Alito's First Big Decision

Today saw a fairly rare occurrence in the Court with the reargument of a Fourth Amendment / exclusionary rule case, Hudson v. Michigan. The outcome will be fairly significant, potentially (always a necessary qualifier when dealing with the Court), to the field of criminal procedure. At the broadest level, the case involves the question of whether evidence obtained during a search that violates the "knock-and-announce" rule must be excluded at trial.

As those who have taken crim. pro. certainly know, the Court has held that the Fourth Amendment requires searches to be "reasonable" not only in the standard of suspicious needed to justify a search (usually probable cause), by warrant or otherwise, but also must reasonable in execution. In the context of the execution of search warrants in private homes, the Court has in the recent past adopted the knock-and-announce rule as a presumed requirement for reasonable execution. In brief, the rule requires that police knock, announce their identity and the fact that they have a warrant, and give the occupants a reasonable period of time to answer the door before entering the premises. Police can forgo the requirement if, essentially, they have good reason to do so. Hudson involves a situation where the police, without good reason, knocked and announced their presence but forced entry into a house immediately after. The police found drugs in the pocket of one of those in the house.

Michigan has essentially conceded that the knock-and-announce rule was violated. But the state argued before the Court that the exclusionary rule should not apply to such violations. Not all violations of the Fourth Amendment trigger the exclusionary rule, and Michigan contends that applying exclusion in cases like Hudson is not necessary or justifiable to deter knock-and-announce omissions. The first argument in the case occurred while Justice O'Connor was still on the Court, and the fact that it is being reargued suggests that the other justices are split 4-4.

Enter Justice Alito. If Alito votes against exclusion, it will represent a continuing trend of the Court moving away from application of the rule for what might be considered especially technical, almost de minimis breaches of the Fourth Amendment. Of course, there are those of the opposite view, including the ACLU and (somewhat interestingly) the Cato institute. An AP story is here.

When Belief Overwhelms Judgment

The Post has an excellent piece up now on the case of executed murderer/rapist Roger Coleman and the activists who believed in his innocence. Coleman was executed in 1992 for the killing of his sister-in-law, but not before a storm of controversy emerged surrounding his claims of innocence. Many journalists and activists bought into Coleman's assertions that he had been unjustly convicted, and his claims inspired a prominent and largely sympathetic 1997 book, May God Have Mercy (one of my profs. in undergrad made it required reading for his legal system classes). Even after his execution, a group of activists continued to assert his innocence, and last year they succeeded in getting then-Gov. Mark Warner to allow modern DNA testing on evidence from the victim's body. These activists viewed this as a tremendous victory, of course; all believed in Coleman's innocence, and at least some hoped that his exoneration would deal a major blow to the institution of the death penalty in general.

The problem was that Coleman was, in fact, guilty. Earlier this year, the test came back as a definitive match.

The Post article provides some excellent insights into the motives of Coleman's defenders. The most glaring question is why so many believed in his innocence even in the face of the powerful (pre-DNA) physicial evidence of his guilt presented at his 1981 trial and continued to believe when less-sophisticated DNA tests, conducted in the 1990's, implicated him in the crime. As one might suspect, none of those involved directly state that their opposition to the death penalty may have affected their judgment about Coleman's guilt, but one doesn't have to do much reading between the lines to come to that conclusion.

I don't intend this post as a comment on the merits of the death penalty (one way or another). But more generally taken I think the story provides a cautionary tale of what can happen when lawyerly judgment is subsumed by "quests for justice" insufficiently checked by reason or concern for fact.

Judge Luttig

The big legal surprise from Wednesday was J. Michael Luttig's resignation from the Fourth Circuit. The Washington Post story on the matter is here; his letter of resignation can be found here. According to the Post, friends of Luttig attribute his decision to financial considerations (he'll be earning seven figures as general counsel at Boeing) and disappointment at not being named to fill one of the recent SCOTUS vacancies.

Of course, the Post's explanations could well be wrong; no one except Luttig can be certain about his reasons. In any event, Judge Luttig (pronounced "loo-tig") was an important intellectual force in the judiciary and a fine judge generally. His retirement is a significant loss to the Fourth Circuit, and those of us who hold Federalist Society-type beliefs should hope that will he continue to produce legal scholarship at a significant pace.

