(Slip Opinion) OCTOBER TERM, 2005 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

RUMSFELD, SECRETARY OF DEFENSE, ET AL. v. 

FORUM FOR ACADEMIC AND INSTITUTIONAL 

RIGHTS, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE THIRD CIRCUIT 

No. 04–1152. Argued December 6, 2005—Decided March 6, 2006 

Respondent Forum for Academic and Institutional Rights, Inc. (FAIR), 

is an association of law schools and law faculties, whose members 

have policies opposing discrimination based on, inter alia, sexual orientation. They would like to restrict military recruiting on their 

campuses because they object to the Government’s policy on homosexuals in the military, but the Solomon Amendment—which provides that educational institutions denying military recruiters access 

equal to that provided other recruiters will lose certain federal 

funds—forces them to choose between enforcing their nondiscrimination policy against military recruiters and continuing to receive those 

funds. In 2003, FAIR sought a preliminary injunction against enforcement of an earlier version of the Solomon Amendment, arguing 

that forced inclusion and equal treatment of military recruiters violated its members’ First Amendment freedoms of speech and association. Denying relief on the ground that FAIR had not established a 

likelihood of success on the merits, the District Court concluded that 

recruiting is conduct, not speech, and thus Congress could regulate 

any expressive aspect of the military’s conduct under United States v. 

O’Brien, 391 U. S. 367. The District Court, however, questioned the 

Department of Defense (DOD) interpretation of the Solomon 

Amendment, under which law schools must provide recruiters access 

at least equal to that provided other recruiters. Congress responded 

to this concern by codifying the DOD’s policy. Reversing the District 

Court’s judgment, the Third Circuit concluded that the amended 

Solomon Amendment violates the unconstitutional conditions doctrine by forcing a law school to choose between surrendering First 
2 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Syllabus 

Amendment rights and losing federal funding for its university. The 

court did not think that O’Brien applied, but nonetheless determined 

that, if the activities were expressive conduct rather than speech, the 

Solomon Amendment was also unconstitutional under that decision. 

Held: Because Congress could require law schools to provide equal access to military recruiters without violating the schools’ freedoms of 

speech and association, the Third Circuit erred in holding that the 

Solomon Amendment likely violates the First Amendment. Pp. 5–21.

1. The Solomon Amendment should be read the way both the Government and FAIR interpret it: In order for a law school and its university to receive federal funding, the law school must offer military 

recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access. 

Contrary to the argument of amici law professors, a school excluding 

military recruiters could not comply with the Solomon Amendment 

by also excluding any other recruiter that violates its nondiscrimination policy. The Secretary of Defense must compare the military’s 

“access to campuses” and “to students” to “the access to campuses 

and to students that is provided to any other employer.” 10 

U. S. C. A. §983. The statute does not focus on the content of a 

school’s recruiting policy, but on the result achieved by the policy. 

Applying the same policy to all recruiters does not comply with the 

statute if it results in a greater level of access for other recruiters 

than for the military. This interpretation is supported by the text of 

the statute and is necessary to give effect to the Solomon Amendment’s recent revision. Pp. 5–8. 

2. Under the Solomon Amendment, a university must allow equal 

access for military recruiters in order to receive certain federal funds. 

Although there are limits on Congress’ ability to condition the receipt 

of funds, see, e.g., United States v. American Library Assn., Inc., 539 

U. S. 194, 210, a funding condition cannot be unconstitutional if it 

could be constitutionally imposed directly. Because the First 

Amendment would not prevent Congress from directly imposing the 

Solomon Amendment’s access requirement, the statute does not place 

an unconstitutional condition on the receipt of federal funds. Pp. 8– 

20. 

(a) As a general matter, the Solomon Amendment regulates conduct, not speech. Nevertheless, the Court of Appeals concluded that 

the statute violates law schools’ freedom of speech in a number of 

ways. First, the law schools must provide military recruiters with 

some assistance clearly involving speech, such as sending e-mails and 

distributing flyers, if they provide such services to other recruiters. 

