Media for Rumsfeld v. Forum for Academic and Institutional Rights, Inc.Audio Transcription for Oral Argument - December 06, 2005 in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.
Audio Transcription for Opinion Announcement - March 06, 2006 in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.
John G. Roberts, Jr.:
We have rejected the view that conduct can be labeled speech whenever the person engaging in the conduct intends to express an idea.
Not paying your taxes may be a way to express opposition to the IRS, but your action is going to be evaluated as conduct, not speech.
Instead, we have extended First Amendment protection only to conduct that is inherently expressive, for example, burning the American flag; but unlike flag-burning, the conduct regulated by the Solomon Amendment is not inherently expressive.
The expressive component of a law school’s actions is created not by the conduct itself, but by the speech that accompanies it.
If combining speech and conduct were enough to create expressive conduct, a person could always transform conduct into speech simply by talking about it.
The Solomon Amendment does not violate law schools’ freedom of speech, but the First Amendment’s protection extends beyond the right to speak.
We have recognized a First Amendment right to associate for the purpose of speaking, which we have termed a freedom of expressive association.
The law schools argue that the Solomon Amendment violates their freedom of expressive association, because the presence of military recruiters on campus significantly affects their ability to express the message that discrimination based on sexual orientation is wrong.
The Court of Appeals agreed; we do not.
The Court of Appeals relied on one of our previous decisions, in which we held that the Boy Scouts’ freedom of expressive association was violated by a state law requiring the organization to accept a homosexual as a scoutmaster.
The Solomon Amendment, however, does not similarly affect a law school’s associational rights.
To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school assists other employers.
But recruiters are not part of a law school.
Recruiters are outsiders who come onto campus to attempt to hire students, not to become members of the school’s expressive association.
For these reasons, which are stated more fully in an opinion filed this morning with the Clerk, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
All members of the Court join the opinion except for Justice Alito, who did not participate in the consideration or decision in the case.