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FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS v. RUMSFELD Decided: AMBRO, Circuit Judge The Solomon Amendment, 10 U.S.C. § 983, requires the
United States Department of Defense ("DOD") to deny federal funding
to institutions of higher education that prohibit military representatives
access to and assistance for recruiting purposes. Last fall, the Forum for
Academic and Institutional Rights, Inc. ("FAIR"), n1 an association
of law schools and law faculty, asked the United States District Court for
the District of New Jersey to enjoin enforcement of the Solomon Amendment. The
District Court denied FAIR's motion. Forum for Academic & Institutional
Rights, Inc. v. Rumsfeld, 291 F. Supp. 2d 269 (D.N.J. 2003)
("FAIR"). On appeal, we hold that FAIR has demonstrated a
likelihood of success on the merits of its First Amendment claims and that it
is entitled to preliminary injunctive relief. Accordingly, we reverse. n1 Joining FAIR in its
preliminary injunction motion and in this appeal are: the Society for Law
Teachers, Inc.; the Coalition for Equality; Rutgers Gay and Lesbian Caucus;
law professors Erwin Chemerinsky and Sylvia Law; and law students Pam
Nickisher, Leslie Fischer, Ph.D., and Michael Blauschild. For convenience, we
refer to all plaintiff-appellants collectively as "FAIR." I. Background Facts n2 and Procedural Posture n2 The facts on appeal are not in
dispute. As the District Court noted, the Government did not challenge or
supplement the factual assertions presented by FAIR in its motion for
injunctive relief. FAIR, 291 F. Supp. 2d at 277. A. Law Schools' Nondiscrimination Policies Law schools have long maintained formal policies of
nondiscrimination that withhold career placement services from employers who
exclude employees and applicants based on such factors as race, gender, and
religion. In the 1970s law schools began expanding these policies to prohibit
discrimination based on sexual orientation as well. In response to this trend
the American Association of Law Schools ("AALS") voted unanimously
in 1990 to include sexual orientation as a protected category. As a result,
virtually every law school now has a comprehensive policy like the following: [The] B. Congress
Passes the Solomon Amendment The United States military excludes servicemembers based
on evidence of homosexual conduct and/or orientation. See 10 U.S.C. § 654. n3
Citing their nondiscrimination policies, some law schools began in the 1980s
refusing to provide access and assistance to military recruiters. This caught
the attention of members of Congress. In 1994, Representative Gerald Solomon
of New York sponsored an amendment to the annual defense appropriation bill
that proposed to withhold DOD funding from any educational institution with a
policy of denying or effectively preventing the military from obtaining entry
to campuses (or access to students on campuses) for recruiting purposes.
National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337
§ 558, 108 Stat. 2663, 2776 (1994). n3. While the current statutory version
of the military's exclusionary policy has existed since 1993, National
Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, §
571(a)(1), 107 Stat. 1547, 1670 (Nov. 30, 1993), the military has had formal
regulatory policies excluding gays and lesbians since World War I and a
practice of such exclusion since the Revolutionary War. See, e.g., Articles
of War of 1916, Pub. L. No. 242, art. 93, 39 Stat. 619, 664 (assault with
intent to commit sodomy punishable by court martial); see generally Randy
Shilts, Conduct Unbecoming: Gays & Lesbians in the U.S. Military 11-17
(1994). Under the current statute, a
servicemember is separated from the military if it is found that he or she
"engaged in . . . a homosexual act" or "stated that he or she
is a homosexual" or "married or attempted to marry a person known
to be of the same biological sex." 10 U.S.C. § 654(b). It defines
"homosexual" and "homosexual act" to include evidence
demonstrating "a propensity or intent to engage in homosexual
acts." Id. It also allows servicemembers to rebut findings of proscribed
conduct with evidence of the lack of a propensity to engage in homosexual
conduct, i.e., evidence of a heterosexual orientation. Id. Law schools
interpret the ban as conflicting with their policies against discrimination
on the basis of sexual orientation. During debate in the House of Representatives,
Representative Solomon urged the passage of his amendment "on behalf of
military preparedness" because "recruiting is the key to an all-volunteer
military." 140 Cong. Rec. H3861 (daily ed. May 23, 1994). He argued that
it was hypocritical for schools to receive federal money while at the same
time denying the military access to their campuses: "Tell[] recipients
of Federal money at colleges and universities that if you do not like the
Armed Forces, if you do not like its policies, that is fine. That is your
First Amendment right[]. But do not expect Federal dollars to support your
interference with our military recruiters." Id. The amendment's
co-sponsor, Representative Richard Pombo of California, said Congress needed
to target "policies of ambivalence or hostility to our Nation's armed
services" that are "nothing less than a backhanded slap at the
honor and dignity of service in our Nation's Armed Forces." Id. at
H3863. He urged his colleagues to "send a message over the wall of the
ivory tower of higher education" that colleges' and universities'
"starry-eyed idealism comes with a price. If they are too good--or too
righteous—to treat our Nation's military with the respect it deserves[,] then
they may also be too good to receive the generous level of taxpayer dollars
presently enjoyed by many institutions of higher education in America." Other Representatives opposed the amendment, alleging
violations of academic freedom and civil rights. See, e.g., id. at H3862
(Rep. Dellums) ("We should not . . . chill or abridge privacy, speech,
or conscience by threatening a college with a Federal funds termination
because it chose for whatever reason to deny access to military recruiters .
. . . We should not browbeat them . . . into becoming involuntary agents of
Federal policy."). In light of Vietnam War-era legislation, rarely
invoked, that already granted the DOD discretion to withhold funding from
colleges and universities that barred military recruiters, see Pub. L. No.
92-436, § 606, 86 Stat. 734, 740 (1972), the DOD itself objected to the
proposed amendment as "unnecessary" and "duplicative."
140 Cong. Rec. H3864 (Rep. Schroeder) (explaining the DOD's position). The
DOD also feared that withholding funds from universities could be potentially
harmful to defense research initiatives. Id. But the House voted for the
amendment by a vote of 271 to 126. Id. at H3865. Several months later the
Senate approved the defense spending appropriations bill, including
Representative Solomon's amendment, and the "Solomon Amendment"
ultimately became law. C. Subsequent Amendments and Regulatory Interpretations In 1997 Congress amended the Solomon Amendment by expanding
its penalty to include, in addition to DOD funds, funds administered by other
federal agencies, including the Departments of Transportation, n4 Labor,
Health and Human Services, and Education. n5 Omnibus Consolidated
Appropriations Act, 1997, Pub. L. No. 104-208, § 514(b), 110 Stat. 3009-270
(1996). This amendment was recodified in another amendment in 1999. National
Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, § 549,
113 Stat. 512, 609-11 (1999). DOD regulations have clarified this expansion,
penalizing an offending "subelement" of a college or university
(i.e., a law school) that prohibits or effectively prevents military
recruiting with the loss of federal funding from all of the federal agencies
identified in the statute, while withholding from the offending subelement's
parent institution only DOD funds. 32 C.F.R. § 216.3(b)(1). n4 Department of Homeland
Security funds later replaced Department of Transportation funds. Pub. L. No.
