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Debate Club

Is FAIR v. Rumsfeld Bad For Free Speech?

Mark Moller and Angus Dwyer debate.

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In the Supreme Court's 8-0 ruling that the government can force law schools to host military recruiters, Chief Justice John Roberts wrote that recruiting is not an "inherently expressive" activity because law schools "are not speaking when they host interviews and recruiting receptions." The Court overruled the Third Circuit, which held that cutting off federal financing to universities that ban military recruiters was unconstitutional because it violated the schools' right to protest the military's anti-gay policies.

Question: What effect will FAIR v. Rumsfeld have on the freedom of association and other First Amendment values?

Mark Moller is the editor-in-chief of the Cato Supreme Court Review and a co-author of Cato's amicus brief in FAIR v. Rumsfeld. Angus Dwyer is a third-year student at Yale Law School, where he is active in the Federalist Society.

Moller: 3/7/06, 12:13 PM
FAIR's opponents are convinced its arguments border on the laughably frivolous. If so, there's not much to discuss. But it's more accurate to say that FAIR's arguments lie at the intersection of a jumble of conflicting, imperfectly theorized, and indecisive precedents. Because of this muddy context, many paths were open to the Court in rejecting FAIR's position. The one it chose was probably the most obvious and least adventurous, but not clearly the wisest.

The Court's decision leaves open two possible problems, one of which might trouble some folks on the right, while the other may give pause to those on the left.

First, the Court seems to have regressed on—or at least added ambiguity to—the question of free association. Once upon a time, First Amendment libertarians were giddy over Boy Scouts of America v. Dale, the 2000 case in which the Court held that the Scouts could exclude a homosexual scoutmaster. In 2001, for example, Michael Stokes Paulsen noted that "group freedom [under the First Amendment] means that the group gets to decide what messages the group wishes to express . . . and how and through whom it will communicate the messages it chooses." Heady stuff. Alas, it's time to cork the champagne. In FAIR, the Supreme Court leaves us with an anemic version of "group freedom," limited to a bare right to control "membership" alone. The bottom line is that the expansive vision of associational autonomy cheered on the right post-Dale seems to have withered on the vine—to the sound, I'll add, of thunderous conservative applause.

Second, the Court seems to have opened the floodgates on the amount of deference Congress gets when it regulates "military affairs" in the shadow of the First Amendment. Remember, the Justice Department didn't provide a shred of evidence that the law schools were hurting military recruiting or national security. (My inner Joe Scarborough might quip that Berkeley is doing national security a favor by denying JAG access to its baby lawyers. But I digress.) Past Supreme Court decisions were unclear on this point. An old view, stretching back to Lincoln, was that the private sphere gets a presumption of autonomy—the government must prove the need to override. But the Chief Justice's recent opinion hints at the reverse. Where Congress regulates in the realm of "military affairs," Roberts writes, deference is at its "apogee"—whether or not the legislation is subject to First Amendment restraints. When, if ever, is proof of actual harm to national security required? The recent decision left that unclear, but the ringing endorsement of "broad and sweeping" deference can't be heartening to civil libertarians.

There are a host of other things to talk about, of course. What are unconstitutional conditions? We didn't know before FAIR and we still don't. What in the world is "inherently" expressive conduct? How does it differ from plain old expressive conduct? Finally, to crib one of Paul Horwitz's arguments, did the Court bungle an opportunity to uphold deference to private institutions that "play a central role in the First Amendment —universities, the press, religious institutions?" I open the floor.

Dwyer: 3/7/06, 09:39 PM
I agree with some of the points you make. First, I'm certainly not one of the FAIR opponents who found its arguments "laughably frivolous". I thought they were wrong, of course, and that the government had the more compelling argument based on the precedents, but I'll happily concede that the issue was much closer than the eventual 8-0 decision made it appear, and that FAIR's argument was based on a plausible, if incorrect, reading of the precedents.

