So if you didn’t already know the Supreme Court recently heard the case about the Solomon amendments. This case was brought by several private universities alleging that the first amendment gives them the right to deny military recruiters without losing federal funding as the Solomon amendment requires. In essence their claim is that this law in effect forcing them to make speech they oppose, i.e., that gays should be treated equally in all cases. It looks like the supreme court is going to side with the military. Not only is this the outcome obviously legally required it is also the better outcome, even if in this case the principles involved had negative consequences.

The basic problem with the universities’ case is that there just isn’t any speech or expression involved at all. If Yale had been required to hang signs saying “Yale supports the military,” the case might be different but allowing people to use your classrooms is clearly not speech. Can you really tell me with a straight face that a reasonable person would infer that the university supports some view just because a firm supporting that view recruits on campus? Especially since the government attorney agreed it would be perfectly legal for the school (not just students) to protest and otherwise make it absolutely clear they disagreed with this principle.

Moreover, even if it is speech you have the additional question of whether it violates the first amendment to demand certain speech in order to receive government money. Would it even be a good thing if the first amendment prohibited government money for speech? Scholarships given to people who have worked to increase diversity would presumably be unconstitutional as they give money only to people who say diversity is good and not to those who express racist view. All sorts of reasonable government programs would be problematic under an absolute bar to government money for speech. Still, we clearly don’t want to allow congress to tax everyone at 90% and offer rebates for 70% people’s income if they support the war. Likely some sort of more reasonable test could be crafted such as whether the government’s power of taxation makes the speech into an effective compulsion. In general figuring out where this line lies will be quite difficult but this case seems to clearly fall on the government funding side not the penalty side.

Moreover, despite the ridiculousness of the military’s anti-gay policies if the supreme court actually ruled for the universities the consequences would be disturbing. This effectively would establish a right to avoid associating oneself with institutions and people whose behavior one finds objectionable. Colleges wishing to discriminate against women could cite such a principle to avoid being forced into expressing the idea that women are equal to men by not disadvantaging them in admission. Corporations might be able to invalidate various union protections on the grounds that they associate the company with pro-union speech by allowing recruiters or NLRB members to communicate pro-union messages on company property. It is particularly difficult to imagine how FDA mandated nutrition and other informative labels would survive under such a ruling (though I am somewhat skeptical of these laws myself. It certainly wouldn’t be okay to mandate that all books with violent or immoral content carry a preface saying it contained so many passages harmful to mental health and I am having trouble seeing and difference UPDATE: On second thought I can differentiate them nicely).