48 Pages Posted: 19 Aug 2006
The Supreme Court was unanimously wrong in Rumsfeld v. FAIR. Though rare, it's not the first time the Court has been unanimously wrong. Its most notorious such decisions have come, like FAIR, in cases where the Court conspicuously failed even to appreciate the importance of the constitutional freedoms under attack from legislative majorities. In these cases, the Court's very rhetoric exposed its myopic vision in ways that now seem embarrassing. Does FAIR, so obviously correct to so many people right now, await the same ignominy decades away? FAIR was wrong in tone, a dismissive vox populi, adopted by a Court reflecting and reinforcing popular reactions to the case. But most importantly FAIR was wrong in rationale, which is worse than getting a single result wrong. Not very much of practical significance for the whole country ordinarily hinges on the result in a single case settling the claim of a single litigant or group of litigants. Whether law schools may exclude military recruiters who, following federal "Don't Ask, Don't Tell" (DADT) policy, discriminate against gay law students, doesn't matter that much to most people. But the rationale justifying the result in a single case can have significant consequences because it can affect decisions in the future. In FAIR, the Supreme Court botched several doctrines in its ordinarily libertarian free-speech jurisprudence, including the foundational question of what counts as protected speech, and it botched them all in a way that could constrict liberty. Whether FAIR has harmful long-term effects for speech awaits future decisions, but Chief Justice John Roberts' first major constitutional decision gives us some reason to worry.
The fact of unanimity - it was 8-0 and likely would have been 9-0 if Justice Samuel Alito had participated - does not make the decision less wrong. If it is indeed wrong, unanimity only makes its wrongness more egregious, putting in very stark relief the failure of even a single justice on the current Court to overcome the passions of the moment in order to safeguard constitutional freedoms. Instead of defending liberty, the Court's conservatives apparently saw a chance to defend military honor against law-school elites. Its liberals apparently saw a chance to defend government power while proving they can be cold-eyed realists on matters of national security. In Part I, I briefly describe some relevant background about the Solomon Amendment and the litigation challenging it. The Solomon Amendment began modestly, involving only Defense Department funds, but quickly metastasized. In Part II, I discuss the unconstitutional-conditions doctrine, an important issue raised by the Solomon Amendment and likely to figure prominently in the future of liberty and federalism but one that is left mostly untouched by FAIR. In Part III, I analyze the Court's treatment of free speech and the freedom of association. On free speech, the Court unsuccessfully distinguished its compelled-speech cases and seemingly narrowed the reach of its third-party speech cases. It also minted a test for expressive conduct based on "inherent expressiveness" that is either completely unworkable or extremely narrow. On the freedom of association, the Court narrowed its jurisprudence largely to concerns about membership and seemingly dropped any deference to an association's own judgment about whether compliance with state regulation would significantly impair its message. Both of these holdings are a break with the Court's precedents.
Keywords: free speech, freedom of association, compelled speech, rumsfeld, fair, forum for academic and institutional rights, solomon amendment, don't as don't tell, gays, homosexuals, military, law schools, federalism, unconstitutional conditions, libertarian, liberty, freedom
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