Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

RUMSFELD, SECRETARY OF DEFENSE, ET AL. v.

FORUM FOR ACADEMIC AND INSTITUTIONAL

RIGHTS, INC., ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 04–1152. Argued December 6, 2005—Decided March 6, 2006

Respondent Forum for Academic and Institutional Rights, Inc. (FAIR),

is an association of law schools and law faculties, whose members

have policies opposing discrimination based on, inter alia, sexual ori-

entation. They would like to restrict military recruiting on their

campuses because they object to the Government’s policy on homo-

sexuals in the military, but the Solomon Amendment—which pro-

vides that educational institutions denying military recruiters access

equal to that provided other recruiters will lose certain federal

funds—forces them to choose between enforcing their nondiscrimina-

tion policy against military recruiters and continuing to receive those

funds. In 2003, FAIR sought a preliminary injunction against en-

forcement of an earlier version of the Solomon Amendment, arguing

that forced inclusion and equal treatment of military recruiters vio-

lated its members’ First Amendment freedoms of speech and associa-

tion. Denying relief on the ground that FAIR had not established a

likelihood of success on the merits, the District Court concluded that

recruiting is conduct, not speech, and thus Congress could regulate

any expressive aspect of the military’s conduct under United States v.

O’Brien, 391 U. S. 367. The District Court, however, questioned the

Department of Defense (DOD) interpretation of the Solomon

Amendment, under which law schools must provide recruiters access

at least equal to that provided other recruiters. Congress responded

to this concern by codifying the DOD’s policy. Reversing the District

Court’s judgment, the Third Circuit concluded that the amended

Solomon Amendment violates the unconstitutional conditions doc-

trine by forcing a law school to choose between surrendering First

2 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITU-

TIONAL RIGHTS, INC.

Syllabus

Amendment rights and losing federal funding for its university. The

court did not think that O’Brien applied, but nonetheless determined

that, if the activities were expressive conduct rather than speech, the

Solomon Amendment was also unconstitutional under that decision.

Held: Because Congress could require law schools to provide equal ac-

cess to military recruiters without violating the schools’ freedoms of

speech and association, the Third Circuit erred in holding that the

Solomon Amendment likely violates the First Amendment. Pp. 5–21.

1. The Solomon Amendment should be read the way both the Gov-

ernment and FAIR interpret it: In order for a law school and its uni-

versity to receive federal funding, the law school must offer military

recruiters the same access to its campus and students that it pro-

vides to the nonmilitary recruiter receiving the most favorable access.

Contrary to the argument of amici law professors, a school excluding

military recruiters could not comply with the Solomon Amendment

by also excluding any other recruiter that violates its nondiscrimina-

tion policy. The Secretary of Defense must compare the military’s

“access to campuses” and “to students” to “the access to campuses

and to students that is provided to any other employer.” 10

U. S. C. A. §983. The statute does not focus on the content of a

school’s recruiting policy, but on the result achieved by the policy.

Applying the same policy to all recruiters does not comply with the

statute if it results in a greater level of access for other recruiters

than for the military. This interpretation is supported by the text of

the statute and is necessary to give effect to the Solomon Amend-

ment’s recent revision. Pp. 5–8.

2. Under the Solomon Amendment, a university must allow equal

access for military recruiters in order to receive certain federal funds.

Although there are limits on Congress’ ability to condition the receipt

of funds, see, e.g., United States v. American Library Assn., Inc., 539

U. S. 194, 210, a funding condition cannot be unconstitutional if it

could be constitutionally imposed directly. Because the First

Amendment would not prevent Congress from directly imposing the

Solomon Amendment’s access requirement, the statute does not place

an unconstitutional condition on the receipt of federal funds. Pp. 8–

20.

(a) As a general matter, the Solomon Amendment regulates con-

duct, not speech. Nevertheless, the Court of Appeals concluded that

the statute violates law schools’ freedom of speech in a number of

ways. First, the law schools must provide military recruiters with

some assistance clearly involving speech, such as sending e-mails and

distributing flyers, if they provide such services to other recruiters.

This speech is subject to First Amendment scrutiny, but the com-

pelled speech here is plainly incidental to the statute’s regulation of

Cite as: 547 U. S. ____ (2006) 3

Syllabus

conduct. Compelling a law school that sends e-mails for other re-

cruiters to send one for a military recruiter is simply not the same as

forcing a student to pledge allegiance to the flag, West Virginia Bd. of

Ed. v. Barnette, 319 U. S. 624, or forcing a Jehovah’s Witness to dis-

play a particular motto on his license plate, Wooley v. Maynard, 430

U. S. 705, and it trivializes the freedom protected in Barnette and

Wooley to suggest that it is.

Second, that military recruiters are, to some extent, speaking while

on campus does not mean that the Solomon Amendment unconstitu-

tionally requires laws schools to accommodate the military’s message

by including those recruiters in interviews and recruiting receptions.

