Expressive litigation.

Lawprof Marci Hamilton has a new column on the Solomon Amendment case, Rumsfeld v. Forum for Academic and Institutional Reform [FAIR]. She explains the difficult First Amendment argument the law school faculty plaintiffs make:

FAIR must claim that anyone who sees military recruiters on campus will assume the military's policy on homosexuals is endorsed by the school. Therefore, the school, by being forced to host the recruiters (or lose funds), is forced, in effect, to mouth the government's message - which, FAIR argues, violates the First Amendment.

But the assertion that anyone would confuse the military's message with the host school's message is ludicrous. It is well-known - and statistics and anecdotes bear out -- that law schools and their faculty are overwhelmingly dominated by liberals. Indeed, the legal academy is famously a haven for liberal orthodoxy and fundamentalism. And one of liberals' well-known values is equality regardless of sexual orientation....

[T]he Amendment doesn't gag anyone, the reality is that any student who signs up for such interviews has to be thick-skinned, determined, or both.... I watched students at NYU Law School literally run the gauntlet to simply interview with the military (let alone take such a job). Thus, it is laughable to claim - as FAIR does, and must -- that the military's policies could, or would, be ascribed to law schools' dominant powers.

Supplying the room for the interview isn't enough to count as the law schools' forced expression of a belief it disagrees with, Hamilton argues, and I'm sure the Court will agree with her.

There's much more in her essay, which you should read, but I'll just add that litigation itself is expressive, and the lawprofs fighting this losing battle are still succeeding in expressing their disapproval of the military's "Don't Ask, Don't Tell" policy. Through the lawsuit, they are winning a great deal of attention to their arguments, and this may be worth doing.

Still, there are two problems.

First, some may think that a court should not be transformed into a political forum. Indeed, many of the Justices themselves think that, and attempts to use the courts this way can provoke them to design restrictive doctrines to prevent it.

Second, the argument getting the attention in the Solomon Amendment case is not centered on attacking the military's discriminatory policy. It's a complicated free speech argument that isn't persuasive. Worse, it's about using free speech ideas to empower the person who is not speaking to control the speech of the person who wants to speak. What's the point of promoting that idea?