107-296, § 1704(b)(1), 116 Stat. 2314 (2002). n5 A separate amendment cancelled
the application of the Solomon Amendment to direct student aid. Department of
Defense Appropriations Act of 2000, § 8120, Pub. L. No. 106-79, 113 Stat.
1212, 1260 (1999). The 1999 amendment also codified exceptions to the
Solomon Amendment's penalties for schools that (1) have ceased an offending
policy or practice, or (2) have a longstanding religious-based policy of
pacifism. § 549, 113 Stat. at 610(c) (codified at 10 U.S.C. § 983(c)). DOD
regulations subsequently added a third exception for schools that provide
military recruiters a degree of access equal to that provided to other
recruiters. 32 C.F.R. § 216.4(c). Following the 1999 amendment, the DOD enforced the
Solomon Amendment consistent with its terms. Only schools whose policies or
practices "prohibited, or in effect prevented," military
representatives "from gaining entry to campuses, or access to students .
. . on campuses for purposes of military recruiting," were penalized.
Thus, by merely allowing military recruiters to gain access to campuses, many
law schools avoided the Solomon Amendment's penalty while reaffirming their
opposition to the military's exclusionary employment policy by not providing
them affirmative assistance in the manner provided to other recruiters.
Harvard Law School, for example, allowed military recruiters on campus to
recruit at the offices of its Veterans Association but did not volunteer its
placement personnel to arrange interviews. Boston College Law School allowed
military recruiters to conduct on-campus interviews, but kept their
literature in the library rather than in the career services office. Until
the fall of 2001, the DOD did not consider these and other similar
"ameliorative measures" to violate the Solomon Amendment and
expressed enthusiasm for the law schools' cooperation with what it described
as successful recruiting efforts. See FAIR, 291 F. Supp. 2d at 282 (citing
record evidence). But following the terrorist attacks in the United States
in September 2001, the DOD began applying an informal policy of requiring not
only access to campuses, but treatment equal to that accorded other
recruiters. As evidence of this informal policy, a letter from the DOD's
Acting Deputy Undersecretary William J. Carr to Richard Levin, the President
of Yale University, stated that universities are required "to provide
military recruiters access to students equal in quality and scope to that
provided to other recruiters." n6 The same letter stated that the
"DOD requires that there not be a substantial disparity in the treatment
of military recruiters as compared to other potential employers." This
changed context meant that Yale's willingness to let military recruiters use
a room in Yale Law School's building for interviews would not pass muster
unless it also provided military recruiters with the same level of assistance
from its career development office (arranging interviews, posting notices,
etc.) provided to other recruiters. Furthermore, the DOD intimated that
failure to comply would result in a loss to Yale University not only of DOD
funds, but of all federal funds (a penalty that is not consistent with the
DOD's existing regulations, under which the offending subelement's parent
institution is penalized with the loss of only DOD funds, see 32 C.F.R. §
216.3(b)(1)). n6 In wording the new informal
policy's substantive requirement, the DOD borrowed language from the existing
policy's regulatory exception--32 C.F.R. 216.4(c) (exempting from Solomon Act
compliance a law school that "presents evidence that the degree of
access by military recruiters is at least equal in quality and scope to that
afforded to other employers"). In another example, the DOD advised the University of
Southern California Law School in 2002 that its past practice of
accommodating military recruiters--providing them with standard employer
information, referring them to the campus ROTC office for scheduling of
interview office space, posting notices in the weekly newsletter for
students, and making military recruitment materials available to
students--would violate the Solomon Amendment unless its career services
office invited military recruiters to participate in an off-campus job fair
open to other employers. According to the DOD, anything less than equal treatment
for military recruiters "sends the message that employment in the Armed
Forces is less honorable or desirable than employment with other
organizations"--a dangerous message to be sending "in today's
military climate." In light of the millions of dollars at stake, every
law school that receives federal funds had, by the 2003 recruiting season,
suspended its nondiscrimination policy as applied to military recruiters. This past summer Congress amended the Solomon Amendment
to codify the DOD's informal policy. Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 552, 118 Stat.
1811, 1911 (2004). Now, under the terms of the statute itself, law schools
and their parent institutions are penalized for preventing military
representatives from gaining entry to campuses for the purpose of military
recruiting "in a manner that is at least equal in quality and scope to
the [degree of] access to campuses and to students that is provided to any
other employer." 10 U.S.C. § 983(b). D. Current Litigation In September 2003, FAIR sued the DOD and the other
federal departments whose funds are restricted under the Solomon Amendment,
seeking on constitutional grounds a preliminary injunction enjoining
enforcement of the statute and the then-existing (now codified) informal
policy. The Government defendants moved to dismiss for lack of standing. The
District Court denied both the motion to dismiss and FAIR's motion for
preliminary injunction. See FAIR, 291 F. Supp. 2d at 296, 322. This appeal
followed. II. Jurisdiction Under 28 U.S.C. § 1331, a federal district court has
original subject matter jurisdiction over an action for injunctive relief
based on constitutional claims. Tenafly Eruv Ass'n v. Borough of Tenafly, 309
F.3d 144, 156 n.12 (3d Cir. 2002), cert. denied, 539 U.S. 942, 156 L. Ed. 2d
628, 123 S. Ct. 2609 (2003). n7 Our appellate jurisdiction exists under 28
U.S.C. § 1292(a)(1). n7 Standing must also be proper
for subject matter jurisdiction to exist. See, e.g., Storino v. Borough of
Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir. 2003); Charles Alan Wright
& Arthur R. Miller et al., Federal Practice & Procedure § 3531 (2d
ed. 1984). The District Court held that FAIR had standing to seek a
preliminary injunction against the Solomon Amendment, and the Government has
conceded this issue on appeal. Acknowledging our continuing obligation to
verify subject matter jurisdiction when it is in question, see, e.g., Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 364 F.3d 102, 104 (3d Cir.), cert.
granted on other grounds, No. 03-1696, 160 L. Ed. 2d 221, 125 S. Ct. 310
(2004), we affirm the District Court's holding that FAIR's standing was
proper for the reasons it provided. FAIR, 291 F. Supp. 2d at 285-91. While the Government does not
concede that the non-FAIR plaintiffs had standing, the presence of one
plaintiff with standing is sufficient to satisfy that requirement. Bowsher v.
Synar, 478 U.S. 714, 721, 92 L. Ed. 2d 583, 106 S. Ct. 3181 (1986). III. Analysis To obtain a preliminary injunction FAIR must establish
(1) a reasonable likelihood of success on the merits, (2) irreparable harm
absent the injunction, (3) that the harm to FAIR absent the injunction
outweighs the harm to the Government of granting it, and (4) that the
injunction serves the public interest. Tenafly Eruv Ass'n, 309 F.3d at 157.
While we review a district court's balancing of the preliminary injunction
factors for abuse of discretion, we review "any determination that is a
prerequisite to the issuance of an injunction . . . according to the standard
applicable to that particular determination." Id. at 156 (citations
omitted). Thus, because the District Court's ruling was based on its
application of the First Amendment and other constitutional principles to the
Solomon Amendment--issues of law to which a plenary standard of review
applies--our review is plenary. A. Unconstitutional Conditions Doctrine FAIR argues that the Solomon Amendment is an unconstitutional
condition. n8 Under the unconstitutional conditions doctrine, the Government
"may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests--especially, his interest in freedom of
speech." Perry v. Sindermann, 408 U.S. 593, 597, 33 L. Ed. 2d 570, 92 S.