This Court has found compelled-speech violations where the com-

plaining speaker’s own message was affected by the speech it was

forced to accommodate. See, e.g., Hurley v. Irish-American Gay, Les-

bian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566. Here,

however, the schools are not speaking when they host interviews and

recruiting receptions. They facilitate recruiting to assist their stu-

dents in obtaining jobs. Thus, a law school’s recruiting services lack

the expressive quality of, for example, the parade in Hurley. Nothing

about recruiting suggests that law schools agree with any speech by

recruiters, and nothing in the Solomon Amendment restricts what

they may say about the military’s policies.

Third, freedom of speech can be violated by expressive conduct, but

the expressive nature of the conduct regulated by the Solomon

Amendment does not bring that conduct within the First Amend-

ment’s protection. Unlike flag burning, see Texas v. Johnson, 491

U. S. 397, the conduct here is not so inherently expressive that it

warrants protection under O’Brien. Before adoption of the Solomon

Amendment’s equal-access requirement, law schools expressed their

disagreement with the military by treating military recruiters differ-

ently from other recruiters. These actions were expressive not be-

cause of the conduct but because of the speech that accompanied that

conduct. Moreover, even if the Solomon Amendment were regarded

as regulating expressive conduct, it would be constitutional under

O’Brien. Pp. 8–18.

(b) The Solomon Amendment also does not violate the law

schools’ freedom of expressive association. Unlike Boy Scouts of

America v. Dale, 530 U. S. 640, where the Boy Scouts’ freedom of ex-

pressive association was violated when a state law required the or-

ganization to accept a homosexual scoutmaster, the statute here does

not force a law school “ ‘to accept members it does not desire,’ ” id., at

648. Law schools “associate” with military recruiters in the sense

that they interact with them, but recruiters are not part of the school.

They are outsiders who come onto campus for the limited purpose of

4 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITU-

TIONAL RIGHTS, INC.

Syllabus

trying to hire students—not to become members of the school’s ex-

pressive association. The freedom of expressive association protects

more than a group’s membership decisions, reaching activities that

affect a group’s ability to express its message by making group mem-

bership less attractive. But the Solomon Amendment has no similar

effect on a law school’s associational rights. Students and faculty are

free to associate to voice their disapproval of the military’s message;

nothing about the statute affects the composition of the group by

making membership less desirable. Pp. 18–20.

390 F. 3d 219, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which all other

Members joined, except ALITO, J., who took no part in the consideration

or decision of the case.

Cite as: 547 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1152

_________________

DONALD H. RUMSFELD, SECRETARY OF DEFENSE,

ET AL., PETITIONERS v. FORUM FOR ACADEMIC

AND INSTITUTIONAL RIGHTS, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[March 6, 2006]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

When law schools began restricting the access of mili-

tary recruiters to their students because of disagreement

with the Government’s policy on homosexuals in the mili-

tary, Congress responded by enacting the Solomon

Amendment. See 10 U. S. C. A. §983 (Supp. 2005). That

provision specifies that if any part of an institution of

higher education denies military recruiters access equal to

that provided other recruiters, the entire institution would

lose certain federal funds. The law schools responded by

suing, alleging that the Solomon Amendment infringed

their First Amendment freedoms of speech and associa-

tion. The District Court disagreed but was reversed by a

divided panel of the Court of Appeals for the Third Circuit,

which ordered the District Court to enter a preliminary

injunction against enforcement of the Solomon Amend-

ment. We granted certiorari.

I

Respondent Forum for Academic and Institutional

2 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITU-

TIONAL RIGHTS, INC.

Opinion of the Court

Rights, Inc. (FAIR), is an association of law schools and

law faculties. App. 5. Its declared mission is “to promote

academic freedom, support educational institutions in

opposing discrimination and vindicate the rights of insti-

tutions of higher education.” Id., at 6. FAIR members

have adopted policies expressing their opposition to dis-

crimination based on, among other factors, sexual orienta-

tion. Id., at 18. They would like to restrict military re-

cruiting on their campuses because they object to the

policy Congress has adopted with respect to homosexuals

in the military. See 10 U. S. C. §654.1 The Solomon

Amendment, however, forces institutions to choose be-

tween enforcing their nondiscrimination policy against

military recruiters in this way and continuing to receive

specified federal funding.

In 2003, FAIR sought a preliminary injunction against

enforcement of the Solomon Amendment, which at that

time—it has since been amended—prevented the Depart-

ment of Defense (DOD) from providing specified federal

funds to any institution of higher education “that either

prohibits, or in effect prevents” military recruiters “from

gaining entry to campuses.” §983(b).2 FAIR considered

——————

1 Under this policy, a person generally may not serve in the Armed

Forces if he has engaged in homosexual acts, stated that he is a homo-

sexual, or married a person of the same sex. Respondents do not

challenge that policy in this litigation.

2 The complaint named numerous other plaintiffs as well. The Dis-

trict Court concluded that each plaintiff had standing to bring this suit.

291 F. Supp. 2d 269, 284–296 (NJ 2003). The Court of Appeals for the

Third Circuit agreed with the District Court that FAIR had associa-

tional standing to bring this suit on behalf of its members. 390 F. 3d

219, 228, n. 7 (2004). The Court of Appeals did not determine whether

the other plaintiffs have standing because the presence of one party

with standing is sufficient to satisfy Article III’s case-or-controversy

requirement. Ibid. (citing Bowsher v. Synar, 478 U. S. 714, 721 (1986)).

