Emily S. Wilbanks, Constitutional Law: Speaking with your Mouth Shut? Exploring the Outer Limits of First Amendment Protection in The Context of Military Recruiting on Law School Campuses

59 Fla. L. Rev. 437 (2007) | | | |

TEXT :: In response to the increasing refusal of law schools and other institutions of higher education to allow the U.S. military to engage in on-campus recruiting, Congress passed the Solomon Amendment. The Solomon Amendment mandates a denial of federal funds to any school that refuses to allow the military to recruit on campus. Many law schools sought to exclude military recruiters on the basis that the military’s policy regarding homosexuality was a violation of the schools’ antidiscrimination policies. The Forum for Academic and Institutional Rights (FAIR), Respondent, alleged that the Solomon Amendment infringed upon the schools’ First Amendment freedoms of speech and association. FAIR filed suit in the United States District Court for the District of New Jersey challenging the constitutionality of the Solomon Amendment. The district court held that the Solomon Amendment was constitutional because it neither compelled speech nor significantly affected the schools’ ability to express their own messages. On appeal, the Third Circuit Court of Appeals reversed and found that the Solomon Amendment was unconstitutional because it violated the schools’ rights of association and impermissibly compelled them to participate in the expressive act of recruiting. The United States Supreme Court unanimously reversed and HELD that the Solomon Amendment was not a violation of the law schools’ First Amendment freedoms of speech or association and thus was a constitutionally permissible act of the legislature.

The United States Supreme Court had previously found compelled speech to be a violation of the First Amendment. In West Virginia Board of Education v. Barnette, the Court reviewed a state law that required school children to recite the Pledge of Allegiance (Pledge) and to salute the flag daily. Plaintiffs, a group of Jehovah’s Witnesses, challenged the constitutionality of the law. The Court held that requiring children to recite the Pledge or salute the flag violated the children’s freedom of speech.

In rendering its decision, the Barnette Court emphasized the inappropriateness of compelling the students to verbally declare a belief and of requiring them to engage in the expressive, albeit silent, act of saluting the flag. It opined that to uphold the state law requiring all students to salute the flag would be tantamount to saying that the “Bill of Rights[,] which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.” In Barnette, the Court expressly overruled a prior case permitting similarly compelled speech and took on a decidedly more protective role in its application of the First Amendment. The Court firmly espoused its commitment to preventing speakers from being told what to say, either verbally or symbolically.

More than fifty years later, a unanimous Court continued in its protective role by proscribing the application of a state law that would have forced a group of parade organizers to alter their desired message. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, parade organizers refused to allow a particular group of openly homosexual individuals to participate in a St. Patrick’s Day parade. The group sued, claiming violation of a state public accommodations law prohibiting discrimination based on sexual orientation. Parade organizers countered that the application of the state law was unconstitutional because it infringed on their First Amendment freedoms of speech and expressive association. The state trial court and the Supreme Judicial Court of Massachusetts, on appeal, both held that the application of the statute did not unconstitutionally impair the parade organizers’ First Amendment rights because the parade had no discernable expressive purpose. The United States Supreme Court disagreed and reversed.

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