Freedom of Speech and Society: A Social Approach to Freedom of Ex ...

Appeals and the law was struck as violating the First Amendment.⁷ On review, a unanimous Supreme Court disagreed, declared the law constitutional, and addressed the issue of when conduct could be considered as speech. The Court noted that the Solomon Amendment did not restrict the law schools from placing signs on the wall saying that they did not approve of military policies nor were protests banned. The only conduct required by the law was equal access to interview facilities.

The law schools were correct and on solid ground in asserting that compelled speech can be just as repugnant to freedom of speech as repressed or censored speech. There is a freedom not to permit the state to intrude on individual or group political beliefs and religious associations.⁸ The Supreme Court agreed that precedents clearly established that the government could not force children to say the pledge of allegiance in schools;⁹ the government could not require people to use license registration plates that bore state mottos offensive to them, specifically in the case of New Hampshire where registration plates bear the motto “Live Free or Die”;¹⁰ and could not outlaw the burning of American flags.¹¹ Nevertheless, the court distinguished these activities because in all of those cases, the conduct complained of was clearly and plainly expressive whereas the provision of interview rooms was so far removed from communicating a message that the law schools had to publish notices explaining why they were excluding military recruiters. The Supreme Court said that “nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.”¹²

While perhaps a closer question than the unanimous Supreme Court vote implied, the Rumsfeld case on its face appeared to be different from the ban on the flag burning situation where the law sought to outlaw inherently expressive conduct. Of course, the public burning of the US flag is not only expressive conduct but is also highly emotional. Flag burning, having been found to constitute protected speech has resulted in attempts, unsuccessful to date, to amend the Constitution to specifically