is clear that a funding condition [under the spending power] cannot be unconstitutional if it could be constitutionally imposed directly.")
2.
The Court also clarified aspects of its First Amendment "compelled speech" case law. Here, two sub-issues presented themselves: whether school officials were effectively forced to speak in aid to military recruiters, and whether mandating access for military recruiters essentially forced law schools to compromise their own speech. On the first point, I’ll let the Court speak for itself :
Some of this Court’s leading First Amendment precedents
have established the principle that freedom of speech prohibits the government from telling people what they must say. In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), we held unconstitutional a state law requiring schoolchildren to recite the Pledge of Allegiance and to salute the flag. And in Wooley v. Maynard, 430 U. S. 705, 717 (1977), we held unconstitutional another that required New Hampshire motorists to display the state motto—“Live Free or Die”—on their license plates.
The Solomon Amendment does not require any similar expression by law schools. Nonetheless, recruiting assistance provided by the schools often includes elements of speech. For example, schools may send e-mails or post notices on bulletin boards on an employer’s behalf. See, e.g., App. 169–170; Brief for NALP (National Association for Law Placement) et al. as Amici Curiae 11. Law schools offering such services to other recruiters must also send e-mails and post notices on behalf of the military to comply with the Solomon Amendment. As FAIR points out, these compelled statements of fact (“The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.”), like compelled statements of opinion, are subject to First Amendment scrutiny. See Brief for Respondents 25 (citing Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 797–798 (1988)).
This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. The Solomon Amendment, unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only “compelled” if, and to the extent, the school provides such speech for other recruiters. There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse.
Chief Justice Roberts concluded his discussion of that matter by providing perhaps the most quotable language from today's opinion:
Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.
The Court's treatment of this issue obviously follows a line of reasoning that the compelled speech doctrine does not apply when the speech that occurs is incidental to conduct. That principle isn't new, but this case does help clarify what speech is and is not "incidental."
With regard to the question of forcing law schools to compromise their own speech by allowing access to recruiters , the Court provided some helpful background…
Our compelled-speech cases are not limited to the situationin which an individual must personally speak the government’s message. We have also in a number of instances limited the government’s ability to force one speaker to host or accommodate another speaker’s message. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566 (1995) (state law cannot require a parade to include a group whose message the parade’s organizer does not wish to send); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 20–21 (1986) (plurality opinion); accord, id., at 25 (Marshall, J., concurring in judgment) (state agency cannot require a utility company to include a third-party newsletter in its billing envelope); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 258 (1974) (right-of-reply statute violates editors’ right to determine the content of their newspapers). Relying on these precedents, the Third Circuit concluded that the Solomon Amendment unconstitutionally compels law schools to accommodate the military’s message “[b]y requiring schools to include military recruiters in the interviews and recruiting receptions the schools arrange.”
… then distinguished the FAIR case…
In this case, accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper;
its accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.
… and topped off the discussion with an expression of faith in law students:
Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies. We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (plurality opinion); accord, id., at 268 (Marshall, J., concurring in judgment); see also Rosenberger v. Rector and Visitors
of Univ. of Va., 515 U. S. 819, 841 (1995) (attribution concern “not a plausible fear”). Surely students have not lost that ability by the time they get to law school.
When the Court heard oral argument on FAIR, it was obvious that many of the justices didn’t buy the “recruiting as speech” argument. The Court’s holding on that point thus comes as no surprise.
Tune in tomorrow for part two of this missive, including an examination of the Court’s thoughts on the freedom of association and the notorious O’Brien test for expressive conduct.
No comments:
Post a Comment