This speech is subject to First Amendment scrutiny, but the compelled speech here is plainly incidental to the statute’s regulation of 
Cite as: 547 U. S. ____ (2006) 3 

Syllabus 

conduct. Compelling a law school that sends e-mails for other recruiters to send one for a military recruiter is simply not the same as 

forcing a student to pledge allegiance to the flag, West Virginia Bd. of 

Ed. v. Barnette, 319 U. S. 624, or forcing a Jehovah’s Witness to display a particular motto on his license plate, Wooley v. Maynard, 430 

U. S. 705, and it trivializes the freedom protected in Barnette and 

Wooley to suggest that it is. 

Second, that military recruiters are, to some extent, speaking while 

on campus does not mean that the Solomon Amendment unconstitutionally requires laws schools to accommodate the military’s message 

by including those recruiters in interviews and recruiting receptions. 

This Court has found compelled-speech violations where the complaining speaker’s own message was affected by the speech it was 

forced to accommodate. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566. Here, 

however, the schools are not speaking when they host interviews and 

recruiting receptions. They facilitate recruiting to assist their students in obtaining jobs. Thus, a law school’s recruiting services lack 

the expressive quality of, for example, the parade in Hurley. Nothing

about recruiting suggests that law schools agree with any speech by 

recruiters, and nothing in the Solomon Amendment restricts what 

they may say about the military’s policies. 

Third, freedom of speech can be violated by expressive conduct, but 

the expressive nature of the conduct regulated by the Solomon 

Amendment does not bring that conduct within the First Amendment’s protection. Unlike flag burning, see Texas v. Johnson, 491 

U. S. 397, the conduct here is not so inherently expressive that it 

warrants protection under O’Brien. Before adoption of the Solomon

Amendment’s equal-access requirement, law schools expressed their 

disagreement with the military by treating military recruiters differently from other recruiters. These actions were expressive not because of the conduct but because of the speech that accompanied that 

conduct. Moreover, even if the Solomon Amendment were regarded 

as regulating expressive conduct, it would be constitutional under 

O’Brien. Pp. 8–18. 

(b) The Solomon Amendment also does not violate the law 

schools’ freedom of expressive association. Unlike Boy Scouts of 

America v. Dale, 530 U. S. 640, where the Boy Scouts’ freedom of expressive association was violated when a state law required the organization to accept a homosexual scoutmaster, the statute here does 

not force a law school “ ‘to accept members it does not desire,’ ” id., at 

648. Law schools “associate” with military recruiters in the sense 

that they interact with them, but recruiters are not part of the school. 

They are outsiders who come onto campus for the limited purpose of 
4 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Syllabus 

trying to hire students—not to become members of the school’s expressive association. The freedom of expressive association protects 

more than a group’s membership decisions, reaching activities that 

affect a group’s ability to express its message by making group membership less attractive. But the Solomon Amendment has no similar 

effect on a law school’s associational rights. Students and faculty are

free to associate to voice their disapproval of the military’s message; 

nothing about the statute affects the composition of the group by 

making membership less desirable. Pp. 18–20. 

390 F. 3d 219, reversed and remanded. 

ROBERTS, C. J., delivered the opinion of the Court, in which all other 

Members joined, except ALITO, J., who took no part in the consideration 

or decision of the case. 
_________________ 

_________________ 

Cite as: 547 U. S. ____ (2006) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order 

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 04–1152 

DONALD H. RUMSFELD, SECRETARY OF DEFENSE, 

ET AL., PETITIONERS v. FORUM FOR ACADEMIC 

AND INSTITUTIONAL RIGHTS, INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE THIRD CIRCUIT 

[March 6, 2006] 

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court. 

