First Amendment Rights and the Courts
on Limiting and Compelling Speech

The language of the First Amendment to the US Constitution-as drafted by the authors of the Bill of Rights-does nothing more than restrict the ability of the federal government to limit expression. Over the course of more than one hundred years, however, American courts have seen more.

They have held, for instance, that the First Amendment applies (through the Fourteenth Amendment) to state governments as well as to the government in Washington.

Judges have long recognized as well that not all forms of expression are protected by the First Amendment. Obscenity and defamatory speech are only two examples of speech that government may limit.

In recent years, though, courts have acknowledged other governmental activities that the First Amendment's free speech clause prohibits, even if those activities do not limit expression directly.

One is compelled speech. Just as the First Amendment prohibits government from limiting speech, government may not likewise force individuals to express certain views.

As the US Supreme Court announced in Turner Broadcasting System, Inc. v. FCC, "[A]t the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression."

Over recent years, that Court has held that compelling speech in violation of the First Amendment might occur in government action that forces:

• a private speaker to propagate a particular message chosen by a government;
• a private speaker to accommodate or include another private speaker's message; or
• an individual to subsidize or contribute to an organization that engages in speech that the individual opposes.

Last fall, a federal appeals court upheld a challenge by an organization of American law schools against the US Department of Defense, finding that the Department's rules against gays in the military violated the schools' rights against compelled speech.

The law schools-which had organized as the Forum for Academic and Institutional Rights, Inc. (FAIR)-are subject to the Solomon Amendment, a federal law that requires American colleges and universities to accommodate military officials desiring access to campuses for the purpose of recruiting.

Under the Solomon Amendment, an institution that prevents such access may be barred from receiving federal funds to which the institution would otherwise be entitled.

However, the law schools' career placement policies purported to deny any recruiter-military or otherwise-access to campus if such recruiter represented an employer who would discriminate "on the grounds of race, color, religion, national origin, sex, handicap or disability, age, or sexual orientation."

The military's long-standing policy of refusing to admit homosexuals squarely violated the law schools' policies. Forcing the schools nevertheless to comply with the mandates of the Solomon Amendment would-according to the US Court of Appeals for the Third Circuit-compel the schools to engage in expression contrary to the First Amendment.

In FAIR v. Rumsfeld, the court held that the "Solomon Amendment conditions funding on the law schools' propagation, accommodation, and subsidy of the military's recruiting, which is expression."

Therefore, it asserted, the Amendment "requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom."

The Department of Defense has sought review of the Third Circuit's decision by the US Supreme Court. No doubt that Court's ruling will further define the limits on governmental actors in compelling expression.

Published in the Spring 2005 Edition of In Brief