Suppose, Roberts wrote, an individual announced that he intended to express disapproval of the Internal Revenue Service by refusing to pay taxes. That would not mean that the tax code violates the First Amendment.
The court has held that freedom of speech prohibits government from telling people what they must say -- that schoolchildren must salute the flag or that New Hampshire motorists must display the state motto "Live Free or Die" on their license plates. But those cases concerned government dictating the content of speech, which the law concerning recruiters' access to law school students does not.
The court has held that state law cannot compel a parade -- which is a form of expression, not mere motion -- to include a group whose message the parade's organizer does not want to express. Similarly, the court has held that compelling the Boy Scouts, an "expressive association," to accept a homosexual scoutmaster would "significantly affect" the Scouts' right of expression. But the law schools are in no way inhibited from -- or bashful about -- proclaiming their message of disapproval about "don't ask, don't tell."
"Accommodating the military's message," Roberts wrote, "does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive."
Recruiters are obviously not components of law schools; they are outsiders on brief visits for a limited purpose. "Nothing about recruiting," Roberts wrote, "suggests that law schools agree with any speech by recruiters." Besides, "We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy." Then, Roberts' tartness: "Surely students have not lost that ability by the time they get to law school."
The law schools and faculties earned that sip of the chief justice's vinegar by bringing this case to court. The professors deserved -- no, let us just say they needed -- better legal advice than they were able to give themselves.
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