Because we also agree that FAIR has standing, we similarly limit our

discussion to FAIR.

Cite as: 547 U. S. ____ (2006) 3

Opinion of the Court

the DOD’s interpretation of this provision particularly

objectionable. Although the statute required only “entry

to campuses,” the Government—after the terrorist attacks

on September 11, 2001—adopted an informal policy of

“ ‘requir[ing] universities to provide military recruiters

access to students equal in quality and scope to that pro-

vided to other recruiters.’ ” 291 F. Supp. 2d 269, 283 (NJ

2003). Prior to the adoption of this policy, some law

schools sought to promote their nondiscrimination policies

while still complying with the Solomon Amendment by

having military recruiters interview on the undergraduate

campus. Id., at 282. But under the equal access policy,

military recruiters had to be permitted to interview at the

law schools, if other recruiters did so.

FAIR argued that this forced inclusion and equal treat-

ment of military recruiters violated the law schools’ First

Amendment freedoms of speech and association. Accord-

ing to FAIR, the Solomon Amendment was unconstitu-

tional because it forced law schools to choose between

exercising their First Amendment right to decide whether

to disseminate or accommodate a military recruiter’s

message, and ensuring the availability of federal funding

for their universities.

The District Court denied the preliminary injunction on

the ground that FAIR had failed to establish a likelihood

of success on the merits of its First Amendment claims.

The District Court held that inclusion “of an unwanted

periodic visitor” did not “significantly affect the law

schools’ ability to express their particular message or

viewpoint.” Id., at 304. The District Court based its

decision in large part on the determination that recruiting

is conduct and not speech, concluding that any expressive

aspect of recruiting “is entirely ancillary to its dominant

economic purpose.” Id., at 308. The District Court held

that Congress could regulate this expressive aspect of the

conduct under the test set forth in United States v. O’Brien,

4 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITU-

TIONAL RIGHTS, INC.

Opinion of the Court

391 U. S. 367 (1968). 291 F. Supp. 2d, at 311–314.

In rejecting FAIR’s constitutional claims, the District

Court disagreed with “the DOD’s proposed interpretation

that the statute requires law schools to ‘provide military

recruiters access to students that is at least equal in qual-

ity and scope to the access provided other potential em-

ployers.’ ” Id., at 321. In response to the District Court’s

concerns, Congress codified the DOD’s informal policy.

See H. R. Rep. No. 108–443, pt. 1, p. 6 (2004) (discussing

the District Court’s decision in this case and stating that

the amended statute “would address the court’s opinion

and codify the equal access standard”). The Solomon

Amendment now prevents an institution from receiving

certain federal funding if it prohibits military recruiters

“from gaining access to campuses, or access to students . . .

on campuses, for purposes of military recruiting in a man-

ner that is at least equal in quality and scope to the access

to campuses and to students that is provided to any other

employer.” 10 U. S. C. A. §983(b) (Supp. 2005).3

FAIR appealed the District Court’s judgment, arguing

that the recently amended Solomon Amendment was

unconstitutional for the same reasons as the earlier ver-

sion. A divided panel of the Court of Appeals for the Third

Circuit agreed. 390 F. 3d 219 (2004). According to the

Third Circuit, the Solomon Amendment violated the un-

constitutional conditions doctrine because it forced a law

school to choose between surrendering First Amendment

rights and losing federal funding for its university. Id., at

——————

3 The

federal funds covered by the Solomon Amendment are specified

at 10 U. S. C. A. §983(d)(1) (Supp. 2005) and include funding from the

Departments of Defense, Homeland Security, Transportation, Labor,

Health and Human Services, and Education, and the Central Intelli-

gence Agency and the National Nuclear Security Administration of the

Department of Energy. Funds provided for student financial assistance

are not covered. §983(d)(2). The loss of funding applies not only to the

particular school denying access but universitywide. §983(b).

Cite as: 547 U. S. ____ (2006) 5

Opinion of the Court

229–243. Unlike the District Court, the Court of Appeals

did not think that the O’Brien analysis applied because

the Solomon Amendment, in its view, regulated speech

and not simply expressive conduct. 390 F. 3d, at 243–244.

The Third Circuit nonetheless determined that if the

regulated activities were properly treated as expressive

conduct rather than speech, the Solomon Amendment was

also unconstitutional under O’Brien. 390 F. 3d, at 244–

246. As a result, the Court of Appeals reversed and re-

manded for the District Court to enter a preliminary

injunction against enforcement of the Solomon Amend-

ment. Id., at 246. A dissenting judge would have applied

O’Brien and affirmed. 390 F. 3d, at 260–262.

We granted certiorari. 544 U. S. 1017 (2005).

II

The Solomon Amendment denies federal funding to an

institution of higher education that “has a policy or prac-

tice . . . that either prohibits, or in effect prevents” the

military “from gaining access to campuses, or access to

students . . . on campuses, for purposes of military recruit-

ing in a manner that is at least equal in quality and scope

to the access to campuses and to students that is provided

to any other employer.” 10 U. S. C. A. §983(b) (Supp.