You're also clearly right that the expressive association right Roberts describes in FAIR is not as expansive as the one Michael Stokes Paulsen, et al., believed they saw in Dale. But was that belief ever reasonable? On its face, Dale deals only with the issue of membership in expressive associations—quite reasonably, since that was the only issue before the Court. It may be that the principles underlying the decision in Dale could have broader implications (though I doubt as broad as FAIR claimed) but it is surely no kind of a betrayal of Dale to say that Dale says what Dale said, rather than what Paulsen hoped it meant.

The real question, of course, is not what Dale says, but what the Constitution, particularly the First Amendement, says. Can private associations keep out government agents who are enforcing an otherwise valid law because such intrusiveness may compromise the group's ability to express its views? The Cato Institute may, for example, view elevator safety inspectors as egregious exemplars of governmental paternalism, against which the Institute is a dedicated, if occasionally Quixotic, crusader. It seems clear that on the grounds of protecting expressive association, the government cannot force Cato to accept partisans of elevator inspecting into its membership. Does the First Amendment also give the Institute the right to block safety inspections on its elevators on the ground that they would hamper its ability to express its anti-paternalism message? It seems hard to square such a position with basic notions of how the police powers operate.

On the issue of deference to Congressional action in "military affairs," I'm not sure I buy your account of the status quo before FAIR. Have we required the government to make a showing that an all-volunteer army would be inadequate before permitting the establishment of a military draft? The draft, after all, is surely a far greater deprivation of liberty than anything the law schools have been forced to endure. I was under the impression that deference to the determinations of the political branches as to questions of military necessity was the longstanding practice of the Court and that the Chief Justice's statements to that effect were wholly unexceptional.

I can't wait to talk unconstitutional conditions, as the Court's deliberate avoidance of that hoary precedental morass was my favorite part of the opinion, but I guess that can wait until tomorrow.

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Moller: 3/8/06, 07:02 AM
Angus, I'm glad you agree this case was closer than the vote suggests. But it is hard to see why you think so. Yes, Dale concerned a group's right to choose members. But Dale was also an instance of a larger constitutional principle.

Don't take my word for it. Take Dale's. There, Chief Justice Rehnquist said that "actions that may unconstitutionally burden [associational] freedom take many forms, one of which is . . . a 'regulation that forces the group to accept members it does not desire.'" In Dale, then, the Court understood the right at stake as just one example of a larger sphere of associational autonomy, whose boundaries would be worked out later. That's only common sense: the principal benefit of joining an association isn't simply being a member of the group, its the opportunity to pool and coordinate resources. If we are to protect meaningful associational autonomy, we must therefore recognize that the members of the group have some autonomy to use their resources as part of an expressive strategy—without outside interference.

Of course, we have to balance associational rights and outside interests. But we also have to think rigorously about how to do so in a real, not a make-believe, world. Far-out hypos about Cato and elevator repair don't do the job.

When applying Dale, I'd start by giving deference to associations whose business has long been central to the First Amendment's concerns—including universities. At a minimum, I'd apply deference when it's reasonable to think denying the chosen form of expression might interfere with the university's management of conflict between students and teachers, a concern that goes to the heart of these associations' self-governance.

Here, the law schools sought to exclude a powerful employer from a single campus event. They did so to teach a controversial lesson to students. Isn't it at least arguable that this strategy—whose bite falls mostly on an outside entity, rather than on dissenting students—is far less likely to polarize the campus than other expressive strategies the Court and government would permit (e.g., mass on-campus rallies, organized shaming of JAG interviewees)? What qualifies you, me, or the Court to judge differently?

Of course, competing national security interests must be weighed in the balance. But when Congress butts up against the First Amendment, surely the logic of the Bill of Rights requires the government to show a least "some evidence" it is remedying a tangible harm? It is a challenge, I daresay, to read the plain language of cases like Schenck, Abrams, and New York Times v. United States otherwise.

And, let me stress: First Amendment principles aren't conservative, and they're not liberal. They are pre-political. Sadly, the tidy conformity (and vehemence) of conservative opinion about the case would suggest many conservatives (present company excluded, of course) are operating under a different assumption.

