Necessary Roughness

Update from a case I mentioned in December:

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 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.

The Supreme Court in Rumsfeld vs. Forum for Academic and Institutional Rights, Inc. (PDF) ruled that the government is not prohibiting free speech when it makes federal funds a condition of the college providing access to students, AP reports.

The 25-page decision has some interesting points. Chief Justice John Roberts used a little bit of humor when he stated that since high school students could tell the difference between school-sponsored speech and school-allowed speech, that law students could as well. There is also an interesting principle cited: government cannot demand behavior through conditional funding that it can’t legislate directly. That principle comes from United States vs. Butler, 1936.