Ct. 2694 (1972). If Congress "could deny a benefit to a person because
of his constitutionally protected speech or associations, his exercise of
those freedoms would in effect be penalized and inhibited." Id. Put
another way, the Government may not propose a penalty to "produce a
result which [it] could not command directly." Speiser v. Randall, 357
U.S. 513, 526, 2 L. Ed. 2d 1460, 78 S. Ct. 1332 (1958) (state could not
condition property tax exemption on loyalty oath); see also Rosenberger v.
Rector & Visitors of the Univ. of Va., 515 U.S. 819, 132 L. Ed. 2d 700,
115 S. Ct. 2510 (1995) (public university could not condition funds for
student publications on their secular perspective); FCC v. League of Women
Voters, 468 U.S. 364, 82 L. Ed. 2d 278, 104 S. Ct. 3106 (1984) (FCC could not
condition federal funds to radio stations on editorial content). Thus, if the
law schools' compliance with the Solomon Amendment compromises their First
Amendment rights, the statute is an unconstitutional condition. n9 n8 Our dissenting colleague urges
us to begin our analysis with the presumption that congressional statutes are
constitutional. It is a fundamental canon of statutory construction that,
when there are "'two possible interpretations of a statute, by one of
which it would unconstitutional and by the other valid, our plain duty is to
adopt that which will save the Act.'" Rust v. Sullivan, 500 U.S. 173,
190, 114 L. Ed. 2d 233, 111 S. Ct. 1759 (1991) (quoting Blodgett v. Holden,
275 U.S. 142, 148, 72 L. Ed. 206, 48 S. Ct. 105 (1927)). But in this case it
is not argued that there are two possible constructions of the Solomon
Amendment. The canons of statutory construction therefore do not apply.
Moreover, "although a duly enacted statute normally carries with it a
presumption of constitutionality, when a [statute] allegedly infringes on the
exercise of First Amendment rights, the statute's proponent bears the burden
of establishing [its] constitutionality." Association of Community
Organizations for Reform Now v. Frontenac, 714 F.2d 813, 817 (8th Cir. 1983)
(citing Org. for a Better Austin v. Keefe, 402 U.S. 415, 419, 29 L. Ed. 2d 1,
91 S. Ct. 1575 (1971)). n9 As the District Court noted,
the Supreme Court's exception to the unconstitutional conditions doctrine for
selective spending programs does not apply here. FAIR, 291 F. Supp. 2d at
299-300. When the Government appropriates for a particular spending program,
it may endorse one viewpoint over another by conditioning its spending on
certain criteria. United States v. Am. Library Ass'n, 539 U.S. 194, 211, 156
L. Ed. 2d 221, 123 S. Ct. 2297 (2003) (providing library assistance funds to
only those libraries who agree to block obscene Internet sites); Rust, 500
U.S. at 192-93 (funding family planning services that eschew abortion
counseling). In those cases, "the Government [was] not denying a benefit
to anyone, but [was] instead simply insisting that public funds be spent for
the purposes for which they were authorized." Rust, 500 U.S. at 196; see
also Am. Library Ass'n, 539 U.S. at 211. That exception does not apply in our
case because the Solomon Amendment does not create a spending program; it
merely imposes a penalty--the loss of general funds. B. First Amendment Analysis The First Amendment provides that "Congress shall
make no law . . . abridging the freedom of speech." U.S. Const. amend.
I. This simple commandment plays out differently depending on the avenue of
analysis. Two avenues applicable here are: (1) whether the law schools are
"expressive associations" whose First Amendment right to
disseminate their chosen message is impaired by the inclusion of military
recruiters on their campuses; and (2) whether the law schools are insulated
by free speech protections from being compelled to assist military recruiters
in the expressive act of recruiting. n10 n10 FAIR also argues that the
Solomon Amendment and the then-existing informal policy are void under the
First Amendment's vagueness doctrine because they provide insufficient notice
as to what activities will trigger funding penalties. But the statutory
amendment enacted during FAIR's pending appeal, see supra Part I.C, has
rendered moot both the challenge to the Solomon Amendment, see Black United
Fund of N.J., Inc. v. Kean, 763 F.2d 156, 160 (3d Cir. 1985), and the
challenge to the regulatory policy, see Prometheus Radio Project, Inc. v.
FCC, 373 F.3d 372, 396 (3d Cir. 2004). The recent amendment to the Solomon
Amendment does not, however, moot FAIR's other challenges to it. See
Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City
of Jacksonville, 508 U.S. 656, 662, 124 L. Ed. 2d 586, 113 S. Ct. 2297 (1993)
(stating that a challenge to a statute is not moot when the new version of it
"disadvantages [appellants] in the same fundamental way"). A violation of freedom of speech under either analytical
approach draws down the curtain on Solomon Amendment enforcement unless the
Government can establish that the statute withstands strict scrutiny. The
levels of scrutiny applicable in the First Amendment context are crucial. A
regulation that disrupts an expressive association or compels speech must be
narrowly tailored to serve a compelling governmental interest, and must use
the least restrictive means of promoting the Government's asserted interest
(here, recruiting talented lawyers). See infra Parts III.B.1(c), 2(e).
Needless to say, this is an imposing barrier. The District Court, by contrast, emphasized a third
potential theory of this case that invokes only intermediate scrutiny, i.e.,
whether the government action at issue furthers an important government
interest that would be achieved less effectively without that action. The
Court asked whether the law schools' resistance to the Solomon Amendment is
sufficiently communicative to bring it within the ambit of the First
Amendment's protection for "expressive conduct," the suppression of
which receives intermediate scrutiny under United States v. O'Brien, 391 U.S.
367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968). See infra Part III.B.3(b). We
emphasize at the outset that we need not decide this issue because we
conclude that the Solomon Amendment violates the First Amendment by impeding
the law schools' rights of expressive association and by compelling them to
assist in the expressive act of recruiting. Nonetheless, we explain briefly
our conclusion that FAIR would prevail even under O'Brien's less strict
framework. 1. Expressive Association FAIR argues that the Solomon Amendment impairs law schools'
First Amendment rights under the doctrine of expressive association. The
Supreme Court most recently addressed this doctrine in BSA v. Dale, 530 U.S.
640, 147 L. Ed. 2d 554, 120 S. Ct. 2446 (2000). There the Court held that a
state public accommodations law that prohibited discrimination based on
sexual orientation could not constitutionally be invoked to force the Boy
Scouts to accept openly gay James Dale as an assistant scoutmaster. Id. at
659. Central to its analysis was the deference it gave to the Boy Scouts'
"view of what would impair its expression," which compelled the
Court's conclusion that Dale's presence would "significantly burden the
Boy Scouts' desire to not 'promote homosexual conduct as a legitimate form of
behavior.'" Id. at 653 (citation omitted). Under Dale, the elements of an expressive association
claim are (1) whether the group is an "expressive association," (2)
whether the state action at issue significantly affects the group's ability
to advocate its viewpoint, and (3) whether the state's interest justifies the
burden it imposes on the group's expressive association. Id. at 648-58;
accord The Circle School v. Pappert, 381 F.3d 172, 181-82 (3d Cir. 2004)
(applying the Dale framework); Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh,
229 F.3d 435, 442 (3d Cir. 2000) (same). We apply each in turn to analyze
FAIR's expressive association claim. (a) The law schools are expressive associations. A group that engages in some form of public or private
expression above a de minimis threshold is an "expressive
association." Pi Lambda Phi, 229 F.3d at 443. The group need not be an
advocacy group or exist primarily for the purpose of expression. Dale, 530
U.S. at 648. The Supreme Court held that the Boy Scouts, which "seeks to
transmit . . . a system of values, engages in expressive activity." Id.
at 650. "By nature, educational institutions are highly
expressive organizations, as their philosophy and values are directly
inculcated in their students." The Circle School, 381 F.3d at 182.