2005). The statute provides an exception for an institution

with “a longstanding policy of pacifism based on historical

religious affiliation.” §983(c)(2). The Government and

FAIR agree on what this statute requires: In order for a

law school and its university to receive federal funding,

the law school must offer military recruiters the same

access to its campus and students that it provides to the

nonmilitary recruiter receiving the most favorable access.

Certain law professors participating as amici, however,

argue that the Government and FAIR misinterpret the

statute. See Brief for William Alford et al. as Amici Cu-

riae 10–18; Brief for 56 Columbia Law School Faculty

6 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITU-

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Opinion of the Court

Members as Amici Curiae 6–15. According to these amici,

the Solomon Amendment’s equal-access requirement is

satisfied when an institution applies to military recruiters

the same policy it applies to all other recruiters. On this

reading, a school excluding military recruiters would

comply with the Solomon Amendment so long as it also

excluded any other employer that violates its nondiscrimi-

nation policy.

In its reply brief, the Government claims that this ques-

tion is not before the Court because it was neither in-

cluded in the questions presented nor raised by FAIR.

Reply Brief for United States 20, n. 4. But our review

may, in our discretion, encompass questions “ ‘fairly in-

cluded’ ” within the question presented, Yee v. Escondido,

503 U. S. 519, 535 (1992), and there can be little doubt that

granting certiorari to determine whether a statute is

constitutional fairly includes the question of what that

statute says. Nor must we accept an interpretation of a

statute simply because it is agreed to by the parties. After

all, “[o]ur task is to construe what Congress has enacted.”

Duncan v. Walker, 533 U. S. 167, 172 (2001). We think it

appropriate in the present case to consider whether institu-

tions can comply with the Solomon Amendment by apply-

ing a general nondiscrimination policy to exclude military

recruiters.

We conclude that they cannot and that the Government

and FAIR correctly interpret the Solomon Amendment.

The statute requires the Secretary of Defense to compare

the military’s “access to campuses” and “access to stu-

dents” to “the access to campuses and to students that is

provided to any other employer.” (Emphasis added.) The

statute does not call for an inquiry into why or how the

“other employer” secured its access. Under amici’s read-

ing, a military recruiter has the same “access” to campuses

and students as, say, a law firm when the law firm is

permitted on campus to interview students and the mili-

Cite as: 547 U. S. ____ (2006) 7

Opinion of the Court

tary is not. We do not think that the military recruiter

has received equal “access” in this situation—regardless of

whether the disparate treatment is attributable to the

military’s failure to comply with the school’s nondiscrimi-

nation policy.

The Solomon Amendment does not focus on the content

of a school’s recruiting policy, as the amici would have it.

Instead, it looks to the result achieved by the policy and

compares the “access . . . provided” military recruiters to

that provided other recruiters. Applying the same policy

to all recruiters is therefore insufficient to comply with the

statute if it results in a greater level of access for other

recruiters than for the military. Law schools must ensure

that their recruiting policy operates in such a way that

military recruiters are given access to students at least

equal to that “provided to any other employer.” (Emphasis

added.)

Not only does the text support this view, but this inter-

pretation is necessary to give effect to the Solomon

Amendment’s recent revision. Under the prior version,

the statute required “entry” without specifying how mili-

tary recruiters should be treated once on campus. 10

U. S. C. §983(b). The District Court thought that the DOD

policy, which required equal access to students once re-

cruiters were on campus, was unwarranted based on the

text of the statute. 291 F. Supp. 2d, at 321. Congress

responded directly to this decision by codifying the DOD

policy. Under amici’s interpretation, this legislative

change had no effect—law schools could still restrict mili-

tary access, so long as they do so under a generally appli-

cable nondiscrimination policy. Worse yet, the legislative

change made it easier for schools to keep military recruit-

ers out altogether: under the prior version, simple access

could not be denied, but under the amended version,

access could be denied altogether, so long as a nonmilitary

recruiter would also be denied access. That is rather

8 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITU-

TIONAL RIGHTS, INC.

Opinion of the Court

clearly not what Congress had in mind in codifying the

DOD policy. We refuse to interpret the Solomon Amend-

ment in a way that negates its recent revision, and indeed

would render it a largely meaningless exercise.

We therefore read the Solomon Amendment the way

both the Government and FAIR interpret it. It is insuffi-

cient for a law school to treat the military as it treats all

other employers who violate its nondiscrimination policy.

Under the statute, military recruiters must be given the

same access as recruiters who comply with the policy.

III

The Constitution grants Congress the power to “provide

for the common Defence,” “[t]o raise and support Armies,”

and “[t]o provide and maintain a Navy.” Art. I, §8, cls. 1,

12–13. Congress’ power in this area “is broad and sweep-

ing,” O’Brien, 391 U. S., at 377, and there is no dispute in

this case that it includes the authority to require campus

access for military recruiters. That is, of course, unless

Congress exceeds constitutional limitations on its power in

enacting such legislation. See Rostker v. Goldberg, 453

U. S. 57, 67 (1981). But the fact that legislation that raises

armies is subject to First Amendment constraints does not

mean that we ignore the purpose of this legislation when

determining its constitutionality; as we recognized in Rost-

ker, “judicial deference . . . is at its apogee” when Congress

legislates under its authority to raise and support armies.

