The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Understanding the Scope of Rumsfeld v. FAIR
In Rumsfeld v. FAIR (2006), the Court unanimously held that universities could be required to host military recruiters, even when the universities generally refused to host recruiters who discriminated based on (among other things) sexual orientation, and the military was indeed so discriminating. The Court also held that universities could even be required to include information about the military recruiters on the same terms as about other recruiters in the universities' own speech (e.g., e-mails or notices about recruiting events). To be sure, one could criticize the decision; consider, for instance, our own Dale Carpenter's article about it, Unanimously Wrong. But it's a precedent.
Of course, that still leaves the question of the scope of the precedent, and the extent to which it might bear on other debates (such as whether social media platforms may be required to be viewpoint-neutral in their decisions about which content to host). There is a lot to debate about that; but here I just wanted to note two points that strike me as particularly clear:
[1.] Rumsfeld upheld the Solomon Amendment, which imposed its obligations as a condition on government spending. Many people therefore assume that the precedent is limited to such conditions.
But it's not, because the Court expressly held that the law would be constitutional even if imposed as a direct mandate, not as a spending condition—"the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement." The Court noted that the "unconstitutional conditions" caselaw was complicated:
Congress' power to regulate military recruiting under the Solomon Amendment is arguably greater because universities are free to decline the federal funds. In Grove City College v. Bell (1984), we rejected a private college's claim that conditioning federal funds on its compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We thought this argument "warrant[ed] only brief consideration" because "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept." We concluded that no First Amendment violation had occurred—without reviewing the substance of the First Amendment claims—because Grove City could decline the Government's funds.
Other decisions, however, recognize a limit on Congress' ability to place conditions on the receipt of funds. We recently held that "'the government may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech even if he has no entitlement to that benefit.'" United States v. American Library Assn., Inc. (2003) (quoting Board of Comm'rs, Wabaunsee Cty. v. Umbehr (1996)). Under this principle, known as the unconstitutional conditions doctrine, the Solomon Amendment would be unconstitutional if Congress could not directly require universities to provide military recruiters equal access to their students.
But then it concluded that it could avoid the whole mess:
This case does not require us to determine when a condition placed on university funding goes beyond the "reasonable" choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.
[2.] The Court also mentioned Congress's power to provide for the military, so some have argued that Rumsfeld is so limited as well. But I don't think that's so. Rumsfeld discussed the government interest in the opening of Part III of the opinion, which was necessary given that the expressive conduct section applied United States v. O'Brien, which calls for an inquiry into the government's interest, and mentioned that "'judicial deference … is at its apogee' when Congress legislates under its authority to raise and support armies." But the rest of the opinion, including the compelled speech and compelled hosting discussion applies normal First Amendment rules and precedents, such as West Virginia Bd. of Ed. v. Barnette, Wooley v. Maynard, Giboney v. Empire Storage & Ice Co., PruneYard Shopping Center v. Robins, and more, with no indication that their application is somehow different when it comes to military recruitment. That reasoning would apply just as much to hypothetical requirements that colleges allow recruitment by, say, the FBI or other nonmilitary departments as to the requirement of allowing military recruitment.
And, more importantly, later cases have consistently applied Rumsfeld in matters entirely unrelated to the military, with no suggestion that it's at all limited to military-related cases. See, e.g., Janus v. AFSCME (2018); Expressions Hair Design v. Schneiderman (2017); Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l (2013); Sorrell v. IMS Health Inc. (2011); Nevada Comm'n on Ethics v. Carrigan (2011); Davenport v. Washington Educ. Ass'n (2007).
Again, one can debate other matters about the precedential force of Rumsfeld, and debate whether Rumsfeld was correctly decided. But I don't think Rumsfeld can be limited in these two particular ways.
