Parties: DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al., Petitioners v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC., et al.
Date: 2006-03-06
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Paragraph: 18 - We recently [**1307] held that
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Paragraph: 22 - ] freedom of speech prohibits the government from telling people what they must say. In West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), we held unconstitutional a state law requiring schoolchildren to recite the Pledge of Allegiance and to salute the flag. And in Wooley v. Maynard, 430 U.S. 705, 717, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), we held unconstitutional another that required New Hampshire motorists to display the state motto--"Live Free or Die"--on their license plates.
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Paragraph: 25 - The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment's regulation of conduct, and "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S. Ct. 684, 93 L. Ed. 834 (1949). Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct. See R. A. V. v. St. Paul, 505 U.S. 377, 389, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) ("[W]ords can in some circumstances violate laws directed not against speech but against conduct"). Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto "Live Free or Die," and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.
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Paragraph: 28 - The compelled-speech violations in Tornillo and Pacific Gas also resulted from interference with a speaker's desired message. In Tornillo, we recognized that "the compelled printing of a reply . . . tak[es] up space that could be devoted to other material the newspaper may have preferred to print," 418 U.S., at 256, 94 S. Ct. 2831, 41 L. Ed. 2d 730, and therefore concluded that this right-of-reply statute infringed the newspaper editors' freedom of speech by altering the message the paper wished to express,
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Paragraph: 37 - 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 [**1312] for the purpose of speaking, which we have termed a "right of expressive association." See, e.g., BSA v. Dale, 530 U.S. 640, 644, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). The reason we have extended First Amendment protection in this way is clear: The right to speak is often exercised most effectively by combining one's voice with the voices of others. See Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). If the government were free to restrict individuals' ability to join together and speak, it could essentially silence views that the First Amendment is intended to protect.
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Phrase match: schools' freedom of speech, but the
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Paragraph: 39 - In Dale, we held that the Boy Scouts' freedom of expressive association was violated by New Jersey's public accommodations law, which required the organization to accept a homosexual as a scoutmaster. After determining that the Boy Scouts was an expressive association, that "the forced inclusion of Dale would significantly affect its expression," and that the State's interests did not justify this intrusion, we concluded that the Boy Scouts' First Amendment rights were violated.
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Paragraph: 37 - We have recognized a First Amendment right to associate [**1312] for the purpose of speaking, which we have termed a N216* "right of expressive association." See, e.g., BSA v. Dale, 530 U.S. 640, 644, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). The reason we have extended First Amendment protection in this way is clear: The right to speak is often exercised most effectively by combining one's voice with the voices of others.
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Paragraph: 42 - Students and faculty are free to associate to voice their disapproval of the military's message; nothing about the statute affects the composition of the group by making group membership less desirable. The Solomon Amendment therefore does not violate a law school's First Amendment rights. A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message.
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Paragraph: 26 - Our compelled-speech cases are not limited to the situation in which an individual must personally speak the government's message. We have also in a number of instances limited the government's ability to force one speaker to host or accommodate another speaker's message. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 566, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995) (state law cannot require a parade to include a group whose message the parade's organizer does not wish to send); Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 20-21, 106 S. Ct. 903, 89 L. Ed. 2d 1 (1986) [***174] (plurality opinion); accord, id., at 25, 106 S. Ct. 903, 89 L. Ed. 2d 1 (Marshall, J., concurring in judgment) (state agency cannot require a utility company to include a third-party newsletter in its billing envelope); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974) (right-of-reply statute violates editors' right to determine the content of their newspapers).
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Paragraph: 37 - The Solomon Amendment does not violate law schools' freedom of speech, but the First Amendment's protection extends beyond the right to speak. [HN13] We have recognized a First Amendment right to associate [**1312] for the purpose of speaking, which we have termed a N133* "right of expressive association." See, e.g., BSA v. Dale, 530 U.S. 640, 644, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). The reason we have extended First Amendment protection in this way is clear: The right to speak is often exercised most effectively by combining one's voice with the voices of others.
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Phrase match: the right to speak. [HN
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Paragraph: 32 - In O'Brien, we recognized that some forms of "'symbolic speech'" were deserving of First Amendment protection. 391 U.S., at 376, 88 S. Ct. 1673, 20 L. Ed. 2d 672. But we rejected the view that N50* "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Ibid. Instead, we have extended First Amendment protection only to conduct that is inherently expressive.
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Phrase match: of "'symbolic speech'" were deserving of
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Paragraph: 22 - Some of this Court's leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.
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Paragraph: 29 - In this case, accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade [**1310] organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school's recruiting [***175] services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter's message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.
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Phrase match: law schools' speech, because the schools
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Paragraph: 34 - The expressive component of a law school's actions is not created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O'Brien. If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into "speech" simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O'Brien to determine whether the Tax Code violates the First Amendment. Neither O'Brien nor its progeny supports such a result.
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Phrase match: by the speech that accompanies it
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Paragraph: 32 - Having rejected the view that the Solomon Amendment impermissibly regulates speech, we must still consider whether the expressive nature of the conduct regulated by the statute brings that conduct within the First Amendment's protection. In O'Brien, we recognized that some forms of N9* "'symbolic speech'" were deserving of First Amendment protection. 391 U.S., at 376, 88 S. Ct. 1673, 20 L. Ed. 2d 672. But we rejected the view that N10* "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Ibid. Instead, we have extended First Amendment protection only to conduct that is inherently expressive.
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Phrase match: some forms of "'symbolic speech'" were deserving of First Amendment
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