Id., at 70.

Although Congress has broad authority to legislate on

matters of military recruiting, it nonetheless chose to

secure campus access for military recruiters indirectly,

through its Spending Clause power. The Solomon Amend-

ment gives universities a choice: Either allow military

recruiters the same access to students afforded any other

recruiter or forgo certain federal funds. Congress’ decision

to proceed indirectly does not reduce the deference given

Cite as: 547 U. S. ____ (2006) 9

Opinion of the Court

to Congress in the area of military affairs. Congress’

choice to promote its goal by creating a funding condition

deserves at least as deferential treatment as if Congress

had imposed a mandate on universities.

Congress’ power to regulate military recruiting under

the Solomon Amendment is arguably greater because

universities are free to decline the federal funds. In Grove

City College v. Bell, 465 U. S. 555, 575–576 (1984), we re-

jected a private college’s claim that conditioning federal

funds on its compliance with Title IX of the Education

Amendments of 1972 violated the First Amendment. We

thought this argument “warrant[ed] only brief considera-

tion” because “Congress is free to attach reasonable and

unambiguous conditions to federal financial assistance

that educational institutions are not obligated to accept.”

Id., at 575. We concluded that no First Amendment viola-

tion had occurred—without reviewing the substance of the

First Amendment claims—because Grove City could de-

cline the Government’s funds. Id., at 575–576.

Other decisions, however, recognize a limit on Congress’

ability to place conditions on the receipt of funds. We

recently held that “ ‘the government may not deny a bene-

fit to a person on a basis that infringes his constitutionally

protected . . . freedom of speech even if he has no entitle-

ment to that benefit.’ ” United States v. American Library

Assn., Inc., 539 U. S. 194, 210 (2003) (quoting Board of

Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 674

(1996) (some internal quotation marks omitted)). Under

this principle, known as the unconstitutional conditions

doctrine, the Solomon Amendment would be unconstitu-

tional if Congress could not directly require universities to

provide military recruiters equal access to their students.

This case does not require us to determine when a con-

dition placed on university funding goes beyond the “rea-

sonable” choice offered in Grove City and becomes an

unconstitutional condition. It is clear that a funding

10 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITU-

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Opinion of the Court

condition cannot be unconstitutional if it could be consti-

tutionally imposed directly. See Speiser v. Randall, 357

U. S. 513, 526 (1958). Because the First Amendment

would not prevent Congress from directly imposing the

Solomon Amendment’s access requirement, the statute

does not place an unconstitutional condition on the receipt

of federal funds.

A

The Solomon Amendment neither limits what law

schools may say nor requires them to say anything. Law

schools remain free under the statute to express whatever

views they may have on the military’s congressionally

mandated employment policy, all the while retaining

eligibility for federal funds. See Tr. of Oral Arg. 25 (Solici-

tor General acknowledging that law schools “could put

signs on the bulletin board next to the door, they could

engage in speech, they could help organize student pro-

tests”). As a general matter, the Solomon Amendment

regulates conduct, not speech. It affects what law schools

must do—afford equal access to military recruiters—not

what they may or may not say.

Nevertheless, the Third Circuit concluded that the

Solomon Amendment violates law schools’ freedom of

speech in a number of ways. First, in assisting military

recruiters, law schools provide some services, such as

sending e-mails and distributing flyers, that clearly in-

volve speech. The Court of Appeals held that in supplying

these services law schools are unconstitutionally com-

pelled to speak the Government’s message. Second, mili-

tary recruiters are, to some extent, speaking while they

are on campus. The Court of Appeals held that, by forcing

law schools to permit the military on campus to express its

message, the Solomon Amendment unconstitutionally

requires law schools to host or accommodate the military’s

speech. Third, although the Court of Appeals thought that

Cite as: 547 U. S. ____ (2006) 11

Opinion of the Court

the Solomon Amendment regulated speech, it held in the

alternative that, if the statute regulates conduct, this

conduct is expressive and regulating it unconstitutionally

infringes law schools’ right to engage in expressive con-

duct. We consider each issue in turn.4

1

Some of this Court’s leading First Amendment prece-

dents have established the principle that freedom of

speech prohibits the government from telling people what

they must say. In West Virginia Bd. of Ed. v. Barnette, 319

U. S. 624, 642 (1943), we held unconstitutional a state law

requiring schoolchildren to recite the Pledge of Allegiance

and to salute the flag. And in Wooley v. Maynard, 430

U. S. 705, 717 (1977), we held unconstitutional another

that required New Hampshire motorists to display the

state motto—“Live Free or Die”—on their license plates.

The Solomon Amendment does not require any similar

expression by law schools. Nonetheless, recruiting assis-

tance provided by the schools often includes elements of

speech. For example, schools may send e-mails or post

notices on bulletin boards on an employer’s behalf. See,

——————

4 The Court of Appeals also held that the Solomon Amendment vio-

lated the First Amendment because it compelled law schools to subsi-

dize the Government’s speech “by putting demands on the law schools’

employees and resources.” 390 F. 3d, at 240. We do not consider the

law schools’ assistance to raise the issue of subsidizing Government

speech as that concept has been used in our cases. See Johanns v.

