02 December 2004


There has been quite a bit of commentary around the web in the last few days on the Solomon Amendment matter. Even on this blawg. Leaving aside the doctrinal problem I pointed out in that post, I think both sides have legitimate gripes about the ruling. That doesn't change the unethical nature of the underlying law, which appears to involve misstatements made on the floor of the House in order to establish a legislative record; but that's for another time, and another forum.

Those who would defend the Solomon Amendment have a fair point when they complain that the strictly constitutional argument, at least based on existing constitutional doctrine, is pretty weak. Perhaps more than anything else, this opinion undermines the stated rationale in Rust v. Sullivan and the various "forced advertising contributions" cases. What it really comes down to is this: The Court, at a constitutional level, has held that forced contributions may violate free speech, but that government regulations that force speech in return for government dollars probably do not. To say the least, this is a formalism with very little relationship to reality. The ultimate behavior (a trade of money for forced speech) is the same; only the mechanism has been changed to protect the consciences of the guilty. At least at a constitutional level, it shouldn't matter which comes first (the offer of money or the withholding/charging of it); all that should matter is the use of government authority in coercion to bring on appropriate First Amendment scrutiny, whatever that mechanism is.

Those who would attack the Solomon Amendment have a fair point when they complain that "the standard of review is always determined by the preconceived notions of the judges concerning the substance of the speech in question." Although this inelegant formulation doesn't make it very clear, this is really a complaint that "there is no content without context." For example, had Mr Cohen's jacket entered the LA County Courthouse in 1957 instead of at the height of the Vietnam protests, even an identical Supreme Court with identical precedent in front of it might well have decided things the opposite way. That, however, is an example of why this is really not a proper matter for constitutional consideration. I am an archfoe of the Miller v. California doctrine of "local community standards," particularly when applied in a way that results de facto in imposition of a national standard. Of course, that is precisely what the proponents of the Solomon Amendment intended as a result.

I remain unconvinced that there is a constitutional case to answer here, at least in the absence of some real reconsideration of the logic in some well-established doctrine. I remain convinced, however, that the policy under examination has no factual foundation in reality, despite the rhetoric stated on the floor of the House, and therefore constitutes an arbitrary and capricious policy outside the proper scope of legislative action.