Dwyer: 3/8/06, 09:55 PM
I don't want to belabor the elevator repair point, but I continue to think the analogy, while "far-out", is nevertheless apt, and is a real implication of the rather expansive view of the right of expressive association you're advocating.

It seems to me that the FAIR case is pretty easily distinguishable from Schenck, Abrams, and New York Times v. United States. In each of those cases, the underlying activity the government sought to punish or prevent—distributing flyers in opposition to government policy, publishing a news report in a newspaper—is obviously in the core set of rights the First Amendment protects. The question in those cases was whether national security licensed limited abridgments of those First Amendment rights. In FAIR, by contrast, the whole question was whether the right asserted by the law schools was or was not one of the rights protected by the First Amendment at all. Since the Court decided that it wasn't, Congress never butted up against the Bill of Rights, and the kind of weighted balancing you're envisioning never came into play.

At bottom, I think the "judicial deference... is at its apogee" language is probably just dicta, and probably not worth getting too worried over.

Putting on my tea leaf-reading hat, I want to move on to the part of the opinion that I think First Amendment libertarians should, if not love, at least welcome: its treatment of the unconstitutional conditions issue.

It's true, as you say, that the Court's opinion gets us no closer to understanding whether the line between permissible and unconstitutional conditions is. The Chief Justice side-steps the issue by deciding Congress could have directly legislated in this manner. I think, however, that if you read between the lines of Roberts's presentation of the issue, you will see it evinces a fairly serious skepticism of Grove City College v. Bell and its vision of an essentially unbridled Spending Clause power. Indeed, the decision to side-step the issue altogether can be read as an expression of frustration with the inconsistent mess that has developed in the doctrine.

The Chief Justice may be hinting that he is one of those wise souls who views the spending power as basically coterminous with Congress's limited power to legislate directly. Which, if it's the case, should be heartening not just to libertarians but to all lovers of the Bill of Rights.

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Moller: 3/9/06, 01:04 PM
Angus, Cato's elevators are notoriously unreliable. I use the stairs. We'd never think of barring inspectors.

Seriously, though, I'm not sure your hypo is on point. You seem to assume I'm arguing Dale protects any crazy thing a group does to send a message. I'm making a narrower point: that Dale protects an association's choice of expression when the choice is reasonably calculated to ensure group cohesion. Law schools are rife with conflict between students and teachers over the recruiting issue. The law schools are at risk of more internal conflict after this case. If we respect schools' autonomy to govern themselves, we should tread carefully in light of that risk.

In addition, a group's First Amendment interests must be weighed against dangers to the public. On that front, your hypo is canyons apart from FAIR. The effect of the schools' policies on JAG recruiting, and on national security, is not only unproven, but far from self-evident. Put simply, the Solomon Amendment, applied to law schools, seems like a token gesture.

You may very well be right about the Court's discussion of military deference. But this part of the opinion deserves clarification. The Court says that Congress's purpose (to raise and support armies) triggers very broad deference even if the "legislation . . . is subject to the First Amendment." Some deference is fine, of course, but the Court seems to advocate a level of deference greater than that recognized in either Schenck or Abrams, the two First Amendment opinions that show the most deference to the government.. Worse, the Court's opinion could be read to suggest that the power to conscript implies broad incidental power to directly regulate expression and access to property—a suggestion that, on its face, seems to swallow the First Amendment when Congress raises and supports armies. Loose lips, they say, sink ships. Careless Supreme Court language invites the political branches to think less carefully when they push delicate constitutional boundaries.

Of course, I couldn't agree with you more on the Spending Clause. I also think it's a moderately good sign that the Chief Justice avoided relying on South Dakota v. Dole, despite Dean Dan Polsby's suggestion that the Court do so. Dole is a seriously flawed interpretation of the federal spending power.

I'd stress, though, that we should not only scrutinize whether Congress can spend funds but also whether Congress can impose conditions on the funds it can spend. The government isn't an ordinary market participant. When it conditions funding, we should ask whether the government is using its purse strings to raise competitive barriers against disfavored speakers. But, unfortunately, the buzzer rings. More on that last point in the next post.