When law schools began restricting the access of military recruiters to their students because of disagreement 

with the Government’s policy on homosexuals in the military, Congress responded by enacting the Solomon 

Amendment. See 10 U. S. C. A. §983 (Supp. 2005). That 

provision specifies that if any part of an institution of 

higher education denies military recruiters access equal to 

that provided other recruiters, the entire institution would 

lose certain federal funds. The law schools responded by

suing, alleging that the Solomon Amendment infringed 

their First Amendment freedoms of speech and association. The District Court disagreed but was reversed by a 

divided panel of the Court of Appeals for the Third Circuit, 

which ordered the District Court to enter a preliminary 

injunction against enforcement of the Solomon Amendment. We granted certiorari. 

I 

Respondent Forum for Academic and Institutional 
2 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Opinion of the Court

Rights, Inc. (FAIR), is an association of law schools and 

law faculties. App. 5. Its declared mission is “to promote 

academic freedom, support educational institutions in 

opposing discrimination and vindicate the rights of institutions of higher education.” Id., at 6. FAIR members 

have adopted policies expressing their opposition to discrimination based on, among other factors, sexual orientation. Id., at 18. They would like to restrict military recruiting on their campuses because they object to the 

policy Congress has adopted with respect to homosexuals 

in the military. See 10 U. S. C. §654.1 The Solomon 

Amendment, however, forces institutions to choose between enforcing their nondiscrimination policy against 

military recruiters in this way and continuing to receive 

specified federal funding.

In 2003, FAIR sought a preliminary injunction against 

enforcement of the Solomon Amendment, which at that 

time—it has since been amended—prevented the Department of Defense (DOD) from providing specified federal

funds to any institution of higher education “that either 

prohibits, or in effect prevents” military recruiters “from 

gaining entry to campuses.” §983(b).2 FAIR considered 

—————— 

1Under this policy, a person generally may not serve in the Armed 

Forces if he has engaged in homosexual acts, stated that he is a homosexual, or married a person of the same sex. Respondents do not 

challenge that policy in this litigation. 2The complaint named numerous other plaintiffs as well. The District Court concluded that each plaintiff had standing to bring this suit. 

291 F. Supp. 2d 269, 284–296 (NJ 2003). The Court of Appeals for the 

Third Circuit agreed with the District Court that FAIR had associational standing to bring this suit on behalf of its members. 390 F. 3d 

219, 228, n. 7 (2004). The Court of Appeals did not determine whether 

the other plaintiffs have standing because the presence of one party 

with standing is sufficient to satisfy Article III’s case-or-controversy 

requirement. Ibid. (citing Bowsher v. Synar, 478 U. S. 714, 721 (1986)). 

Because we also agree that FAIR has standing, we similarly limit our 

discussion to FAIR. 
Cite as: 547 U. S. ____ (2006) 3 

Opinion of the Court 

the DOD’s interpretation of this provision particularly 

objectionable. Although the statute required only “entry 

to campuses,” the Government—after the terrorist attacks 

on September 11, 2001—adopted an informal policy of

“ ‘requir[ing] universities to provide military recruiters 

access to students equal in quality and scope to that provided to other recruiters.’ ” 291 F. Supp. 2d 269, 283 (NJ 

2003). Prior to the adoption of this policy, some law 

schools sought to promote their nondiscrimination policies 

while still complying with the Solomon Amendment by 

having military recruiters interview on the undergraduate 

campus. Id., at 282. But under the equal access policy, 

military recruiters had to be permitted to interview at the 

law schools, if other recruiters did so. 

FAIR argued that this forced inclusion and equal treatment of military recruiters violated the law schools’ First 

Amendment freedoms of speech and association. According to FAIR, the Solomon Amendment was unconstitutional because it forced law schools to choose between 

exercising their First Amendment right to decide whether 

to disseminate or accommodate a military recruiter’s

message, and ensuring the availability of federal funding 

for their universities. 

The District Court denied the preliminary injunction on 

the ground that FAIR had failed to establish a likelihood 

of success on the merits of its First Amendment claims. 

