Compelled speech rights following Rumsfeld and PruneYard

[Scarberry, Mark]

If I remember correctly, under the Solomon Amendment universities had the choice of taking federal money and allowing federal officials (the military) to recruit, or not taking federal money. I think that distinguishes Rumsfeld v. FAIR from our photographer who just wants to be able to engage in a business (or profession). As far as whether the unconstitutional conditions doctrine should be revitalized in a way that would have allowed the plaintiffs in Rumsfeld to prevail, that's another story, I think. 
 
But it's been a while since I've looked at the Rumsfeld opinion, and I could be mistaken.
 
Mark S. Scarberry
Pepperdine Univ. School of Law

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From: conlawprof-bounces at lists.ucla.edu on behalf of Rosenthal, Lawrence
Sent: Sun 4/13/2008 8:41 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Compelled speech rights following Rumsfeld and PruneYard



I am afraid that I read Rumsfeld v. FAIR to quite squarely reject "the principle that people can't be required to say, or post on their cars,. things that they don't want to say or post," at least in circumstances where observers are unlikely conclude that the compulsion signals some sort of ideological support.  After all, the Court acknowledged that the Solomon Amendment required schools to post information about the availability of military recruiters on campus on a nondiscriminatory basis, yet rejected quite brusquely the claim that observers might think that this compels the law schools to support military policies to which they object.

Larry Rosenthal
Chapman University School of Law

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From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sun 4/13/2008 1:43 PM
To: conlawprof at lists.ucla.edu
Subject: Compelled speech rights following Rumsfeld and PruneYard




        I had thought that Rumsfeld does not affect one aspect of
Barnette and Wooley -- the principle that people can't be required to
say, or to post on their cars, things they don't want to say or post.
And Wooley did not, if I recall correctly, suggest that the question is
whether a reasonable observer would think that the plaintiff was being
forced to *endorse* the message.  After all, having a
government-mandated license plate is not reasonably seen as an
endorsement of the contents of the license plate.

        Rather, I took the core of Barnette and Wooley -- which Rumsfeld
did not purport to affect, I think -- to be that one can't be require to
say or carry on one's car speech that one disapproved of.  If that's
right, then it seems that one equally couldn't be required to create
speech that one disapproved of.  Or am I mistaken?

        Eugene


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