Commercial speech refers to any speech which promotes at least some type of commerce. As established in Central Hudson v. Public Svn. Comm’n, commercial speech is less protected under the First Amendment than other forms of speech.
Did the Court of Appeals err in ruling that the Solomon Amendment's equal access condition on federal funding violates the First Amendment based on the fact that the Solomon Amendment burdens the right of educational institutions to engage in expressive association and forces law schools to propagate a message of discrimination against homosexuals with which they disagree?
Under the Solomon Amendment, law schools that receive federal funding are forced to provide the same access to career placement services to military recruiters that they provide to other employers. This requirement conflicts with most law schools' policies of non-discrimination that withhold career placement services from employers who exclude employees on the basis of race, gender, religion or sexual orientation. The Forum for Academic and Institutional Rights (“FAIR”) has challenged the Solomon Amendment on two grounds. First, they argue that the Amendment is an unconstitutional condition that infringes their freedom of speech. Second, FAIR argues that law schools are “expressive associations” whose right to free speech and dissemination of a chosen message is impaired by the forced accommodation of military recruiters on campus. The Court of Appeals, in ruling for FAIR, held that the Solomon Amendment unconstitutionally impairs expressive conduct and that the Government has not shown a compelling interest that justifies denying this freedom. The case is significant because it will determine whether, specifically, law schools are able to bar military recruiters from campus without losing federal funding, and, more broadly, whether certain associations may qualify for federal funding but remain constitutionally protected from disseminating a message with which they do not agree.
The Solomon Amendment, 10 U.S.C. 983(b)(1), withholds specified federal funds from institutions of higher education that deny military recruiters the same access to campuses and students that they provide to other employers. The question presented is whether the court of appeals erred in holding that the Solomon Amendment's equal access condition on federal funding likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement.
Since 1990, the American Association of Law Schools (“AALS”) has required its members to withhold placement assistance or use of the schools' facilities from employers who discriminate on the basis of sexual orientation. AALS believes that the military violates this policy as a result of the military's “don't ask, don't tell” policy. See 10 U.S.C. § 654. As a result, some law schools refused to provide access to their facilities and assistance to military recruiters.