The District Court held that inclusion “of an unwanted 

periodic visitor” did not “significantly affect the law 

schools’ ability to express their particular message or 

viewpoint.” Id., at 304. The District Court based its 

decision in large part on the determination that recruiting

is conduct and not speech, concluding that any expressive

aspect of recruiting “is entirely ancillary to its dominant 

economic purpose.” Id., at 308. The District Court held 

that Congress could regulate this expressive aspect of the 

conduct under the test set forth in United States v. O’Brien, 
4 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Opinion of the Court

391 U. S. 367 (1968). 291 F. Supp. 2d, at 311–314. 

In rejecting FAIR’s constitutional claims, the District 

Court disagreed with “the DOD’s proposed interpretation 

that the statute requires law schools to ‘provide military 

recruiters access to students that is at least equal in quality and scope to the access provided other potential employers.’ ” Id., at 321. In response to the District Court’s 

concerns, Congress codified the DOD’s informal policy. 

See H. R. Rep. No. 108–443, pt. 1, p. 6 (2004) (discussing 

the District Court’s decision in this case and stating that 

the amended statute “would address the court’s opinion

and codify the equal access standard”). The Solomon 

Amendment now prevents an institution from receiving 

certain federal funding if it prohibits military recruiters 

“from gaining access to campuses, or access to students . . . 

on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access

to campuses and to students that is provided to any other

employer.” 10 U. S. C. A. §983(b) (Supp. 2005).3 

FAIR appealed the District Court’s judgment, arguing

that the recently amended Solomon Amendment was 

unconstitutional for the same reasons as the earlier version. A divided panel of the Court of Appeals for the Third 

Circuit agreed. 390 F. 3d 219 (2004). According to the 

Third Circuit, the Solomon Amendment violated the unconstitutional conditions doctrine because it forced a law 

school to choose between surrendering First Amendment 

rights and losing federal funding for its university. Id., at 

—————— 

3The federal funds covered by the Solomon Amendment are specified 

at 10 U. S. C. A. §983(d)(1) (Supp. 2005) and include funding from the 

Departments of Defense, Homeland Security, Transportation, Labor, 

Health and Human Services, and Education, and the Central Intelligence Agency and the National Nuclear Security Administration of the 

Department of Energy. Funds provided for student financial assistance 

are not covered. §983(d)(2). The loss of funding applies not only to the 

particular school denying access but universitywide. §983(b). 
Cite as: 547 U. S. ____ (2006) 5 

Opinion of the Court 

229–243. Unlike the District Court, the Court of Appeals 

did not think that the O’Brien analysis applied because 

the Solomon Amendment, in its view, regulated speech 

and not simply expressive conduct. 390 F. 3d, at 243–244. 

The Third Circuit nonetheless determined that if the 

regulated activities were properly treated as expressive 

conduct rather than speech, the Solomon Amendment was

also unconstitutional under O’Brien. 390 F. 3d, at 244– 

246. As a result, the Court of Appeals reversed and remanded for the District Court to enter a preliminary

injunction against enforcement of the Solomon Amendment. Id., at 246. A dissenting judge would have applied 

O’Brien and affirmed. 390 F. 3d, at 260–262. 

We granted certiorari. 544 U. S. 1017 (2005). 

II 

The Solomon Amendment denies federal funding to an 

institution of higher education that “has a policy or practice . . . that either prohibits, or in effect prevents” the 

military “from gaining access to campuses, or access to

students . . . on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope 

to the access to campuses and to students that is provided 

to any other employer.” 10 U. S. C. A. §983(b) (Supp. 

2005). The statute provides an exception for an institution 

with “a longstanding policy of pacifism based on historical 

religious affiliation.” §983(c)(2). The Government and 

FAIR agree on what this statute requires: In order for a 

law school and its university to receive federal funding, 

the law school must offer military recruiters the same 

access to its campus and students that it provides to the

nonmilitary recruiter receiving the most favorable access.

Certain law professors participating as amici, however, 

argue that the Government and FAIR misinterpret the 

statute. See Brief for William Alford et al. as Amici Curiae 10–18; Brief for 56 Columbia Law School Faculty 
6 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Opinion of the Court

Members as Amici Curiae 6–15. According to these amici, 

the Solomon Amendment’s equal-access requirement is 

satisfied when an institution applies to military recruiters 

the same policy it applies to all other recruiters. On this 

reading, a school excluding military recruiters would

comply with the Solomon Amendment so long as it also 

excluded any other employer that violates its nondiscrimination policy. 

