In 2006 in Rumsfeld v Forum for Academic and Institutional Rights, Inc., 547 U.S. (later FAIR), The Court ruled that the Solomon Amendment, which allowed withholding federal funds from universities if they restricted the access of military recruiters on campus, was not a violation of the First Amendment freedoms of speech and association. In this text, I will go through the facts and main principles established in the FAIR case. I will also look into how it was applied in 303 Creative LLC v Elenis, as the majority and the dissenting opinion took very different stands in whether to distinguish or not from FAIR and what can be seen as compelled speech.
Forum for Academic and Institutional Rights (FAIR) is an association of law schools which objected the military’s discriminative ”Don’t Ask, Don’t Tell” policy and didn’t want to give military recruiters access to their campuses. The policy, which was in effect until 2011, meant that non-heterosexual people could only serve in the military if they were not open about their identity. The congress did not accept the law schools’ view and passed the Solomon Amendment. It required the law schools which received state funding to give military recruiters the same access as any other recruiters. FAIR argued that forced inclusion and equal access of military recruiters was a violation of it’s members freedoms of speech and association.
The main question in the case was whether allowing military recruiters to the campuses was compelled speech or not. In their unanimous opinion, The Court gave strong arguments as for why there was no violation of freedom of speech or association. First, it stated that no speech was required by the Solomon Amendment from the law schools. Giving military recruiters the same possibilities as other employer recruiters is about conduct, not speech. The Solomon Amendment compels the schools that e.g. send emails for other recruiters to do the same for military recruiters. In The Court’s opinion, doing the same thing for all recruiters is far from cases such as West Virginia Bd. of Ed. v. Barnette, in which students were forced to pledge allegiance to the flag.
Second, in FAIR the schools’ own message was not affected by another entity’s or individual’s speech, as in e.g. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. The schools did not have to imply they agree in any way with military recruiters’ speech, and they were free to speak what they wanted about military’s recruitment policies. The Court also noted that law school recruiting services are not expressive conduct such as e.g. a parade is in Hurley. Finally, the Solomon Amendment was not seen as a violation to the law schools’ freedom of association. Law schools had to interact with military recruiters, but the recruiters were not a part of the school or unwanted members such as in Boy Scouts of America v. Dale.
So, is it possible to draw an analogy between FAIR and 303 Creative? The majority opinion of 303 Creative distinguished these two cases, claiming 303 Creative was about speech, while the dissenting opinion viewed Ms. Smith’s business as conduct. In the dissenting opinion, Sotomayor analogizes 303 Creative with FAIR, where it was confirmed that Congress can, for example, prohibit employers from discriminating in hiring on the basis of race. Being forced to remove a sign reading “White Applicants Only” does not mean an employer’s speech is regulated. It is about conduct.
As we can see from FAIR, conduct may involve some speech, such as aiding a recruiter’s message with sending emails and putting out flyers. The Solomon Amendment and CADA in 303 Creative were both regulating conduct. They didn’t require anyone to change their view or their “own message”. What they did require was equal treatment and equal access to services. These laws were not about dictating the content of speech at all. Universities’ or companies’ speech was only “compelled” if, and to the extent, they offered such speech to other recruiters or customers. If a university offers recruiting services which involve sending emails with certain speech to some recruiters, it should do the same for military recruiters as well. If a company offers a service which contains certain speech, such as biblical quotes, it should offer it to everyone. The majority opinion in 303 Creative seems to completely skip this principle.
In conclusion, it seems like a worrying step backwards when a company is given a constitutional right to discriminate and refuse its services, which are open to the public, from a member of LGBTQIA+. What FAIR established seems to be completely misunderstood or, most likely, ignored in the majority opinion of 303 Creative.
Team L. M. S. L. A (303 Creative, Case Genetics)