Because FAIR has shown that the law schools "possess[] clear educational
philosophies, missions and goals," id., we agree with the District
Court's conclusion that they qualify as expressive associations. FAIR, 291 F.
Supp. 2d at 303-04. Therefore, FAIR satisfies the first element of the Dale
analysis. (b) The Solomon Amendment significantly affects the law
schools' ability to express their viewpoint. FAIR argues that the Solomon Amendment significantly
affects law schools' ability to express their viewpoint, reflected in their
policies, that discrimination on the basis of sexual orientation is wrong.
The Solomon Amendment compels them, they contend, to disseminate the opposite
message. The schools believe that, by coordinating interviews and posting and
publishing recruiting notices of an employer who discriminates on the basis
of sexual orientation, they impair their ability to teach an inclusive
message by example. Put another way, FAIR maintains that the Solomon Amendment
suppresses the law schools' chosen speech by interfering with their
prerogative to shape the way they educate (including, of course, the manner
in which they communicate their message). In Dale, the Supreme Court recognized that "the
forced inclusion of an unwanted person in a group" could significantly
affect the group's ability to advocate its public or private viewpoint. 530
U.S. at 648. The viewpoint at issue in Dale was the Boy Scouts' long-held
belief that "homosexual conduct is inconsistent with . . . the Scout
Oath" and that "homosexuals [do not] provide a role model
consistent with the[] expectations [of Scouting families]." Id. at 652.
Because the Boy Scouts' expressive purpose was to "inculcate [youth]
with the Boy Scouts' values--both expressively and by example," id. at
649-50, the organization believed that the presence of an openly gay
assistant scoutmaster could be perceived as "promoting homosexual
conduct as a legitimate form of behavior," a message inconsistent with the
expression it wished to convey and the example it wished to set. Id. at 651. The Supreme Court agreed. Because James Dale was openly
gay, his "presence in the Boy Scouts would, at the very least, force the
organization to send a message, both to youth members and the world, that the
Boy Scouts accepts homosexual conduct as a legitimate form of behavior."
Id. at 653. Just as the Boy Scouts believed that "homosexual
conduct is inconsistent with the Scout Oath," id. at 652, the law
schools believe that employment discrimination is inconsistent with their
commitment to justice and fairness. Just as the Boy Scouts maintained that
"homosexuals do not provide a role model consistent with the
expectations of Scouting families," id., the law schools maintain that
military recruiters engaging in exclusionary hiring "do not provide a
role model consistent with the expectations of," id., their students and
the legal community. Just as the Boy Scouts endeavored to "inculcate
[youth] with the Boy Scouts' values--both expressively and by example,"
id. at 649-50, the law schools endeavor to "inculcate" their
students with their chosen values by expression and example in the
promulgation and enforcement of their nondiscrimination policies. FAIR Br. at
22-25. And just as "Dale's presence in the Boy Scouts would, at the very
least, force the organization to send a message, both to youth members and
the world, that the Boy Scouts accepts homosexual conduct as a legitimate
form of behavior," Dale, 530 U.S. at 653, the presence of military recruiters
"would, at the very least, force the law schools to send a
message," both to students and the legal community, that the law schools
"accept" employment discrimination "as a legitimate form of
behavior." Notwithstanding this compelling analogy, the District
Court distinguished our case from Dale by suggesting there was a critical
difference between the forced inclusion of a gay assistant scoutmaster and
the forced presence of an "unwanted periodic visitor," the military
recruiter, in the context of a larger recruiting effort. FAIR, 291 F. Supp.
2d at 304, 305. While there was "no question" that the gay
scoutmaster would "undermine the Boy Scouts' ability to . . . inculcate
its values in younger members," the District Court wrote, the Solomon
Amendment does not compel the law schools to accept the military recruiters
as a "member" and does not "bestow upon them any semblance of
authority." Id. at 305. But our Court has recently held that compulsory
accommodation of a government-prescribed message may violate schools' First
Amendment expressive association rights, even when that message involves our
most revered affirmations of American patriotism--the Pledge of Allegiance
and our National Anthem, is only minimally intrusive and lacks the schools' imprimatur.
The Circle School, 381 F.3d at 182 (holding that a statute requiring private
schools to lead the Pledge of Allegiance and National Anthem violates their
rights under the expressive association doctrine--"Certainly, the
temporal duration of a burden on First Amendment rights is not determinative
of whether there is a constitutional violation . . . . Similarly, the fact
that the schools can issue a general disclaimer does not erase the First
Amendment infringement at issue here, for the schools are still compelled to
speak the [Government's] message."). If the Pledge and Anthem "only
take[] a very short period of time each day," and may be preceded by
"a general disclaimer regarding the recitation," yet do not
"erase the First Amendment infringement at issue here," id., then
focusing on the periodic nature of the military recruiter's visits n11 is
similarly unavailing. n11 Furthermore, the Solomon
Amendment requires law schools to do more than passively accept the presence
of an "unwanted periodic visitor." They must actively assist
military recruiters in a manner equal in quality and scope to the assistance
they provide other recruiters. 10 U.S.C. § 983(b)(1). Moreover, the District Court's scrutiny of the law
schools' belief that the presence of military recruiters will undermine their
expressive message about fairness and social justice violates the Dale
Court's instruction to "give deference to an association's view of what
would impair its expression." 530 U.S. at 653. n12 In Dale, the Court did
more than pay lip service to deference notions. Deference distinguished the
Supreme Court's conclusion on the impairment question from that of the New
Jersey Supreme Court, which had decided the case previously. The state court
had ruled in Dale's favor, holding that because the Boy Scouts have a policy
of "discouraging its leaders from disseminating any views on sexual
issues," Dale's presence would not significantly affect its ability to
disseminate its message. 530 U.S. at 654 (citing Dale v. BSA, 160 N.J. 562,
734 A.2d 1196, 1223 (N.J. 1999) (emphasis in original)). But faced with
competing views--the Boy Scouts' view that Dale's presence impaired their
message and the state court's view that it could not--the Supreme Court
deferred to the Boy Scouts' view. In other words, the reason why there was
"no question" (in the District Court's words in our case, 291 F.