An Update on the Blog's Status and Future

I realize that it's been a while since the last post on the blog, and since my last post in particular. I do apologize for that. When I started this blog, I hoped and tried to maintain a frequency of postings that I now realize was not sustainable for any length of time, given the other obligations of myself and my fellow members of the society. With that being said, over the past month or two the pendulum has obviously swung much too far in the other direction.

With the onset of summer, it is my expectation that I (and hopefully some other members of our group) will have the time and willingness to post more frequently. Speaking for myself, I hope to gradually catch up on my reviews of the Court's slip opinions, as well as continuing to occasionally post about whatever legal issues happen to catch my interest. In the longer term, I have some more ambitious ideas for the blog that may or may not get implemented, depending on how time issues play out.

While the salad days of three or four posts a day are probably gone for good, Semper Liberi will continue its mission of providing discussion and analysis of important legal issues of the day, as well as whatever else peaks our legal interest, at a more sustainable pace. Keep reading, and remember our supercilious latin motto: audi alteram partem.

Back, With A Familiar Issue

Well, our trial was rescheduled for Monday, so Tom and I will continue to be rather preoccupied until then. However, it seems at least a few updates are in order. To start with, The Weekly Standard has a rather interesting analysis of the likely political and legal consequences if Roe were to be overturned, including a head count of the states likely to adopt significantly more restrictive abortion laws in a post-Roe era.

Work, Work, Work...

Tom and I have been quite busy over the last ten days preparing for a mock trial tournament that starts this week, hence the relatively sparse frequency of posts over that period. Have no fear, however: I have some interesting stuff that I'll post this evening. Things should return to normal after this Wednesday, meaning that posting frequency will go from highly variable to merely moderately variable. Thanks for your forbearance until then.

Update: Still engrossed in trial preparation. Unfortunately, no further updates likely until Wednesday night.

Desperately Trying to Split Hairs in FAIR

In the wake of the FAIR decision, many commentators have occupied themselves with the question of how the law professors who powered the challenge to the Solomon Amendment could have become so detached from legal reality. However, it should still be noted that many of the profs involved are still sticking to their guns. This post from SCOTUSblog details an effort by left-wing law prof Jack Balkin to keep the issue alive. Also unsurprisingly, his arguments have no more merit than those specifically rejected by the Court in the case.

Developments in the Moussaoui case

Judge Brinkema initially decided that the death penalty trial could go forward, but ordered that the U.S. would not be able to present witnesses from the FAA. However, the judge modified that order today to allow the prosecution to present aviation security testimony from witnesses who did not have contact with the wayward government lawyer, Carla J. Martin.

On a related point, there's a note of explanation that hasn't been provided by most media outlets covering the story but that's vital to understanding the trial. The government's theory is that Moussaoui pretended to cooperate with FBI agents after his arrest but actually misdirected them away from the 9/11 attacker's plan. The government argues that if Moussaoui had revealed the real plot, aviation authorities could have increased security and likely prevented at least one of the hijackings. Thus, the U.S. must present aviation security testimony about what would have been done if authorities had been warned in order to have any chance of getting a death sentence for Moussaoui. Ms. Martin's misconduct with some of those witnesses placed the whole trial in jeopardy.

Bad News in the Moussaoui Sentencing Trial

Many of you have already been following this, undoubtedly, but the sentencing trial of 9/11 conspirator Zacarias Moussaoui hasn't been going well. Moussaoui previously pleaded guilty to conspiring in the 9/11 plot, and the current trial will determine whether he gets life in prison or death. Given that Moussaoui proudly shouted "I am Al Qaida" and other similar statements at several times during jury selection, one may have expected the result to be rather certain. However, a couple of incidents of misconduct by the U.S. prosecutors has lead to a seemingly real possibility that the judge in the case will dismiss the death penalty proceedings entirely and sentence Moussaoui to life.

The latest government transgression occurred when a prosecutor improperly coached witnesses from the Federal Aviation administration. In spite of a ban on communicating with witnesses imposed by U.S. District Judge Leonie Brinkema, prosecutor Carla J. Martin e-mailed them preparatory comments and parts of the trial transcript (those comments included criticisms of her fellow prosecutor's opening statement). Judge Brinkema fumed that "In all the years I have been on the bench, I have never seen such an egregious violation of a court's rule on witnesses."

