Times of war and First Amendment1 controversies - the two invariably and inevitably go hand in hand. Whether it is Paul Robert Cohen's anti-draft jacket2 and the publication of the so-called Pentagon Papers3 during the conflict in Vietnam, or Charles T. Schenck's anti-draft leaflets4 and the publication of the Staats Zeitung5 during World War I, the confluence of conflict and communication creates litigation.
The situation today, with fighting in both Iraq and Afghanistan, is no exception. For instance, several access-related disputes already have arisen. Notably, publisher Larry C. Flynt6 lost a legal fight before a federal appellate court in February 2004, in which he claimed a First Amendment right of news media access to United States troops in combat operations in the Middle East.7 The press lost an earlier battle for access to special-interest deportation hearings of individuals with knowledge of the September 11, 2001 terrorist attacks when the Supreme Court declined to review a federal appellate court's decision in North Jersey Media Group, Inc. v. Ashcroft.8
While these First Amendment access battles are now complete, another fight involving a very different type of access - access sought by the military, not by the press or private individuals - is now hitting full stride, and it is the subject of this article. In particular, a number of prominent law school professors, as well as a collection of anonymous law schools,9 are challenging the constitutionality of a federal statute known as the Solomon Amendment.10 This law allows the government to deny federal funding to institutions of higher education that prevent on-campus military recruiting.11 The professors in Forum for Academic and Institutional Rights, Inc. v. Rumsfeld,12 as well as those involved in three other cases simultaneously challenging the federal law,13 are using the First Amendment not to gain access for themselves but, instead, to deny it to the military. More precisely, the plaintiffs in Forum for Academic and Institutional Rights contend that the Solomon Amendment "conditions a benefit - federal funding - on the surrendering of law schools' First Amendment rights of academic freedom, free speech, and freedom of expressive association," and is unconstitutional.14 The case thus represents a radical departure from the access disputes described above involving Larry Flynt and the North Jersey Media Group in which the First Amendment was used as a tool to try to gain access, not as a weapon to try to prevent it.15
The professors and law schools involved, however, are using the First Amendment to promote positive Fourteenth Amendment-based principles of equality under the law.16 As Kent Greenfield,17 a professor of law at Boston College and the president of the lead plaintiff organization in Forum for Academic and Institutional Rights, put it in a Washington Post commentary in November 2003:
Imagine if the government took away the driver's license of anyone who opposed pay raises for government bureaucrats. Imagine it cut off Social Security benefits to retirees who protested the Iraq war. Suppose it withheld a university's cancer research funds because the school refused to support the military's policy of discrimination against gays and lesbians.
That last example isn't imaginary - it's the law of the land. The law is called the Solomon Amendment, and it gives the Department of Defense the power to cut federal funds to universities unless they give up deeply held beliefs about the equality of students.
The statute is pockmarked with constitutional flaws. Primary among them is the government's attempt to use the power of the purse to reshape the academic environment and suppress educational messages in ways it could never accomplish by direct command.18
Despite such impassioned pleas, Judge John C. Lifland denied the plaintiffs' motion for a preliminary injunction in November 2003 "on the basis that Plaintiffs [did] not establish a likelihood of success on the merits of their constitutional challenges to the Solomon Amendment. …