[note] A few FAIR observations...

The Court may have been right that the law schools were asking for an extension of the expressive association doctrine (sort of a trite observation if you ask me--a case that makes it to the Supreme Court is rarely a simple application of clearly established law to familiar facts). But the expressive association claim was only one of the law schools' three claims, any one of which alone would have been sufficient to find a First Amendment violation. (As you know, the 3rd Circuit decided for the law schools on all three.)

Among the Court's several disingenuous moves, the ones I found most troubling are in the Court's treatment of the O'Brien symbolic speech doctrine (16-17). Under the earlier version of the solomon statute, the schools were only required to provide "access" to the military (not necessarily equal access). Under that version, many schools made purely symbolic gestures like assigning the military interviewers to rooms in a different building or allowing students to protest the recruiting events.

In response, Congress amended the statute to require equal access, precisely in order to quash any such symbolic acts. Why is this not a statute regulating symbolic speech, you might ask? Well, conduct is not considered symbolic speech unless it is "inherently expressive." The Court distinguishes Texas v. Johnson (flag burning is "inherently expressive" conduct and thus receives 1st Amendment protection) by arguing that "inherently expressive" means that the message you are expressing is "overwhelmingly apparent" by your conduct alone.

This is where the logic gets messy. The Court says that the law schools' non-discrimination message is not "overwhelmingly apparent" because "accompan[ying] explanatory speech" is necessary to understand the message behind the law schools' conduct. True enough. But don't blink now, because the Court just ratcheted up the standard, by a significant degree, without owning up to it. If there were truly a "no explanatory speech" requirement to the "inherently expressive" standard, then almost nothing, and certainly not flag burning, would be inherently expressive conduct. People burn flags for a variety of purposes, including to retire them with dignity. When a guy burns a flag, his message could be anything ranging from "stop the war" to "God Rest Old Glory." Or he could just get a kick out of burning shit. Without some additional indication, like a protest sign, a chant, or a recitation of the pledge, you'd be pretty clueless as to the intended message.

In spite of the fact that the "no explanatory speech" requirement is totally without precedent, and in spite of the fact that the Court never explains how flag burning could possibly meet this higher standard, the Court flippantly applies it to the law schools' conduct. Of course, the Court is right in the sense that, if someone grew up in a bubble, made it to law school never hearing of Don't Ask Don't Tell, and noticed that the military interviewers were sitting down the hall from everyone else, he or she might not understand why, absent some sort of explanatory context. But utter lack of explanatory context is simply not the legal standard, until ... well, this case.

It's fine by me if the Justices want to invent new interpretations of law in order to make their preordained conclusions seem plausible. They are the Supreme Court, after all. That's what they do. I just wish they would be open about changing the law instead of pretending like we are the ones "attempt[ing] to stretch" the First Amendment "well beyond" its intended reach.

The whole opinion, written by Roberts, reads as if the Court began its inquiry already knowing what it wanted to find. I'm disappointed. My mistake was letting myself hope that our new and esteemed Chief Justice would live up to his reputation as a straight shooter.

Justin