In its reply brief, the Government claims that this question is not before the Court because it was neither included in the questions presented nor raised by FAIR. 

Reply Brief for United States 20, n. 4. But our review 

may, in our discretion, encompass questions “ ‘fairly included’ ” within the question presented, Yee v. Escondido, 

503 U. S. 519, 535 (1992), and there can be little doubt that 

granting certiorari to determine whether a statute is 

constitutional fairly includes the question of what that 

statute says. Nor must we accept an interpretation of a 

statute simply because it is agreed to by the parties. After 

all, “[o]ur task is to construe what Congress has enacted.” 

Duncan v. Walker, 533 U. S. 167, 172 (2001). We think it 

appropriate in the present case to consider whether institutions can comply with the Solomon Amendment by applying a general nondiscrimination policy to exclude military 

recruiters. 

We conclude that they cannot and that the Government 

and FAIR correctly interpret the Solomon Amendment. 

The statute requires the Secretary of Defense to compare 

the military’s “access to campuses” and “access to students” to “the access to campuses and to students that is 

provided to any other employer.” (Emphasis added.) The 

statute does not call for an inquiry into why or how the 

“other employer” secured its access. Under amici’s reading, a military recruiter has the same “access” to campuses

and students as, say, a law firm when the law firm is 

permitted on campus to interview students and the mili-
Cite as: 547 U. S. ____ (2006) 7 

Opinion of the Court 

tary is not. We do not think that the military recruiter 

has received equal “access” in this situation—regardless of 

whether the disparate treatment is attributable to the 

military’s failure to comply with the school’s nondiscrimination policy. 

The Solomon Amendment does not focus on the content 

of a school’s recruiting policy, as the amici would have it. 

Instead, it looks to the result achieved by the policy and

compares the “access . . . provided” military recruiters to 

that provided other recruiters. Applying the same policy

to all recruiters is therefore insufficient to comply with the 

statute if it results in a greater level of access for other 

recruiters than for the military. Law schools must ensure 

that their recruiting policy operates in such a way that 

military recruiters are given access to students at least 

equal to that “provided to any other employer.” (Emphasis

added.)

Not only does the text support this view, but this interpretation is necessary to give effect to the Solomon 

Amendment’s recent revision. Under the prior version,

the statute required “entry” without specifying how military recruiters should be treated once on campus. 10 

U. S. C. §983(b). The District Court thought that the DOD 

policy, which required equal access to students once recruiters were on campus, was unwarranted based on the 

text of the statute. 291 F. Supp. 2d, at 321. Congress

responded directly to this decision by codifying the DOD 

policy. Under amici’s interpretation, this legislative 

change had no effect—law schools could still restrict military access, so long as they do so under a generally applicable nondiscrimination policy. Worse yet, the legislative 

change made it easier for schools to keep military recruiters out altogether: under the prior version, simple access

could not be denied, but under the amended version, 

access could be denied altogether, so long as a nonmilitary 

recruiter would also be denied access. That is rather 
8 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Opinion of the Court

clearly not what Congress had in mind in codifying the 

DOD policy. We refuse to interpret the Solomon Amendment in a way that negates its recent revision, and indeed 

would render it a largely meaningless exercise.

We therefore read the Solomon Amendment the way 

both the Government and FAIR interpret it. It is insufficient for a law school to treat the military as it treats all

other employers who violate its nondiscrimination policy. 

Under the statute, military recruiters must be given the

same access as recruiters who comply with the policy. 