Livestock Marketing Assn., 544 U. S. 550, 559 (2005). The accommoda-

tions the law schools must provide to military recruiters are minimal, are

not of a monetary nature, and are extended to all employers recruiting on

campus, not just the Government. And in Johanns, which was decided

after the Third Circuit’s decision in this case, we noted that our previ-

ous compelled-subsidy cases involved subsidizing private speech, and

we held that “[c]itizens may challenge compelled support of private

speech, but have no First Amendment right not to fund government

speech.” Id., at 562. The military recruiters’ speech is clearly Govern-

ment speech.

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e.g., App. 169–170; Brief for NALP (National Association

for Law Placement) et al. as Amici Curiae 11. Law schools

offering such services to other recruiters must also send

e-mails and post notices on behalf of the military to com-

ply with the Solomon Amendment. As FAIR points out,

these compelled statements of fact (“The U. S. Army re-

cruiter will meet interested students in Room 123 at 11

a.m.”), like compelled statements of opinion, are subject to

First Amendment scrutiny. See Brief for Respondents 25

(citing Riley v. National Federation of Blind of N. C., Inc.,

487 U. S. 781, 797–798 (1988)).

This sort of recruiting assistance, however, is a far cry

from the compelled speech in Barnette and Wooley. The

Solomon Amendment, unlike the laws at issue in those

cases, does not dictate the content of the speech at all,

which is only “compelled” if, and to the extent, the school

provides such speech for other recruiters. There is noth-

ing in this case approaching a Government-mandated

pledge or motto that the school must endorse.

The compelled speech to which the law schools point is

plainly incidental to the Solomon Amendment’s regulation

of conduct, and “it has never been deemed an abridgment of

freedom of speech or press to make a course of conduct

illegal merely because the conduct was in part initiated,

evidenced, or carried out by means of language, either

spoken, written, or printed.” Giboney v. Empire Storage &

Ice Co., 336 U. S. 490, 502 (1949). Congress, for example,

can prohibit employers from discriminating in hiring on the

basis of race. The fact that this will require an employer to

take down a sign reading “White Applicants Only” hardly

means that the law should be analyzed as one regulating

the employer’s speech rather than conduct. See R. A. V. v.

St. Paul, 505 U. S. 377, 389 (1992) (“[W]ords can in some

circumstances violate laws directed not against speech but

against conduct”). Compelling a law school that sends

scheduling e-mails for other recruiters to send one for a

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military recruiter is simply not the same as forcing a stu-

dent to pledge allegiance, or forcing a Jehovah’s Witness to

display the motto “Live Free or Die,” and it trivializes the

freedom protected in Barnette and Wooley to suggest that it

is.

2

Our compelled-speech cases are not limited to the situa-

tion in which an individual must personally speak the

government’s message. We have also in a number of

instances limited the government’s ability to force one

speaker to host or accommodate another speaker’s mes-

sage. See Hurley v. Irish-American Gay, Lesbian and Bi-

sexual Group of Boston, Inc., 515 U. S. 557, 566 (1995) (state

law cannot require a parade to include a group whose

message the parade’s organizer does not wish to send);

Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475

U. S. 1, 20–21 (1986) (plurality opinion); accord, id., at 25

(Marshall, J., concurring in judgment) (state agency cannot

require a utility company to include a third-party newsletter

in its billing envelope); Miami Herald Publishing Co. v.

Tornillo, 418 U. S. 241, 258 (1974) (right-of-reply statute

violates editors’ right to determine the content of their

newspapers). Relying on these precedents, the Third Circuit

concluded that the Solomon Amendment unconstitutionally

compels law schools to accommodate the military’s message

“[b]y requiring schools to include military recruiters in the

interviews and recruiting receptions the schools arrange.”

390 F. 3d, at 240.

The compelled-speech violation in each of our prior

cases, however, resulted from the fact that the complain-

ing speaker’s own message was affected by the speech it

was forced to accommodate. The expressive nature of a

parade was central to our holding in Hurley. 515 U. S., at

568 (“Parades are . . . a form of expression, not just mo-

tion, and the inherent expressiveness of marching to make

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a point explains our cases involving protest marches”). We

concluded that because “every participating unit affects

the message conveyed by the [parade’s] private organiz-

ers,” a law dictating that a particular group must be in-

cluded in the parade “alter[s] the expressive content of

th[e] parade.” Id., at 572–573. As a result, we held that

the State’s public accommodation law, as applied to a

private parade, “violates the fundamental rule of protec-

tion under the First Amendment, that a speaker has the

autonomy to choose the content of his own message.” Id.,

at 573.

The compelled-speech violations in Tornillo and Pacific

Gas also resulted from interference with a speaker’s de-

sired message. In Tornillo, we recognized that “the com-

pelled printing of a reply . . . tak[es] up space that could be

devoted to other material the newspaper may have pre-

ferred to print,” 418 U. S., at 256, and therefore concluded

that this right-of-reply statute infringed the newspaper

editors’ freedom of speech by altering the message the

paper wished to express, id., at 258. The same is true in

Pacific Gas. There, the utility company regularly included

its newsletter, which we concluded was protected speech,

in its billing envelope. 475 U. S., at 8–9. Thus, when the

state agency ordered the utility to send a third-party

newsletter four times a year, it interfered with the utility’s

ability to communicate its own message in its newsletter.