That incident follows another in which the prosecution tried to make the argument that Moussaoui should be punished for invoking his right to remain silent until he could consult an attorney. As one might expect, Judge Brinkema sustained an objection to that and is considering a defense motion for a mistrial.

I think it unlikely that Judge Brinkema will dismiss the proceedings entirely or grant a mistrial, but due to the seriousness of the government's misconduct it's not out of the question. Thus, what once seemed a sure death sentence may be on the verge on turning into a historic debacle.

An Analysis of Rumsfeld v. FAIR, Part 2

Well, it's been a while, but this is the second part of my analysis of Rumsfeld v. FAIR. Here is a shortcut to the first part (which I updated a bit to enhance its analytical clarity). I left off with the Court shooting down FAIR's compelled-speech arguments, so let's go into the freedom of association issue.

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.

I'm Back

There's only one subject that's worth staying inside and blogging about on a beautiful (75 degrees) Morgantown day: Roe v. Wade. That's a joke, sort of. Anyway, over the weekend a new AP story came to the not-so-shocking conclusion that "Americans are inconsistent on abortion." The story begins as thus:

WASHINGTON - For all the recent tumult over abortion, one thing has remained surprisingly stable: Americans have proved extremely consistent in their beliefs about the procedure and extremely conflicted in their views.

A solid majority long have felt that Roe v. Wade should be upheld. Yet most support at least some restrictions on when abortions can be performed. Most think having an abortion should be a personal choice. But they also think it is murder.

"Rock solid in its absolutely contradictory opinions" is how public opinion expert Karlyn Bowman describes the nation's mind-set.

For our legal purposes, the main import of the article is that a majority of Americans say Roe should be upheld, but also support restrictions that would clearly be invalid under Roe. As I said, not a surprising or unprecedented finding in any way, but one worth examining from time to time.

A Brief Hiatus

I'm taking this weekend off (a lawless weekend, so to speak) for personal reasons, but things will be be back humming next Monday. In the meantime, take the opportunity to get up to date on anything you might have missed below.

Take it, dammit.

See you on Monday.

Scholarship Update

It's been a while, but here we go...

Many people know of the Alien and Sedition Acts, the John Adams era measures that basically criminalized criticism of the president. Fewer know about the controversy among scholars regarding John Marshall's possible role in advocating for the Acts. Two law professors argue that Marshall authored one of the most significant defenses of the Acts, using similar lines of reasoning to those he articulated in McCulloch v. Maryland.

Whatever happened to the crime of treason? A California prof posits an answer and argues for returning treason from dead letter law.

The line between exaggeration and fraud in sales situations can get a little blurry. The authors of "The Best Puffery Article Ever" try to clear things up a bit and make some proposals for increasing the reach of fraud law. Speaking as the Best Law Student Ever, I say the article looks to be worth a read.

A key shared assumption among most originalists is the usefulness of referring to the common law in place at the time of a constitutional provision's framing. A prof takes up the strengths and weaknesses of that technique in a paper draft.

One Reason I'm Not a Libertarian

In response to the FAIR decision, an author from the libertarian magazine Reason argues that McCullough v. Maryland should be overruled. By comparison, Justice Thomas is a stare decisis zealot.

The Beginning of the Roberts Era

A couple of interesting articles today on the operations of the Roberts Court thus far. In a news conference that Justice Breyer gave before speaking at the Clinton Presidential Library, he stated that the addition of two new justices had caused an increase in the amount of debate in the Justices' conferences. That suggests that the quite high degree of public consensus that the Court has shown in its decisions so far this term may not last, to no one's surprise. Breyer also said that he thought the introduction of television cameras in the Court "almost inevitable."

Meanwhile, in a speech at the Reagan Presidential Library, Chief Justice Roberts admitted that he was a little nervous his first day on the job.

Catching Up

I'm a bit behind schedule in posting various things, but I'm going to get caught up in the next couple of days. I'll post the second half of my Rumsfeld v. FAIR analysis tommorrow; In the meantime, enjoy this op-ed on the case from George Will (he only crows a little bit). Also, I will post summaries of last week's SCOTUS decisions (probably tomorrow), and I want to go back and address a few points Alex made in a comment about the judicial nominations process. Expect a new scholarship summary/update as well.

