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Monday, March 06, 2006

More on the Solomon Amendment case

Over at the Volokh Conspiracy, Dale Carpenter has posted relevant thoughts and analysis.  With respect to the Court's handling of FAIR's Dale claim, Professor Carpenter writes:

Gone is the Court’s insistence, explicit in the Dale opinion, that we must defer to the association’s own judgment about what types of government regulation would impair its message. While the Court agrees that associational freedom is not limited to decisions about membership, it now suggests that regulations of associations are objectionable only (?) if they “mak[e] group membership less attractive.” Slip op. at 20. This, too, is something we have not before seen in the Court’s decisions. Prior to this decision, I believe, the Court has worried primarily about the effect a regulation might have on the group’s ability to get across its message, however that impediment operated. Now the focus of associational freedom seems to have been narrowed to concerns about effects on membership that in turn may affect message.

Professor Carpenter knows this area of the law as well as anyone.  That said, I am not sure that the Boy Scouts idea -- or, the O'Connor concurrence in Jaycees idea --  is "gone" that courts should defer, for the most part, to expressive associations' determinations regarding (a) the content of their own messages and (b) the effect on their messages of government-required inclusion of members and leaders.  Nor did I read the Court's opinion as a departure from its worry about "the effect a regulation might have on the group’s ability to get across its message, however that impediment operated."  That is, I don't (yet) see the "narrow[ing]" of "focus" that Professor Carpenter mentions.  I'd appreciate others' views.

Here are more reactions from Althouse, Marty Lederman, and Bainbridge.

Posted by Rick Garnett on March 6, 2006 at 11:40 PM | Permalink


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