A plurality of the Court likened this to the situation in

Tornillo and held that the forced inclusion of the other

newsletter interfered with the utility’s own message. 475

U. S., at 16–18.

In this case, accommodating the military’s message 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. Law schools facili-

Cite as: 547 U. S. ____ (2006) 15

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tate recruiting to assist their students in obtaining jobs. A

law school’s recruiting services lack the expressive quality

of a parade, a newsletter, or the editorial page of a news-

paper; its accommodation of a military recruiter’s message

is not compelled speech because the accommodation does

not sufficiently interfere with any message of the school.

The schools respond that if they treat military and

nonmilitary recruiters alike in order to comply with the

Solomon Amendment, they could be viewed as sending the

message that they see nothing wrong with the military’s

policies, when they do. We rejected a similar argument in

PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980).

In that case, we upheld a state law requiring a shopping

center owner to allow certain expressive activities by others

on its property. We explained that there was little likeli-

hood that the views of those engaging in the expressive

activities would be identified with the owner, who remained

free to disassociate himself from those views and who was

“not . . . being compelled to affirm [a] belief in any govern-

mentally prescribed position or view.” Id., at 88.

The same is true here. 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. 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. Board of Ed. of Westside Community

Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990)

(plurality opinion); accord, id., at 268 (Marshall, J., concur-

ring in judgment); see also Rosenberger v. Rector and Visi-

tors of Univ. of Va., 515 U. S. 819, 841 (1995) (attribution

concern “not a plausible fear”). Surely students have not

lost that ability by the time they get to law school.

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3

Having rejected the view that the Solomon Amendment

impermissibly regulates speech, we must still consider

whether the expressive nature of the conduct regulated by

the statute brings that conduct within the First Amend-

ment’s protection. In O’Brien, we recognized that some

forms of “ ‘symbolic speech’ ” were deserving of First

Amendment protection. 391 U. S., at 376. But we rejected

the view that “conduct can be labeled ‘speech’ whenever

the person engaging in the conduct intends thereby to

express an idea.” Ibid. Instead, we have extended First

Amendment protection only to conduct that is inherently

expressive. In Texas v. Johnson, 491 U. S. 397, 406 (1989),

for example, we applied O’Brien and held that burning the

American flag was sufficiently expressive to warrant First

Amendment protection.

Unlike flag burning, the conduct regulated by the Solo-

mon Amendment is not inherently expressive. Prior to the

adoption of the Solomon Amendment’s equal-access re-

quirement, law schools “expressed” their disagreement

with the military by treating military recruiters differ-

ently from other recruiters. But these actions were ex-

pressive only because the law schools accompanied their

conduct with speech explaining it. For example, the point

of requiring military interviews to be conducted on the

undergraduate campus is not “overwhelmingly apparent.”

Johnson, supra, at 406. An observer who sees military

recruiters interviewing away from the law school has no

way of knowing whether the law school is expressing its

disapproval of the military, all the law school’s interview

rooms are full, or the military recruiters decided for rea-

sons of their own that they would rather interview some-

place else.

The expressive component of a law school’s actions is not

created by the conduct itself but by the speech that ac-

companies it. The fact that such explanatory speech is

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necessary is strong evidence that the conduct at issue here

is not so inherently expressive that it warrants protection

under O’Brien. If combining speech and conduct were

enough to create expressive conduct, a regulated party

could always transform conduct into “speech” simply by

talking about it. For instance, if an individual announces

that he intends to express his disapproval of the Internal

Revenue Service by refusing to pay his income taxes, we

would have to apply O’Brien to determine whether the Tax

Code violates the First Amendment. Neither O’Brien nor

its progeny supports such a result.

Although the Third Circuit also concluded that O’Brien

does not apply, it held in the alternative that the Solomon

Amendment does not pass muster under O’Brien because

the Government failed to produce evidence establishing

that the Solomon Amendment was necessary and effective.

390 F. 3d, at 245. The Court of Appeals surmised that “the

military has ample resources to recruit through alternative

means,” suggesting “loan repayment programs” and “televi-

sion and radio advertisements.” Id., at 234–235. As a

result, the Government—according to the Third Circuit—

failed to establish that the statute’s burden on speech is no

greater than essential to furthering its interest in military

recruiting. Id., at 245.

We disagree with the Court of Appeals’ reasoning and

result. We have held that “an incidental burden on speech

is no greater than is essential, and therefore is permissible

under O’Brien, so long as the neutral regulation promotes

a substantial government interest that would be achieved

less effectively absent the regulation.” United States v.

