Solomon Amendment Upheld
marty.lederman at comcast.net
Mon Mar 6 07:48:31 PST 2006
Re: (Darryl) Levinson thesis (continued)Notably, the Court does not rely on the Spending Clause, but holds that the requirement of military access could be imposed directly. Indeed, the Court first rejects the amici's statutory argument that the Solomon Amendment merely requires access to the military on the same conditions as those imposed on other employers. The implication is that schools must afford DoD exemptions from any recruiting rules that have the effect of giving the military less access to students than some other employer. Thus, the holding is that the government may require schools (including private schools) to give preferential access to military recruiters, without any First Amendment concerns.
IMHO, this is the holding that the Court should have issued in Dale. The Court today distinguishes Dale on the ground that the required inclusion there affected the group's membership, rather than its invited visitors. That, of course, doesn't distinguish Hurley. As for Hurley (and Tornillo and PG&E), the Court holds that requiring access to other parties' speech is only constitutionally problematic where that access has a palpable effect on one's own speech (such as by alterning the message conveyed in a parade (Hurley), or by monopolizing scarce space in a newspaper that could have been used for the plaintiff's own speech (Tornillo)). The weakest part of today's opinion, I think, is the Chief's attempt to distinguish PG&E. Here's what he writes:
The same is true in Pacific Gas. There, the utility company regularly included its newsletter, which we concluded was protected speech, in its billing envelope. 475 U. S., at 8.9. Thus, when the state agency ordered the utility to send a third-party newsletter four times a year, it interfered with the utility's ability to communicate its own message in its newsletter. A plurality of the Court likened this to the situation in Tornillo and held that the forced inclusion of the other newsletter interfered with the utility's own message. 475 U. S., at 16.18. 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.
In other words, Roberts is holding that there is a threshhold test -- "Is the plaintiffs' conduct 'inherently expressive'?" -- that triggers Tornillo-like scrutiny. So, for instance, if PG&E had not had a practice of including its own newsletter in the billing envelopes -- if the state there had required that it provide the third-party newsletter alongside its plain ol' "not inherently expressive" electric bills -- there would have been no First Amendment problem. This is a fairly significant revisionist reading of PG&E, in which the plurality's decision turned on the fact that including the required inserts would prompt the electric company to engage in unwanted counterspeech.
Today's decision is much more in keeping with PruneYard (which it favorably cites) than with PG&E and Dale. Together with Johans, it shows that the Court is cutting back on some of the excesses of its compelled-speech doctrine. Because I think PruneYard was rightly decided, I don't think this is necessarily a bad thing. I only wish the Court would now realize that Abood, Keller and Dale were wrongly decided.
----- Original Message -----
From: Marty Lederman
To: CONLAWPROF at lists.ucla.edu ; LawCourts-L at usc.edu
Sent: Monday, March 06, 2006 10:12 AM
Subject: Solomon Amendment Upheld
unanimously, in an opinion written by the Chief Justice -- http://scotus.ap.org/scotus/04-1152p.zo.pdf.
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