Dwyer: 3/9/06, 10:04 PM
I think we need to further unpack the contents of your last paragraph. I'm inclined to agree that the government "isn't an ordinary market participant" when it conditions funding. But how, exactly? Is it because—due to the power to tax—government is many orders of magnitude wealthier than any other conceivable market participant? Perhaps it's because government can back up the carrot of voluntary market negotiations with the rather substantial stick of coercive direct legislation? Or maybe it's because, as an agent of the people, we think its conduct ought to be governed by moral norms (including autonomy-respecting norms) by which we don't expect ordinary market participants to abide?

I'm inclined to think of the difference in terms of the "moral norms" explanation. Even when engaged in otherwise ordinary market negotiations, the government isn't just another self-interested rational actor. It's an agent of the people, constituted in part as a defender of our liberties. It's bound to respect those liberties, even when entering into contracts and otherwise acting as a normal market participant. (Were I both perfidious and rich) I could make a billion-dollar donation to the Yale Law School, on the condition that the faculty stop criticizing the Bush Administration, or that all the deans be fired and replaced with scholars from the Cato Institute. The government, of course, could not. Not because its billion-dollar gift would be somehow more coercive than mine, but because the government is bound, in ways that I as a private party am not, to respect free speech and free association norms.

If there is a problem with the Solomon Amendment, it is not, I think, that the law schools' choice between taking the money and abandoning their principles is somehow coercive. Rather, it's that the government shouldn't be in the business of making people abandon their principles (at least not without a damn good reason).

Thus, I think, the Court in FAIR appropriately focused on the real issue at hand: whether the law schools were being asked to abandon their principles by endorsing a message they opposed. And, I think equally appropriately, it found that they were not.

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Moller: 3/10/06, 02:11 PM
You've asked me to justify my views of unconstitutional conditions. For me, the key question is whether a condition is coercive enough to trigger First Amendment balancing. To my mind, your moral norms argument doesn't answer that question, it just rephrases it. When the Court revisits this issue, let me modestly suggest that it might make sense to define "coercion" by relying on the law of antitrust. In other words, ask: (1) is the government disbursing funds in an area where it has market power to exclude competitors or erect competitive barriers; (2) does withdrawing the funds place those who suffer the penalty at a severe competitive disadvantage? If the answer to both questions is yes, then conditions on funding can be "coercive" in an objectively meaningful sense, triggering First Amendment scrutiny. In this case, I'd note, it is plausible that government wields a kind of market power. For better or worse, government dominates funding for social sciences, the humanities, and basic scientific research. Selectively withdrawing these funds places targeted universities at a real competitive disadvantage.

Incidentally, the Court's discussion of unconstitutional conditions reveals why this decision isn't as narrowly crafted as everyone is saying. The Court holds that it doesn't need to address the unconstitutional conditions doctrine: (1) because there is no protected First Amendment interest here (slip op. 10-20); (2) because government gets special deference when regulating military affairs, even assuming a protected First Amendment interest (slip. op. 8-9); and (3) because there is "no dispute" the access requirement could be imposed directly (slip op. 8, 9-10).

Yet, the Court could have avoided addressing the doctrine simply by holding there isn't any remotely plausible First Amendment interest in play. The Chief's opinion didn't need to address deference at all. The acclaim Roberts has received for crafting a careful, narrowly written opinion is therefore misplaced. He could have written a far more careful, far narrower decision than he did.

The question is, why did Roberts reach out to address these deference issues? Is it to allow the Court to distinguish its First Amendment rulings in later cases, where national security isn't implicated? Is it possible that by creating an additional way to distinguish the First Amendment rulings, he was able to avoid a concurrence by a justice who wants flexibility to apply Dale or coerced speech precedents more broadly in other contexts? That raises an interesting question: If Chief Justice Roberts prizes unanimity, as some are speculating, one wonders whether Roberts will tend to write opinions that are less narrow and more open to interpretation than they need to be, much as Congress uses statutory ambiguity to forge consensus.

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