This Could Be Interesting

The Justice Department has launched an investigation into whether its lawyers abused the power to temporarily detain material witnesses in the wake of 9/11. The ACLU has been carping about this for a while, but this is the first official investigation that I've heard about. See the story for more background info.

Update: Forgot to actually add the hyperlink in the original post... I am so looking forward to Spring Break.

A News Break

The governor of South Dakota did sign that abortion bill into law, an action that not all pro-life groups thought was wise as a legal strategy.

Meanwhile, the House passed the Patriot Act reauthorization and the President, unsurprisingly, will sign it.

Re: A Decent Proposal

I read the piece that Tom linked to, and it’s definitely worth perusing. I have some thoughts about the policy merits of the authors’ proposal, but let me address the constitutionality issues first.

Although I hate to disagree with the list of eminent legal scholars (that’s a lie, of course, but it sounds good to say it) who have endorsed that specific proposal or some similar mechanism, I don’t think enacting such a reform by statute would pass the constitutional smell test. A rotational scheme like the kind the authors propose would essentially demote Supreme Court justices to lower courts after their main 18-year period of service had run, which, to me, would conflict fairly directly with the requirements of Article III, Section 1:

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

This language has most commonly (and correctly, in my view) been interpreted to say that federal judges have life tenure in their offices unless they are impeached for bad behavior. But of course, the intrepid law professors behind the proposal do not concede this point. They mainly base their argument on an early Marshall court case called Stuart v. Laird, which they contend stands for two propositions: (1) that Congress can abolish lower federal court offices and throw out judges occupying them, and (2) that Supreme Court justices can be forced to adjudicate lower court matters (the Judiciary Act of 1802 reinstated the practice of SCOTUS justices riding circuit, which the Judiciary Act of 1801 had replaced in favor of creating circuit court positions). From these two premises, the authors reason that Congress has the power to effectively push justices off of SCOTUS after they have served for an 18-year period and into service in lower courts.

Unfortunately for the authors, there are several fatal problems with that argument.  The Stuart v. Laird opinion didn’t directly address the issue of whether Congress can kick out lower federal judges by abolishing their courts (one might speculate that the Federalist –dominated Court didn’t want to risk antagonizing the Republican-dominated Congress and President Jefferson by striking down the Republican-passed 1802  Judiciary Act, especially at a time when both were in a mood to impeach Supreme Court justices). Furthermore, even if Stuart v. Laird really stands for what the authors say it stands for, their conclusion about essentially kicking justices off of SCOTUS just doesn’t follow.  There’s a big difference between making justices perform some lower court proceedings while they serve on SCOTUS at the same time -which Laird explicitly allowed- and demoting them from regular service on the Court to service on a circuit court. Moreover, there’s also a big difference between forcing lower court justices off their courts by eliminating their positions- assuming that’s actually constitutional- and forcing a justice off the Supreme Court.  While Article III gives Congress the discretion to create lower federal courts, which might give some support to a “the power to create is the power to destroy” line of reasoning, the Supreme Court is a constitutional creature.

The authors also make what can only be described as some “living constitutionalist” arguments in favor of their proposal, including a really bizarre claim that their position is supported by reading the Good Behavior Clause “in conjunction with the Necessary and Proper Clause.” In that way, the piece actually provides a good example of how evolutionary theories of constitutional meaning can disregard text and history-based methods of interpretation.

But I ramble. To briefly state my views on the policy merits, I agree with Tom about the validity of some of the concerns the authors discussed. However, I think those concerns would be better addressed by a constitutional amendment setting a specific term of years for serving on the Court, say 25 years. That would combat pressures to choose younger justices to some extent while assuring a certain minimal level of turnover. In my assessment of those problems, I’m not sure I see the need for anything more. But maybe Tom can persuade me otherwise.

An Analysis of Rumsfeld v. FAIR, Part 1

After reading the opinion, this decision seems to me to be perhaps the most significant of this term (so far) in terms of long-term effect on constitutional case law. Thus, I have decided to post a rather lengthy analysis of the case.

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.