The boy scouts' three (four?) association claims

[Lederman, Marty]

Actually, the Scouts make at least one more argument, which is even broader than those Andy Koppelman has identified.  According to BSA, the Court in Hurley held that the Free Speech Clause categorically prohibits the application of anti-discrimination laws to a private organization's choice of "leaders" and other spokespersons (which BSA would understand to include "role models") regardless of the effect such laws might have on the organization's expression.  As BSA put it:  "apart from the actual effect of appointing Dale as a leader, private organizations have the right to make leadership decisions for themselves, without threat of lawsuits, damages, punitive damages, and injunctions."  (Pet. Br. 29.)  This breathtakingly broad exemption from antidiscrimination laws apparently would apply to all "private" organizations, whether or not they are in some sense commercial.

In support of this startling argument, petitioners quote Hurley itself to say that "'the choice of a speaker * * * is presumed to lie beyond the government's power to control.'"  Pet. Br. 30 (quoting 515 U.S. at 575; elipsis in BSA brief).  But that is not what the Hurley decision says, and the substance of the text omitted in the Scouts' elipsis is -- how shall I put it? -- quite revealing.  The "choice" that was presumed by the Hurley Court "to lie beyond the government's power to control" was not the choice of an organization to choose a speaker -- it was "the choice of a speaker *not to propound a particular point of view*."  515 U.S. at 575.  Read in full, in other words, that quotation in Hurley was emphasizing the limited, and well-established, holding of that case -- namely, that a State may not attempt to compel a speaker to convey a message not of its own choosing.  Hurley surely does not stand for the proposition that private speakers can choose all "leaders" of their choosing, without regard to antidiscrimination laws.

There are, of course, numerous cases in which anitdiscrimination norms have been constitutionally applied to the "spokespersons" or leaders of private organizations.  See, e.g., INS v. NLRB, 301 U.S. 103, 131-133 (1937) (rejecting the claim, analogous to that of the BSA, that a news service "must have absolute and unrestricted freedom to employ and discharge" editors who are responsible for rewriting news copy, regardless of the NLRA's prohibition against discrimination based on union activity); Univ. of Penn. v. EEOC, 493 U.S. 182 (1990) (rejecting a First Amendment academic freedom defense of a private university against enforcement of a subpoena for peer review materials relating to the tenure process of a former faculty member who alleged she had been discriminated against on the basis of race and sex, in violation of Title VII); Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (assuming that some of the law firm's activities were protected by the First Amendment, but nevertheless rejecting a First Amendment defense to a Title VII sex discrimination claim by a lawyer who wanted to be considered for partnership in a law firm); Hausch v. Donrey of Nevada, Inc., 833 F. Supp. 822, 826 (D. Nev. 1993) (rejecting argument that First Amendment provided absolute protection against newspaper employee's claim that she was subjected to sex discrimination in denial of promotion to editor in violation of Title VII).  Such cases demonstrate that the First Amendment provides no *absolute* immunity from civil rights laws for private organizations' decisions to choose leaders and spokespersons.  General Motors, the New York Times, Harvard University, Save-the-Whales, CBS, etc., would be awfully surprised to learn that they may discriminate against persons on the basis of race, sex, religion, etc., with respect to positions that might involve some speech on behalf of the organization, or (more broadly) "role model" positions.

Of course, in the vast majority of the cases cited above, the courts emphasize that the private organizations *can* require their spokespersons, in their official capacities, to say (or not to say) whatever the organization wishes.  The holding of Hurley is entirely consistent with this principle.  (And Dale concedes that the BSA could, without violating NJ law, apply to him whatever "official speech" requirements that they apply to other adult Scouts.)  Moreover, in a particular case, the ordinary application of a race- or sex- or sexual-orientation antidiscrimination prohibition law to an organization's "spokesperson" might *incidentally* impair the ability of the organization to convey its views; and in such a case, the Roberts balancing test (like the O'Brien test, see Hurley, 515 U.S. at 577 (citing O'Brien)), is sufficient to ensure that such an incidental application of antidiscrimination laws does not unduly impinge on constitutionally protected activity.  See, e.g., Invisible Empire of the Knights of the KKK v. Mayor of Thurmont, 700 F. Supp. 281, 289 (D. Md. 1988) (KKK had the right to exclude blacks from parade where the Klan demonstrated that the "message of white separatism" that was the "specific expressive purpose" for the parade "would be destroyed if blacks were to march with them").  But such a case-by-case balancing -- in which the incidental impact on expression of is weighed against the state's interest in enforcing its antidiscrimination law -- is a far cry from BSA's assertion of an absolute exemption from antidiscrimination laws whenever a private organization is choosing its leaders or spokespersons.

Marty Lederman
(in my private capacity)



-----Original Message-----
From: Andrew Koppelman [mailto:akoppelman at NWU.EDU]
Sent: Wednesday, June 07, 2000 2:09 PM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: The boy scouts' three association claims


As I follow this thread, it seems to me that there is a tendency to run
together three distinct claims that the scouts are making.    Some
arguments that start by relying on one seem to me to slip sub silentio into
the others, thereby obscuring the difficulties of each.  Each claim has its
own distinctive problems.

1.  Intimate association.  The scouts meet in small groups, often in the
living rooms of private homes.  The problem with making this the basis of
the scouts' claim is that it's not the small groups that are doing the
exclusion.  As I understand it, scout policy requires the expulsion of gay
adults and children even if no member of a local chapter objects to the
presence of those persons.  I don't see how the scouts can object to Dale's
infringement on their intimate association when the persons who find him
objectionable are unlikely ever to lay eyes on him even if his claim is
sustained (and, to my knowledge, no data exists as to the preferences of
the persons who are actually going to associate with him).

2.  Expressive association.  The scouts claim that Dale, by his very
presence, communicates a message of toleration that they don't want to
endorse.  The problem with this claim is that it is available to anyone who
wants to discriminate against anyone else.  It is equally available to
commercial and noncommercial entities, since commercial entities do have
freedom of speech and freedom from compelled speech.  The claim is
available, for example, to white employers who don't want to endorse a
message of toleration of blacks.  It implies that the Civil Rights Act of
1964 is unconstitutional in all its applications.  I expect that my friend
David Bernstein will not shrink from these results, but does he have *any*
company in this august assemblage?

3.  The absolute right of noncommercial associations to exclude anyone for
any reason.  This, as I have said in the past, is the most plausible claim
the scouts have made.  It is implicitly invoked in Michael McConnell's most
eloquent claims on the scouts' behalf.  I find it tempting, for familiar
Tocquevillian reasons about encouraging a plurality of associations.  But I
hesitate to endorse it (or to repudiate it) because I am uncertain what
results it would produce.  It is, after all, pretty sweeping.  The Supreme
Court might imaginably endorse it, but if they were to do so it would
certainly be the boldest exercise of substantive due process since Roe v.
Wade.  I'd be much more comfortable with its adoption by statute,
preferably at the state level.

Am I exaggerating these difficulties?  If so, how?




________________________________________

Andrew Koppelman
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
________________________________________