FAIR's unfairness
What does it tell us when a lawsuit brought by 36 law schools and their faculties is soundly thrashed by a unanimous Supreme Court?! Chief Justice Roberts' opinion in Rumsfeld v. FAIR was brief, straightforward and easy to follow. (I'm gonna like this guy.) His arguments were a bit chiding at times, and apparently with good reason since not even the most Left-leaning members of the Court found any merit in the law schools' or amici's nonsensical arguments.
To answer my own question: This drubbing demonstrates that the law schools were more interested in their pro-sodomy/anti-military social agenda than in the Constitution. Had it been education schools that brought this suit, such a revelation would have surprised no one; they make no secret of their teaching priorities. But law schools professors receiving such a scolding! As George Will put it, "The professors deserved - no, let us just say they needed - better legal advice than they were able to give themselves.
Roberts' opinion shed some new light on my still-developing understanding of the First Amendment. In barring military recruiters from their campuses, the law schools were trying to "make a statement" against anti-sodomy employers. Congress compelling them to include such employers was represented as forcing them to make a different "statement". The question, therefore, was whether "making a statement" is protected under the First Amendment. The answer is a resounding, "No, of course not. Duh."
This gets to the gist of my disagreement with "symbolic speech", as Roberts calls it and which even Scalia upheld in Eichman. Although "words can in some circumstances violate laws directed not against speech but against conduct" (R.A.V. v. St. Paul), they still find in the First Amendment a basic protection of "expressive conduct". ("Parades are...a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches," Roberts quotes from Hurley.)
I'm sorry, I just don't see that in the First Amendment. Maybe "marching to make a point" does need to be protected. Fine. If "the right of the people peaceably to assemble" doesn't cover it, let's do something to remedy the problem - preferably something besides bending the Constitution and stretching the definition of "speech", precedent be damned.
ADDENDUM: James Taranto, in today's OpinionJournal "Best of the Web", put it this way:
:-)
To answer my own question: This drubbing demonstrates that the law schools were more interested in their pro-sodomy/anti-military social agenda than in the Constitution. Had it been education schools that brought this suit, such a revelation would have surprised no one; they make no secret of their teaching priorities. But law schools professors receiving such a scolding! As George Will put it, "The professors deserved - no, let us just say they needed - better legal advice than they were able to give themselves.
Roberts' opinion shed some new light on my still-developing understanding of the First Amendment. In barring military recruiters from their campuses, the law schools were trying to "make a statement" against anti-sodomy employers. Congress compelling them to include such employers was represented as forcing them to make a different "statement". The question, therefore, was whether "making a statement" is protected under the First Amendment. The answer is a resounding, "No, of course not. Duh."
This gets to the gist of my disagreement with "symbolic speech", as Roberts calls it and which even Scalia upheld in Eichman. Although "words can in some circumstances violate laws directed not against speech but against conduct" (R.A.V. v. St. Paul), they still find in the First Amendment a basic protection of "expressive conduct". ("Parades are...a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches," Roberts quotes from Hurley.)
I'm sorry, I just don't see that in the First Amendment. Maybe "marching to make a point" does need to be protected. Fine. If "the right of the people peaceably to assemble" doesn't cover it, let's do something to remedy the problem - preferably something besides bending the Constitution and stretching the definition of "speech", precedent be damned.
ADDENDUM: James Taranto, in today's OpinionJournal "Best of the Web", put it this way:
Only one law school, George Mason in Arlington, Va., filed a brief on the winning side. Given that not a single justice agreed with the views put forward by profs at Harvard, Yale, Columbia, Cornell, NYU, Chicago, Penn, etc., it seems fair to say that George Mason has the most competent professors of any law school in the nation.
:-)
posted by Lear's Fool | 6:04 PM
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