Supp. 2d at 305) that a gay scoutmaster would undermine the Boy Scouts'
message was because the Boy Scouts said it would. Dale, 530 U.S. at 653. In
our case, FAIR has supplied written evidence of its belief that the Solomon
Amendment's forcible inclusion of and assistance to military recruiters
undermines their efforts to disseminate their chosen message of
nondiscrimination. Accordingly, we must give Dale deference to this belief,
n13 and conclude that FAIR likely satisfies the second element of an
expressive association claim. n12 Dale may appear to depart
from prior Supreme Court jurisprudence in this area. In two expressive
association cases from the 1980s, the Court considered the claims of civic
associations that state statutes forcing them to accept women as members
violated their expressive association rights. Bd. of Dirs. of Rotary Int'l v.
Rotary Club of Duarte, 481 U.S. 537, 95 L. Ed. 2d 474, 107 S. Ct. 1940
(1987); Roberts v. United States Jaycees, 468 U.S. 609, 82 L. Ed. 2d 462, 104
S. Ct. 3244 (1984). Closer review explains the distinction from Dale. In both
cases the Court examined the organizations' expressive charitable and humanitarian
purposes and determined that they would not be impaired by the forced
inclusion of women members. Duarte, 481 U.S. at 548-49; Roberts, 468 U.S. at
626-27. The difference in outcome between these cases and Dale--the civic
associations had to admit women, but the Boy Scouts did not have to admit
Dale--underscores the significance of the Court's decision to extend
"deference to an association's view of what would impair its
expression." 530 U.S. at 653. Moreover, we note that the
Supreme Court had previously extended deference to what an expressive
association said would impair its expression. E.g., Meyer v. Grant, 486 U.S.
414, 424, 100 L. Ed. 2d 425, 108 S. Ct. 1886 (1988) ("The First
Amendment protects appellees' right not only to advocate their cause but also
to select what they believe to be the most effective means for so
doing."); Democratic Party of United States v. Wisconsin, 450 U.S. 107,
123-24, 67 L. Ed. 2d 82, 101 S. Ct. 1010 (1981) ("[A] court[] may not
constitutionally substitute its own judgment for that of the Party. A
political party's choice among the various ways of determining the makeup of
a State's delegation to the party's national convention is protected by the
Constitution."). n13 Furthermore, the law schools
are entitled to at least as much deference as the Boy Scouts, as the Supreme
Court has recognized in other contexts that universities and law schools
"occupy a special niche in our constitutional tradition," Grutter
v. Bollinger, 539 U.S. 306, 329, 156 L. Ed. 2d 304, 123 S. Ct. 2325 (2003),
because of their "vital role in . . . democracy," Sweezy v. New
Hampshire, 354 U.S. 234, 250, 1 L. Ed. 2d 1311, 77 S. Ct. 1203 (1957). The
Court has acknowledged the importance of "autonomous decisionmaking by
the academy." Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226
n.12, 88 L. Ed. 2d 523, 106 S. Ct. 507 (1985); Sweezy, 354 U.S. at 263
(Frankfurter, J., concurring) (recognizing "four essential
freedoms" of a university "to determine for itself on academic grounds
who may teach, what may be taught, how it shall be taught, and who may be
admitted to study"). The Supreme Court's academic freedom jurisprudence
thus underscores the importance of Dale deference in our case. (c) Balancing of interests The third step in evaluating an expressive association
claim is "balancing the First Amendment interests implicated by the
Solomon Amendment with competing societal interests to determine whether the
statute transgresses constitutional boundaries." FAIR, 291 F. Supp. 2d
at 310. n14 We need not linger on this analysis. Rarely has government action
been deemed so integral to the advancement of a compelling purpose as to
justify the suppression or compulsion of speech. We presume that the
Government has a compelling interest in attracting talented military lawyers.
n15 But "it is not enough to show that the Government's ends are
compelling; the means must be carefully tailored to achieve those ends."
Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 106 L. Ed. 2d
93, 109 S. Ct. 2829 (1989). n14 The District Court rejected
FAIR's argument that strict scrutiny applies because it did not believe that
the Solomon Amendment directly burdens expressive association rights. FAIR,
291 F. Supp. 2d at 310-311. But because we concluded at step two that the
Solomon Amendment impairs law schools' expression, strict scrutiny will
apply. Dale, 530 U.S. at 659 (rejecting the argument that only intermediate
scrutiny should apply); The Circle School, 381 F.3d at 182 (applying strict
scrutiny to statute impairing schools' expressive association rights by
requiring them to lead the Pledge of Allegiance and National Anthem). n15 Our colleague in dissent
states that "we do not write on a clean slate regarding the importance
Congress places in access to college and university facilities by the
military" and that "we have already decided that issue contrary to
the argument pressed by Appellants." In United States v. City of
Philadelphia, 798 F.2d 81 (3d Cir. 1986), our Court acknowledged that
"Congress considers access to college and university employment
facilities by military recruiters to be a matter of paramount
importance." Id. at 86. City of Philadelphia, however, is
distinguishable from this case in two important respects. First, in that case
the university invited the military recruiters on campus; the recruiters'
presence was not effectively dictated by a statute, as is the case here. Id.
at 83. Second, City of Philadelphia engaged in a conflict preemption analysis
and held that, because it was not possible for the university to comply with
both a Philadelphia anti-discrimination ordinance and the clear congressional
policy concerning military recruitment on campus, the ordinance was
preempted. Id. at 88-89. Our Court did not reach a balancing-of-interests
inquiry. Therefore, neither this Court's prior acknowledgment of the
importance Congress places on military recruiting on college and university
campuses, nor our presumption in this case that there is an important governmental
interest in attracting talented lawyers to the military, ends our analysis.
Rather, we must go on to reach an issue that was not present in City of
Philadelphia--whether the Solomon Amendment is narrowly tailored to achieve
the Government's ends. As we explain in the final section of our opinion, infra
Part III.B.3(b), the Solomon Amendment could barely be tailored more broadly.
Unlike a typical employer, the military has ample resources to recruit
through alternative means. For example, it may generate student interest by
means of loan repayment programs. And it may use sophisticated recruitment
devices that are generally too expensive for use by civilian recruiters, such
as television and radio advertisements. These methods do not require the assistance
of law school space or personnel. And while they may be more costly, the
Government has given us no reason to suspect that they are less effective
than on-campus recruiting. The availability of alternative, less speech-restrictive
means of effective recruitment is sufficient to render the Solomon Amendment
unconstitutional under strict scrutiny analysis. Sable, 492 U.S. at 126; The
Circle School, 381 F.3d at 182. But our path in this case is even clearer.
The Government has failed to proffer a shred of evidence that the Solomon
Amendment materially enhances its stated goal. And not only might other
methods of recruitment yield acceptable results, they might actually fare
better than the current system. In fact, it may plausibly be the case that the
Solomon Amendment, which has generated much ill will toward the military on
law school campuses, n16 actually impedes recruitment. n17 n16 See, e.g., FAIR, 291 F. Supp.