III 

The Constitution grants Congress the power to “provide 

for the common Defence,” “[t]o raise and support Armies,” 

and “[t]o provide and maintain a Navy.” Art. I, §8, cls. 1, 

12–13. Congress’ power in this area “is broad and sweeping,” O’Brien, 391 U. S., at 377, and there is no dispute in 

this case that it includes the authority to require campus 

access for military recruiters. That is, of course, unless 

Congress exceeds constitutional limitations on its power in 

enacting such legislation. See Rostker v. Goldberg, 453 

U. S. 57, 67 (1981). But the fact that legislation that raises 

armies is subject to First Amendment constraints does not 

mean that we ignore the purpose of this legislation when 

determining its constitutionality; as we recognized in Rostker, “judicial deference . . . is at its apogee” when Congress 

legislates under its authority to raise and support armies. 

Id., at 70. 

Although Congress has broad authority to legislate on

matters of military recruiting, it nonetheless chose to 

secure campus access for military recruiters indirectly, 

through its Spending Clause power. The Solomon Amendment gives universities a choice: Either allow military 

recruiters the same access to students afforded any other 

recruiter or forgo certain federal funds. Congress’ decision 

to proceed indirectly does not reduce the deference given 
Cite as: 547 U. S. ____ (2006) 9 

Opinion of the Court 

to Congress in the area of military affairs. Congress’

choice to promote its goal by creating a funding condition 

deserves at least as deferential treatment as if Congress 

had imposed a mandate on universities. 

Congress’ power to regulate military recruiting under 

the Solomon Amendment is arguably greater because 

universities are free to decline the federal funds. In Grove 

City College v. Bell, 465 U. S. 555, 575–576 (1984), we rejected a private college’s claim that conditioning federal 

funds on its compliance with Title IX of the Education 

Amendments of 1972 violated the First Amendment. We 

thought this argument “warrant[ed] only brief consideration” because “Congress is free to attach reasonable and 

unambiguous conditions to federal financial assistance 

that educational institutions are not obligated to accept.” 

Id., at 575. We concluded that no First Amendment violation had occurred—without reviewing the substance of the 

First Amendment claims—because Grove City could decline the Government’s funds. Id., at 575–576. 

Other decisions, however, recognize a limit on Congress’ 

ability to place conditions on the receipt of funds. We 

recently held that “ ‘the government may not deny a benefit to a person on a basis that infringes his constitutionally 

protected . . . freedom of speech even if he has no entitlement to that benefit.’ ” United States v. American Library 

Assn., Inc., 539 U. S. 194, 210 (2003) (quoting Board of 

Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 674 

(1996) (some internal quotation marks omitted)). Under 

this principle, known as the unconstitutional conditions 

doctrine, the Solomon Amendment would be unconstitutional if Congress could not directly require universities to 

provide military recruiters equal access to their students. 

This case does not require us to determine when a condition placed on university funding goes beyond the “reasonable” choice offered in Grove City and becomes an 

unconstitutional condition. It is clear that a funding 
10 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Opinion of the Court 

condition cannot be unconstitutional if it could be constitutionally imposed directly. See Speiser v. Randall, 357 

U. S. 513, 526 (1958). Because the First Amendment 

would not prevent Congress from directly imposing the 

Solomon Amendment’s access requirement, the statute 

does not place an unconstitutional condition on the receipt 

of federal funds. 

A 

The Solomon Amendment neither limits what law 

schools may say nor requires them to say anything. Law 

schools remain free under the statute to express whatever 

views they may have on the military’s congressionally 

mandated employment policy, all the while retaining 

eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools “could put 

signs on the bulletin board next to the door, they could 

engage in speech, they could help organize student protests”). As a general matter, the Solomon Amendment 

regulates conduct, not speech. It affects what law schools 

must do—afford equal access to military recruiters—not 

what they may or may not say. 

