| Chapter 1: | The Nature of Speech and Freedom of Speech |
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disorderly conduct. However the clear trend seems to be in favour of the middle digit as speech.3
In 2006, the US Supreme Court had occasion to review the nature of speech in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.4 This case involved a claim of constitutionally protected free speech by some of America’s most prestigious law schools. The case was inherently political and emotional and was charged with claims of Eastern elitism and disparagement of the American defence forces. A group of law schools, all belonging to major universities and opposed to the discriminatory policy then pursued by the military against gays, barred military recruiters from using law school facilities for interviewing students who wanted to inquire about opportunities for lawyers in the defence forces. The law schools maintained that by granting the military access to on-campus interviewing facilities, the law schools would be victims of compelled speech; that is, they would be viewed as expressing support for the military’s discriminatory policies.
The dispute arose over the response of Congress to the exclusion of the military recruiters from the law schools. In the aftermath of the exclusions, Congress enacted the Solomon Amendment5 which cut off all government funding to any university (not just law schools where federal funding is possibly de minimis) in which the military did not enjoy the same recruiting privileges as other prospective employers. To anticipate First Amendment issues relating to the free exercise of religion clause of the First Amendment, an exception was made for universities that had an established history of pacifism based on the religious affiliation of the school. While law schools could likely survive the threatened loss of funding, the consequence of medical schools or science departments being cut off from federal funds was something that no major university could possibly risk. The universities asserted that the Solomon Amendment was unconstitutional as it amounted to coerced speech, thereby forcing the schools to endorse the anti-gay discrimination. The law schools were unsuccessful at the trial court6 but prevailed at the Third Circuit Court of