2d at 282 (describing record evidence of student protests over military
recruiting). n17 The dissent, applying the
balancing-of-interests test from Roberts, 468 U.S. at 620, comes to the
opposite conclusion--"that the law schools' interests here fall at the
remote extreme of Justice Brennan's spectrum-'where that relationship's objective
characteristics locate it . . . [near] the most attenuated of personal
attachments.'" This balancing test, however, comes not from the portion
of Roberts dealing with freedom of expressive association, but from the
portion dealing with freedom of intimate association. The law schools are
clearly not intimate associations, and where they may fall on the spectrum
articulated by Justice Brennan for determining whether particular
relationships merit protection under that doctrine is irrelevant to our analysis
here. In Roberts, the Court went on to engage in a strict scrutiny expressive
association analysis and applied the balancing test we apply here,
determining that the Government had a compelling interest in eliminating
discrimination and that the statute at issue was the least restrictive means
of achieving that end. Roberts, 468 U.S. at 620. FAIR likely satisfies the three elements of an
expressive association claim. The law schools are expressive associations,
they believe the message they choose to express is impaired by the Solomon
Amendment, and no compelling governmental interest exists in the record to
justify this impairment. Therefore, FAIR has a reasonable likelihood of
success on the merits of its expressive association claim against the Solomon
Amendment. 2. Compelled Speech The Supreme Court has long recognized that, in addition
to restricting suppression of speech, "the First Amendment may prevent
the government from . . . compelling individuals to express certain
views." United States v. United Foods, Inc., 533 U.S. 405, 410, 150 L.
Ed. 2d 438, 121 S. Ct. 2334 (2001) (citing, inter alia, W. Va. State Bd. of
Educ. v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943)).
"At the heart of the First Amendment lies the principle that each person
should decide for himself or herself the ideas and beliefs deserving of
expression, consideration, and adherence." Turner Broad. Sys, Inc. v.
FCC, 512 U.S. 622, 641, 129 L. Ed. 2d 497, 114 S. Ct. 2445 (1994). Consistent with this principle, the Supreme Court has
found impermissible compelled speech in three categories of government
action. The first is government action that forces a private speaker to
propagate a particular message chosen by a government. See Barnette, 319 U.S.
at 642 (state could not enforce compulsory flag salute statute); Wooley v.
Maynard, 430 U.S. 705, 717, 51 L. Ed. 2d 752, 97 S. Ct. 1428 (1977) (state
could not require drivers to display state motto on their license plates).
The second is government action that forces a private speaker to accommodate
or include another private speaker's message. See Hurley v. Irish-American
Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 581, 132 L. Ed.
2d 487, 115 S. Ct. 2338 (1995) (state nondiscrimination statute could not be
constitutionally applied to require parade organizers to include a contingent
of gay marchers behind their own banner); Pacific Gas & Elec. Co. v. Pub.
Utils. Comm'n, 475 U.S. 1, 12-16, 89 L. Ed. 2d 1, 106 S. Ct. 903 (1986)
(state regulatory commission could not require public utility to distribute
ratepayer-group's message in the extra space of the utility's billing
statements); Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258, 41 L.
Ed. 2d 730, 94 S. Ct. 2831 (1974) (state could not force newspaper to provide
equal editorial-page space to candidates it opposes). The third category is
government action that forces an individual to subsidize or contribute to an
organization that engages in speech that the individual opposes. See United
Foods, 533 U.S. at 413 (Congress could not require mushroom growers to pay
assessments to fund advertisements to promote mushroom sales); Abood v.
Detroit Bd. of Educ., 431 U.S. 209, 235, 52 L. Ed. 2d 261, 97 S. Ct. 1782
(1977) (state could not compel non-union employees to pay union dues to
promote union causes). n18 FAIR argues that the Solomon Amendment forces law
schools to propagate, accommodate, and subsidize the military's recruiting,
and therefore implicates each of the three varieties of compelled speech
cases. n18 We note that the
subsidization line of compelled speech case law is the only one of these
three categories addressed by the dissent. The District Court rejected FAIR's argument and held that
the law schools are not compelled to express a particular ideological message
by admitting and actively assisting the military recruiters. We disagree. As
we explain in the analysis that follows, the military's recruiting is
expressive of a message with which the law schools disagree. To comply with
the Solomon Amendment, the law schools must affirmatively assist military
recruiters in the same manner they assist other recruiters, which means they
must propagate, accommodate, and subsidize the military's message. In so
doing, the Solomon Amendment conditions funding on a basis that violates the
law schools' First Amendment rights under the compelled speech doctrine. (a) Recruiting is expression. The expressive nature of recruiting is evident by the oral
and written communication that recruiting entails: published and posted
announcements of the recruiter's visit, published and oral descriptions of
the employer and the jobs it is trying to fill, n19 and the oral
communication of an employer's recruiting reception and one-on-one
interviews. The expressive nature of recruiting is also evident in its
purpose--to convince prospective employees that an employer is worth working
for. So understood, recruiting necessarily involves "communication of
information, the dissemination and propagation of views and ideas, and the
advocacy of causes"--the hallmarks of First Amendment expression.
Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632, 63
L. Ed. 2d 73, 100 S. Ct. 826 (1980) (soliciting for charitable cause is
expression entitled to First Amendment protection); see also Thomas v.
Collins, 323 U.S. 516, 538, 89 L. Ed. 430, 65 S. Ct. 315 (1945) (recognizing
First Amendment protection for the solicitation of union members). n19 For example, most recruiters
submit a National Association for Law Placement ("NALP") form that,
as NALP puts it, "offers employers a thorough yet succinct way to tell
their story to candidates" and includes a "narrative" section
to "discuss the special characteristics" of the employer. NALP
compiles these forms into a directory, which is distributed and/or made
available by both law schools and employers to prospective employees. The District Court held that recruiting is not
expressive activity because it "differs dramatically" from other
forms of expressive activity, such as soliciting contributions and
proselytizing. While soliciting and proselytizing cannot be separated from
the "concomitant advocacy of a particular case or viewpoint," the
District Court reasoned, recruiting does not advocate any particular cause
but only has "an economic or functional motive." FAIR, 291 F. Supp.
2d at 307-08. We agree with the District Court that soliciting and
proselytizing are obvious forms of expressive activity. We part, however, on
the notion that efforts to raise a legal staff are "economic or
functional" while efforts to raise funds and membership are not.
Recruiting, soliciting and proselytizing are similarly economic and
functional and, at the same time, similarly expressive. Recruiting conveys
the message that "our organization is worth working for," while
soliciting and proselytizing convey the similar functional message that
"our charity is worth giving to" or "our cause is worth
joining." Having determined that recruiting is expressive, we now
turn to the law schools' disagreement with that expression. (b) The law schools' disagreement with the speech of
military recruiters. Military recruiters visiting law school campuses
undoubtedly speak to students about the benefits of a career in the military,
and the Solomon Amendment requires law schools to accept this speech. The law
schools do not seem to take issue with most of the "expressions of
value, opinion, or endorsement," Hurley, 515 U.S. at 573, made by military
recruiters on campus (to the extent recruiters suggest that military careers
are honorable and rewarding experiences). Nor, for the most part, do military
recruiters describing careers in the military make "statements of fact
the [law schools] would rather avoid." Id. The law schools' lack of objection to most of the speech
they are forced to accept within their fora raises a key question under the
compelled speech doctrine: to what extent must they disagree with the
Government's message in order for strict scrutiny to apply? Justice Souter's
dissent in Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 138
L. Ed. 2d 585, 117 S. Ct. 2130 (1997), summarized the Court's jurisprudence
to that time in suggesting that it is not necessary to show disagreement in
order to sustain a compelled speech challenge. The requirement of disagreement
finds no legal warrant in our compelled-speech cases. In Riley [v. National
Federation of Blind, Inc., 487 U.S. 781, 101 L. Ed. 2d 669, 108 S. Ct. 2667
(1988)], for example, we held that the free-speech rights of charitable
solicitors were infringed by a law compelling statements of fact with which
the objectors could not, and did not profess to, disagree. See 487 U.S., at
797-98, 108 S. Ct. , at 2677-2678. See also Hurley, 515 U.S., at 573, 115 S.
