Sotomayor, J., dissenting
absent the regulation.’ ” FAIR, 547 U. S., at 67 (quoting United States v. Albertini, 472 U. S. 675, 689 (1985)).[1]
FAIR confronted the interaction between this principle and an equal-access law. The law at issue was the Solomon Amendment, which prohibits an institution of higher education in receipt of federal funding from denying a military recruiter “the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.” 547 U. S., at 55; see 10 U. S. C. §983(b). A group of law schools challenged the Solomon Amendment based on their sincere objection to the military’s “Don’t Ask, Don’t Tell” policy. For those who are too young to know, “Don’t Ask, Don’t Tell” was a homophobic policy that barred openly LGBT people from serving in the military. LGBT people could serve only if they kept their identities secret. The idea was that their open existence was a threat to the military.
The law schools in FAIR claimed that the Solomon Amendment infringed the schools’ First Amendment freedom of speech. The schools provided recruiting assistance in the form of emails, notices on bulletin boards, and flyers. 547 U. S., at 60–61. As the Court acknowledged, those services “clearly involve speech.” Id., at 60. And the Solomon Amendment required “schools offering such services to other recruiters” to provide them equally “on behalf of the military,” even if the school deeply objected to creating such speech. Id., at 61. But that did not transform the equal provision of services into “compelled speech” of the kind barred by the First Amendment, because the school’s speech was “only ‘compelled’ if, and to the extent, the school provides such speech for other recruiters.” Id., at 62. Thus,
- ↑ The majority commits a fundamental error in suggesting that a law does not regulate conduct if it ever applies to expressive activities. See ante, at 19, 22. This would come as a great surprise to the O’Brien Court.