Nevertheless, the Third Circuit concluded that the 

Solomon Amendment violates law schools’ freedom of 

speech in a number of ways. First, in assisting military 

recruiters, law schools provide some services, such as 

sending e-mails and distributing flyers, that clearly involve speech. The Court of Appeals held that in supplying

these services law schools are unconstitutionally compelled to speak the Government’s message. Second, military recruiters are, to some extent, speaking while they 

are on campus. The Court of Appeals held that, by forcing

law schools to permit the military on campus to express its 

message, the Solomon Amendment unconstitutionally

requires law schools to host or accommodate the military’s 

speech. Third, although the Court of Appeals thought that 
Cite as: 547 U. S. ____ (2006) 11 

Opinion of the Court 

the Solomon Amendment regulated speech, it held in the 

alternative that, if the statute regulates conduct, this

conduct is expressive and regulating it unconstitutionally 

infringes law schools’ right to engage in expressive conduct. We consider each issue in turn.4 

1 

Some of this Court’s leading First Amendment precedents have established the principle that freedom of 

speech prohibits the government from telling people what 

they must say. In West Virginia Bd. of Ed. v. Barnette, 319 

U. S. 624, 642 (1943), we held unconstitutional a state law 

requiring schoolchildren to recite the Pledge of Allegiance 

and to salute the flag. And in Wooley v. Maynard, 430 

U. S. 705, 717 (1977), we held unconstitutional another 

that required New Hampshire motorists to display the 

state motto—“Live Free or Die”—on their license plates. 

The Solomon Amendment does not require any similar 

expression by law schools. Nonetheless, recruiting assistance provided by the schools often includes elements of 

speech. For example, schools may send e-mails or post 

notices on bulletin boards on an employer’s behalf. See, 

—————— 

4The Court of Appeals also held that the Solomon Amendment violated the First Amendment because it compelled law schools to subsidize the Government’s speech “by putting demands on the law schools’ 

employees and resources.” 390 F. 3d, at 240. We do not consider the 

law schools’ assistance to raise the issue of subsidizing Government 

speech as that concept has been used in our cases. See Johanns v. 

Livestock Marketing Assn., 544 U. S. 550, 559 (2005). The accommodations the law schools must provide to military recruiters are minimal, are 

not of a monetary nature, and are extended to all employers recruiting on 

campus, not just the Government. And in Johanns, which was decided 

after the Third Circuit’s decision in this case, we noted that our previous compelled-subsidy cases involved subsidizing private speech, and 

we held that “[c]itizens may challenge compelled support of private 

speech, but have no First Amendment right not to fund government 

speech.” Id., at 562. The military recruiters’ speech is clearly Government speech. 
12 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Opinion of the Court 

e.g., App. 169–170; Brief for NALP (National Association 

for Law Placement) et al. as Amici Curiae 11. Law schools 

offering such services to other recruiters must also send 

e-mails and post notices on behalf of the military to comply with the Solomon Amendment. As FAIR points out, 

these compelled statements of fact (“The U. S. Army recruiter will meet interested students in Room 123 at 11 

a.m.”), like compelled statements of opinion, are subject to 

First Amendment scrutiny. See Brief for Respondents 25 

(citing Riley v. National Federation of Blind of N. C., Inc., 

487 U. S. 781, 797–798 (1988)). 

This sort of recruiting assistance, however, is a far cry 

from the compelled speech in Barnette and Wooley. The 

Solomon Amendment, unlike the laws at issue in those 

cases, does not dictate the content of the speech at all, 

which is only “compelled” if, and to the extent, the school 

provides such speech for other recruiters. There is nothing in this case approaching a Government-mandated 

pledge or motto that the school must endorse. 

The compelled speech to which the law schools point is 

plainly incidental to the Solomon Amendment’s regulation 

of conduct, and “it has never been deemed an abridgment of 

freedom of speech or press to make a course of conduct 

illegal merely because the conduct was in part initiated, 

evidenced, or carried out by means of language, either 

spoken, written, or printed.” Giboney v. Empire Storage & 

Ice Co., 336 U. S. 490, 502 (1949). Congress, for example, 

can prohibit employers from discriminating in hiring on the 

basis of race. The fact that this will require an employer to 

take down a sign reading “White Applicants Only” hardly 

means that the law should be analyzed as one regulating 

the employer’s speech rather than conduct. See R. A. V. v. 