Ct. , at 2347 ("[The] general rule, that the speaker has the right to
tailor the speech, applies not only to expressions of value, opinion, or
endorsement, but equally to statements of fact the speaker would rather avoid
. . . [.]"); Barnette, 319 U.S., at 635, 63 S. Ct. , at 1183-1184 (if
the Free Speech Clause bars the government from making the flag salute a
legal duty, nonconformist beliefs are not required to exempt one from
saluting). Indeed, the Abood cases themselves protect objecting employees
from being forced to subsidize ideological union activities unrelated to
collective bargaining, without any requirement that the objectors declare
that they disagree with the positions espoused by the union. See, e.g.,
[Chicago Teachers Union v. Hudson, 475 U.S. 292, 301-02, 89 L. Ed. 2d 232,
106 S. Ct. 1066 (1986)]; Abood, 431 U.S., at 234, 97 S. Ct. , at 1799.
Requiring a profession of disagreement is likewise at odds with our holding
two Terms ago that no articulable message is necessary for expression to be
protected, Hurley, supra, at 569, 115 S. Ct. , at 2345; protection of speech
is not limited to clear-cut propositions subject to assent or contradiction,
but covers a broader sphere of expressive preference. . . . One need not "disagree"
with an abstractionist when buying a canvas from a representational painter;
one merely wishes to support a different act of expression. Glickman, 521 U.S. at 488-89 (Souter, J., dissenting,
joined by Rehnquist, C.J., Scalia, J., and Thomas, J.). Despite the numerous precedents to the contrary
discussed by Justice Souter, it is possible to read the Glickman majority as
implicitly endorsing a disagreement requirement in the compelled speech
context. Glickman involved a First Amendment challenge to regulations
requiring fruit growers, handlers, and processors to finance generic
advertising of California nectarines, plums, and peaches. Id. at 460. The
majority "presumed" that the fruit growers, handlers, and
processors "agreed with the central message of the speech that is
generated by the generic [government] program [at issue]," and stated
that "compelled speech case law" was "inapplicable"
because the scheme at issue did not, inter alia, "require them to use
their own property to convey an antagonistic ideological message," or
"force them to respond to a hostile message when they would prefer to
remain silent," id. at 470-71 (citations and internal quotation marks
omitted) (emphases added). However, because the degree of disagreement that
may be required is minimal and in any event is present in this case, we need
not determine whether such a requirement exists nor, if so, decipher its
precise bounds. As our dissenting colleague recently explained, the
"individual's disagreement [in a compelled speech case] can be minor, as
'the general rule is that the speaker and the audience, not the government,
assess the value of the information presented.'" Cochran v. Veneman, 359
F.3d 263, 275 (3d Cir. 2004) (quoting United Foods, 533 U.S. at 411). In
Cochran, we held unconstitutional a law requiring dairy producers to pay
small assessments in support of "generic advertising that promotes
milk." Id. Although the aggrieved dairy producers did not disapprove of
the pro-milk message at issue, the ads featured milk "produced by
methods they viewed as wasteful and harmful to the environment," and did
not promote milk produced by their own favored methods. Id. The ads, in
effect, served to promote milk produced by efforts with which the plaintiff
dairy producers disagreed. Here the law schools similarly object to conveying the
message that all employers are equal, and instead would rather only open
their fora and use their resources to support employers who, in their eyes,
do not discriminate against gays. This objection constitutes as much of a
protected First Amendment interest as the objection of the dairy farmers in
Cochran. Moreover, there is at least one important sense in which the law
schools strenuously disagree with the very words spoken by military
recruiters that the Solomon Amendment compels them to accept and to which
they have been forced to respond. 10 U.S.C. § 654(b) prohibits open,
practicing gays from serving in the armed forces. Military recruiters undisputedly
are bound by § 654(b), and do not recruit gay persons for service.
Unsurprisingly, in light of § 654(b), the record demonstrates that openly gay
persons who meet with military recruiters are told by the recruiters that
they may not pursue military careers. n20 Such speech by military recruiters
is perhaps the most discordant speech the Solomon Amendment compels the law
schools to accept. Yet, as we have indicated, the act of being forced to
accept speech promoting an employer whose discriminatory policies the law
schools disagree with is sufficient "disagreement" to bring the
Solomon Amendment within the Supreme Court's compelled speech jurisprudence. n20 See JA107 (former ROTC
student who had "wanted to be an officer in the JAG Corps since high
school" interviewed with military recruiter, admitted his homosexuality,
and was told that he was "ineligible due to his sexual
orientation"). Thus, unlike the regulatory scheme at issue in Glickman,
the Solomon Amendment, by requiring law schools to open their fora to
military recruiters when they would prefer to do so only for
non-discriminating employers, "requires them to use their own property
to convey an antagonistic ideological message." Glickman, 521 U.S. at
471. Likewise, by directly providing "access" to campuses for
speech by military recruiters where law students are told that openly gay
applicants may not serve, the Solomon Amendment requires the law schools to
allow an objectionable message counter to their beliefs. In addition, both
forms of speech with which the law schools disagree have resulted in,
according to the record, hundreds (if not thousands) of instances of
responsive speech by members of the law school communities (administrators,
faculty, and students), including various broadcast e-mails by law school
administrators to their communities, posters in protest of military recruiter
visits, and open fora held to "ameliorate" the effects of forced
on-campus speech by military recruiters. All of these represent instances in
which the schools were "forced . . . to respond to a hostile message
when they would prefer to remain silent." Id. (internal quotation marks
omitted). Therefore, the degree of the law schools' disagreement with the
military recruiters' expression is sufficient to warrant First Amendment
protection. We now determine whether the Solomon Amendment compels the law
schools to engage in that expression. (c) The law schools must propagate, accommodate, and
subsidize the military's expressive message. Reasoning that the Solomon Amendment was not "an
outright regulation on speech," the District Court held that the Supreme
Court's compelled speech doctrine did not apply. FAIR, 291 F. Supp. 2d at
309. Put another way, the District Court concluded that the statute does not
"directly require a private speaker to participate in the dissemination
of a particular message." Id. We disagree. Having concluded above that recruiting is
expression, we believe that the Solomon Amendment compels the law schools to
engage in that expression in all three proscribed ways: propagation,
accommodation, and subsidy. The statute insists not only on access to campus
for military recruiters, but the active and equal assistance of law schools'
career services offices. For example, Harvard Law School's career services
staff offers to assist employers to "get [their] message out to students
in an effective manner." Like many law schools, the assistance Harvard
provides includes coordinating interviews with students, counseling employers
on effective recruiting, stuffing students' mailboxes with employers'
information, scheduling social receptions for students, and printing
employers' announcements in the School's newsletter. Under the express terms
of the Solomon Amendment, law schools like Harvard must do the same for the
military recruiters. By requiring law schools to help military recruiters
"get [their] message out to students" by distributing newsletters
and posting notices, the Solomon Amendment compels law schools to propagate