Albertini, 472 U. S. 675, 689 (1985). The Solomon Amend-

ment clearly satisfies this requirement. Military recruiting

promotes the substantial Government interest in raising

and supporting the Armed Forces—an objective that would

be achieved less effectively if the military were forced to

recruit on less favorable terms than other employers. The

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Court of Appeals’ proposed alternative methods of recruiting

are beside the point. The issue is not whether other means

of raising an army and providing for a navy might be ade-

quate. See id., at 689 (regulations are not “invalid simply

because there is some imaginable alternative that might be

less burdensome on speech”). That is a judgment for Con-

gress, not the courts. See U. S. Const., Art. I, §8, cls. 12–

13; Rostker, 453 U. S., at 64–65. It suffices that the means

chosen by Congress add to the effectiveness of military

recruitment. Accordingly, even if the Solomon Amendment

were regarded as regulating expressive conduct, it would

not violate the First Amendment under O’Brien.

B

The Solomon Amendment does not violate law schools’

freedom of speech, but the First Amendment’s protection

extends beyond the right to speak. We have recognized a

First Amendment right to associate for the purpose of

speaking, which we have termed a “right of expressive

association.” See, e.g., Boy Scouts of America v. Dale, 530

U. S. 640, 644 (2000). The reason we have extended First

Amendment protection in this way is clear: The right to

speak is often exercised most effectively by combining one’s

voice with the voices of others. See Roberts v. United States

Jaycees, 468 U. S. 609, 622 (1984). If the government were

free to restrict individuals’ ability to join together and

speak, it could essentially silence views that the First

Amendment is intended to protect. Ibid.

FAIR argues that the Solomon Amendment violates law

schools’ freedom of expressive association. According to

FAIR, law schools’ ability to express their message that

discrimination on the basis of sexual orientation is wrong

is significantly affected by the presence of military re-

cruiters on campus and the schools’ obligation to assist

them. Relying heavily on our decision in Dale, the Court

of Appeals agreed. 390 F. 3d, at 230–235.

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In Dale, we held that the Boy Scouts’ freedom of expres-

sive association was violated by New Jersey’s public ac-

commodations law, which required the organization to

accept a homosexual as a scoutmaster. After determining

that the Boy Scouts was an expressive association, that

“the forced inclusion of Dale would significantly affect its

expression,” and that the State’s interests did not justify

this intrusion, we concluded that the Boy Scout’s First

Amendment rights were violated. 530 U. S., at 655–659.

The Solomon Amendment, however, does not similarly

affect a law school’s associational rights. To comply with

the statute, law schools must allow military recruiters on

campus and assist them in whatever way the school

chooses to assist other employers. Law schools therefore

“associate” with military recruiters in the sense that they

interact with them. But recruiters are not part of the law

school. Recruiters are, by definition, outsiders who come

onto campus for the limited purpose of trying to hire stu-

dents—not to become members of the school’s expressive

association. This distinction is critical. Unlike the public

accommodations law in Dale, the Solomon Amendment

does not force a law school “ ‘to accept members it does not

desire.’ ” Id., at 648 (quoting Roberts, supra, at 623). The

law schools say that allowing military recruiters equal

access impairs their own expression by requiring them to

associate with the recruiters, but just as saying conduct is

undertaken for expressive purposes cannot make it sym-

bolic speech, see supra, at 16, so too a speaker cannot

“erect a shield” against laws requiring access “simply by

asserting” that mere association “would impair its mes-

sage.” 530 U. S., at 653.

FAIR correctly notes that the freedom of expressive asso-

ciation protects more than just a group’s membership deci-

sions. For example, we have held laws unconstitutional

that require disclosure of membership lists for groups

seeking anonymity, Brown v. Socialist Workers ’74 Cam-

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paign Comm. (Ohio), 459 U. S. 87, 101–102 (1982), or

impose penalties or withhold benefits based on member-

ship in a disfavored group, Healy v. James, 408 U. S. 169,

180–184 (1972). Although these laws did not directly

interfere with an organization’s composition, they made

group membership less attractive, raising the same First

Amendment concerns about affecting the group’s ability to

express its message.

The Solomon Amendment has no similar effect on a law

school’s associational rights. Students and faculty are free

to associate to voice their disapproval of the military’s

message; nothing about the statute affects the composition

of the group by making group membership less desirable.

The Solomon Amendment therefore does not violate a law

school’s First Amendment rights. A military recruiter’s

mere presence on campus does not violate a law school’s

right to associate, regardless of how repugnant the law

school considers the recruiter’s message.

* * *

In this case, FAIR has attempted to stretch a number of

First Amendment doctrines well beyond the sort of activi-

ties these doctrines protect. The law schools object to

having to treat military recruiters like other recruiters,

but that regulation of conduct does not violate the First

Amendment. To the extent that the Solomon Amendment

incidentally affects expression, the law schools’ effort to

cast themselves as just like the schoolchildren in Barnette,

the parade organizers in Hurley, and the Boy Scouts in

Dale plainly overstates the expressive nature of their

activity and the impact of the Solomon Amendment on it,

while exaggerating the reach of our First Amendment

precedents.

Because Congress could require law schools to provide

equal access to military recruiters without violating the

schools’ freedoms of speech or association, the Court of

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Opinion of the Court

Appeals erred in holding that the Solomon Amendment

likely violates the First Amendment. We therefore reverse

the judgment of the Third Circuit and remand the case for

further proceedings consistent with this opinion.

It is so ordered.

JUSTICE ALITO took no part in the consideration or

decision of this case.