One of our readers has taken a close look at the Third Circuit’s FAIR decision with an insider’s eye. He writes:
Is it too late to raise a cry against the confusion in our entitlement culture between the withholding of a benefit and the deprivation of a right? Probably.
This decision is dead on arrival. It is in line with recent intermediate appellate court opinions where they impudently attempt to take leftward iterations off the high court’s rightward iterations, and end up in a place where the high court can only slap them down, not so much for the leftward tack, as for simply being seduced by the parties into a quantum jungle of nano-sensibilities. Looking at the list of attorneys, it’s not hard to see how the court got lost, with 36 voices clanging in their ear. After hacking through the rain forest, the sense of relief, upon reaching the “clearing” of Judge Aldisert’s dissent, was palpable.
One interesting technical point. The court eschews the presumption that a statute is constitutional and shifts the burden to the government to establish constitutionality of the statute. I was a little suspicious how it got there, especially when the standard of proof can ultimately be dispositive. In fn 8, the court opines “although a duly enacted statute normally carries with it a presumption of constitutionality, when a [statute] allegedly infringes on the exercise of [F]irst [A]mendment rights, the statute’s proponent bears the burden of establishing [its] constitutionality.” ACORN v. City of Frontenac, 714 F.2d 813, 817 (8th Cir.1983) (citing Org. for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971)) This is a correct statement from ACORN.
However, ACORN took some liberty with Keefe. The statement in the cited Keefe case was actually limited to prior restraints on speech: “Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity. Carroll v. President and Commissioners of Prinecess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint.” So, in other words, the court applied to a fuzzy claim of “expressive association,” a standard appropriate to more serious claims of prior restraint.
Putting the burden on the government is quite telling. In the balancing of interest section, the court cavalierly dismisses the government’s interest in recruiting military lawyers. The court, believing they know better than the government, suggests that the Solomon Amendment may actually impede recruitment by generating ill will toward the military (maybe the ill will was already there?). The court also makes much of the fact the government offered no evidence that requiring schools to provide a forum enhanced recruitment efforts. Why would the government do it if it didn’t? How could it not? I was left with a suspicion that the majority shared the anti-military animus of the plaintiffs.