3.
Again let me begin by quoting the Court, this time explaining its law on the freedom of association:
The Solomon Amendment does not violate law schools’ freedom of speech, but the First Amendment’s protection extends beyond the right to speak. We have recognized a First Amendment right to associate for the purpose of speaking, which we have termed a “right of expressive association.” See, e.g., Boy Scouts of America v. Dale, 530 U. S. 640, 644 (2000). The reason we have extended First Amendment protection in this way is clear: The right to speak is often exercised most effectively by combining one’s voice with the voices of others. See Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). If the government were free to restrict individuals’ ability to join together and speak, it could essentially silence views that the First Amendment is intended to protect. Ibid.
FAIR argues that the Solomon Amendment violates law schools’ freedom of expressive association. According to FAIR, law schools’ ability to express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools’ obligation to assist them. Relying heavily on our decision in Dale, the Court of Appeals agreed. 390 F. 3d, at 230–235.
The Court distinguished Dale (the case which allowed the boy scouts to exclude homosexual men form serving as scout leaders on the grounds of freedom of association) and a few similar cases by essentially concluding that the “association” here was de minimis:
The Solomon Amendment, however, does not similarly affect a law school’s associational rights. To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore “associate” with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school “ ‘to accept members it does not desire.’” Id., at 648 (quoting Roberts, supra, at 623). …
After rejecting a similar associational rights argument that the Solomon Amendment rendered a law school membership less desirable, the Court made its take home message on the freedom of association issues clear:
The Solomon Amendment therefore does not violate a law school’s First Amendment rights. A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message.
Before this case was decided, I had thought that the law schools’ weakest argument was on the freedom of association question, and nothing in the Court’s opinion makes me think otherwise now.
4.
Finally, let me turn to the “expressive conduct” issues and the O’Brien test. In the Vietnam War-era case of U.S. v. O’Brien, the Court distinguished between traditional speech and expressive conduct. In O’Brien itself, the expressive conduct in question was burning a draft card to protest the war. The O’Brien court announced that this type of conduct was entitled to less protection that “pure” speech, and promulgated a four-part test for evaluating the constitutionality of restrictions on that conduct.
The O’Brien test has been much and deservedly criticized for reasons which I need not go into here, and has never actually been applied to strike down a regulation on speech (which is one reason I’m not setting out the actual test here). Indeed, the Court has said that expressive conduct that is “inherently expressive” falls outside of O’Brien analysis and is entitled to the same degree of protection as more traditional forms of speech (See Johnson v. Texas, which accorded burning the U.S. flag normal protection because such conduct is inherently expressive.)
The Court’s discussion of O’Brien analysis is the weakest part of the opinion and is somewhat confused, which is not surprising given that all of the Court’s O’Brien case law is a bit confused. For the sake of completeness, however, let me quote what I take as the Court’s main point:
Unlike flag burning, the conduct regulated by the Solomon Amendment is not inherently expressive. Prior to the adoption of the Solomon Amendment’s equal-access requirement, law schools “expressed” their disagreement with the military by treating military recruiters differently from other recruiters. But these actions were expressive only because the law schools accompanied their conduct with speech explaining it. For example, the point of requiring military interviews to be conducted on the undergraduate campus is not “overwhelmingly apparent.” Johnson, supra, at 406. An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school’s interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.
I may make an additional post explaining the absurdity of the O’Brien test at some point, but for now that’s more than enough.
This post completes my overview of the Court’s opinion. I’ll be back on this topic in a while with a few more thoughts on the import of the case.
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