the military's message. Like the forced display of an unwanted motto on one's
license plate, or the compulsory recitation of a pledge, this is compelled
speech. Wooley, 430 U.S. at 717; Barnette, 319 U.S. at 642. By requiring
schools to include military recruiters in the interviews and recruiting
receptions the schools arrange, the Solomon Amendment compels the schools to
accommodate the military's message in the recruiting-assistance programs they
provide for other employers. Like the forced inclusion of a parade
contingent, a statement in the extra space of a utility's billing statement,
or a response in a newspaper's editorial page, this is compelled speech. See
Hurley, 515 U.S. at 569-81; Pacific Gas, 475 U.S. at 12-16; Miami Herald, 418
U.S. at 255-58. And by putting demands on the law schools' employees and
resources, n21 the schools are compelled to subsidize the military's
recruiting message. Like mandatory assessments to support advertisements or
political funds, this is compelled speech. See United Foods, 533 U.S. at 411-17;
Abood, 431 U.S. at 235. N21 While we recognize that the
relative cost of providing these services to one particular employer is
marginal, the Supreme Court has never required that compelled subsidies be
substantial to present a constitutional concern. See, e.g., United Foods, 533
U.S. at 408 (mushroom assessment at issue was one cent per pound and only
some of it was going toward the objectionable advertising). (d) The Solomon Amendment prohibits disclaimers and,
even if it did not, risk of misattribution is not an element of a compelled
speech violation. The District Court suggested that assisting military
recruiters is not "obvious endorsement" by the law schools of the
military's point of view because "law schools can effectively disclaim
any recruiting message and can easily distance themselves ideologically from
the military recruiters." FAIR, 291 F. Supp. 2d at 308, 310. But the
Solomon Amendment, as recently amended, does not appear to permit law schools
to disclaim the military's message. Its express terms require them to provide
treatment to the military recruiters "equal in quality and scope"
to that provided to other employers. As the law schools do not disclaim the
messages of those employers, similarly they may not disclaim the message of the
military. Furthermore, it was in apparent response to the law schools'
ameliorative measures--their efforts to "distance themselves" (in
the District Court's words) from the military's position--that the DOD and
eventually Congress insisted on equal treatment for military recruiters. But even if the Solomon Amendment allowed for
disclaimers, the Supreme Court has never held that compelled speech concerns
evaporate if a speaker can ameliorate the risk of misattribution by
disclaiming the message it is being compelled to propagate. To the contrary,
"the presence of a disclaimer . . . does not suffice to eliminate the
impermissible pressure . . . to respond to [compelled] speech." Pacific
Gas, 475 U.S. at 15 n.11 (plurality opinion). While a disclaimer reduces the
risk that readers will misattribute the message, it "does nothing to
reduce the risk that [the compelled speaker] will be forced to respond when
there is strong disagreement with the substance of [the] message." Id.
Thus, in Pacific Gas, the Supreme Court invalidated as compelled speech a
requirement that a utility share the extra space in its billing statements
with an organization that opposed its viewpoint. The utility's ability to
include a disclaimer did not change the analysis. In fact, a "forced
reply" may add to the injury of compelled speech, not its cure. Id. at
15-16 (noting that the "pressure to respond" to compelled speech is
"antithetical to the free discussion that the First Amendment seeks to
foster"). In Miami Herald, the Supreme Court also invalidated a
state law compelling newspapers to provide editorial page space to any
political candidates that the newspaper assailed in an editorial. 418 U.S. at
255-58. It did not suggest that a newspaper could alleviate compelled speech
by running a disclaimer above the candidate's message. n22 n22 While the newspapers could
avoid triggering the penalty of having to provide editorial page space to
assailed candidates by not criticizing any candidates at all, the Court noted
that this self-censorship was a form of speech suppression, itself a First
Amendment injury. 418 U.S. at 257. Our case presents this self-censorship
concern as well, as the law schools could avoid triggering--or at least
minimize--the quality and scope of active assistance they must provide to
military recruiters by limiting the quality and scope of their assistance to
other recruiters. Similarly, in Wooley the Court held that the state motto
on the Maynards' license plate was compelled speech even though the state
supreme court had expressly found in another case that "nothing in the
state law . . . precludes appellees from displaying their disagreement with
the state motto as long as the methods used do not obscure the license
plates." 430 U.S. at 722 (Rehnquist, J., dissenting) (citing State v.
Hoskin, 112 N.H. 332, 295 A.2d 454 (1972)). n23 On the facts of Wooley, there
was virtually no risk that the compelled speech would be attributed to anyone
other than the state. n23 The Supreme Court has expressed
concerns about misattribution and ability to disclaim in several of its
compelled speech cases. See Hurley, 515 U.S. at 557 (noting that parade
organizers do not customarily "disavow 'any identity of viewpoint'
between themselves and the selected participants" and that "such
disclaimers would be quite curious in a moving parade"); Turner
Broadcast System v. FCC, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445
(1994) ("TBS") (noting that regulations requiring cable operators
to carry broadcast signals posed little risk of misattribution because
broadcasters are required by federal regulation to identify themselves at
least once every hour); PruneYard Shopping Center v. Robins, 447 U.S. 74, 87,
64 L. Ed. 2d 741, 100 S. Ct. 2035 (1984) (suggesting that there was no risk
that the message of students distributing political pamphlets and conducting
a petition drive at a shopping mall would be attributed incorrectly to the
mall owner and noting that the mall owner could disavow any connection with
the message by posting signs near the petition table). But in none of these cases did
the Court hold that the risk of misattribution and the speaker's ability to
disclaim the message were dispositive elements of the compelled speech
doctrine. In Hurley, the Court noted that it was not "deciding on the
precise significance of the likelihood of misattribution" and did not
rest its holding on the parade organizer's presumed difficulty in disclaiming
the gay marchers' message. 515 U.S. at 557. And in both PruneYard and TBS the
absence of a risk of misattribution was only one of a number of factors
distinguishing them from prior cases in which compelled speech had been
found. PruneYard, 447 U.S. at 87; TBS, 512 U.S. at 654-55. The Court also
considered the content-neutral nature of the law causing the challenged
"compelled" speech, the nonexistent risk of self-censorship, and
the unique characteristics of the forum (the Court later described the
shopping mall in PruneYard as a "peculiarly public" forum, see
Pacific Gas, 475 U.S. at 13 n.8; the TBS Court noted cable's monopoly status
and exclusive control over the "essential pathway" for
disseminating a particular type of communication). TBS, 512 U.S. at 654-56;
PruneYard, 447 U.S. at 87-88. And while PruneYard comes closest to holding
that a speaker's ability to disclaim a message may be relevant to the
compelled speech analysis, it is notable that PruneYard predated Pacific Gas,
the most express rejection of the ability to disclaim as an antidote for
compelled speech. Pacific Gas, 475 U.S. at 15 n.11 (plurality opinion)
("The presence of a disclaimer . . . does not suffice to eliminate the
impermissible pressure on the appellant to respond to [the unwanted] speech .
. . ."). In sum, law schools are expressly precluded from disclaiming or retorting the military's recruiting message by the Solomon Amendment's new requirement that their treatment of military recruiters b | |