St. Paul, 505 U. S. 377, 389 (1992) (“[W]ords can in some 

circumstances violate laws directed not against speech but 

against conduct”). Compelling a law school that sends 

scheduling e-mails for other recruiters to send one for a 
Cite as: 547 U. S. ____ (2006) 13 

Opinion of the Court 

military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to 

display the motto “Live Free or Die,” and it trivializes the 

freedom protected in Barnette and Wooley to suggest that it 

is. 

2 

Our compelled-speech cases are not limited to the situation in which an individual must personally speak the 

government’s message. We have also in a number of 

instances limited the government’s ability to force one 

speaker to host or accommodate another speaker’s message. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566 (1995) (state 

law cannot require a parade to include a group whose 

message the parade’s organizer does not wish to send); 

Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 

U. S. 1, 20–21 (1986) (plurality opinion); accord, id., at 25 

(Marshall, J., concurring in judgment) (state agency cannot 

require a utility company to include a third-party newsletter 

in its billing envelope); Miami Herald Publishing Co. v. 

Tornillo, 418 U. S. 241, 258 (1974) (right-of-reply statute 

violates editors’ right to determine the content of their 

newspapers). Relying on these precedents, the Third Circuit 

concluded that the Solomon Amendment unconstitutionally 

compels law schools to accommodate the military’s message 

“[b]y requiring schools to include military recruiters in the 

interviews and recruiting receptions the schools arrange.” 

390 F. 3d, at 240. 

The compelled-speech violation in each of our prior 

cases, however, resulted from the fact that the complaining speaker’s own message was affected by the speech it 

was forced to accommodate. The expressive nature of a

parade was central to our holding in Hurley. 515 U. S., at 

568 (“Parades are . . . a form of expression, not just motion, and the inherent expressiveness of marching to make 
14 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Opinion of the Court 

a point explains our cases involving protest marches”). We 

concluded that because “every participating unit affects 

the message conveyed by the [parade’s] private organizers,” a law dictating that a particular group must be included in the parade “alter[s] the expressive content of 

th[e] parade.” Id., at 572–573. As a result, we held that 

the State’s public accommodation law, as applied to a 

private parade, “violates the fundamental rule of protection under the First Amendment, that a speaker has the

autonomy to choose the content of his own message.” Id., 

at 573. 

The compelled-speech violations in Tornillo and Pacific 

Gas also resulted from interference with a speaker’s desired message. In Tornillo, we recognized that “the compelled printing of a reply . . . tak[es] up space that could be 

devoted to other material the newspaper may have preferred to print,” 418 U. S., at 256, and therefore concluded 

that this right-of-reply statute infringed the newspaper 

editors’ freedom of speech by altering the message the 

paper wished to express, id., at 258. The same is true in 

Pacific Gas. There, the utility company regularly included

its newsletter, which we concluded was protected speech, 

in its billing envelope. 475 U. S., at 8–9. Thus, when the 

state agency ordered the utility to send a third-party 

newsletter four times a year, it interfered with the utility’s 

ability to communicate its own message in its newsletter. 

A plurality of the Court likened this to the situation in 

Tornillo and held that the forced inclusion of the other 

newsletter interfered with the utility’s own message. 475 

U. S., at 16–18. 

In this case, accommodating the military’s message does 

not affect the law schools’ speech, because the schools are 

not speaking when they host interviews and recruiting 

receptions. Unlike a parade organizer’s choice of parade 

contingents, a law school’s decision to allow recruiters on 

campus is not inherently expressive. Law schools facili-
Cite as: 547 U. S. ____ (2006) 15 

Opinion of the Court 

tate recruiting to assist their students in obtaining jobs. A 

law school’s recruiting services lack the expressive quality 

of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter’s message 

is not compelled speech because the accommodation does 

not sufficiently interfere with any message of the school. 

The schools respond that if they treat military and 

nonmilitary recruiters alike in order to comply with the 

Solomon Amendment, they could be viewed as sending the 

message that they see nothing wrong with the military’s 

policies, when they do. We rejected a similar argument in 

PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980). 

In that case, we upheld a state law requiring a shopping

center owner to allow certain expressive activities by others 

on its property. We explained that there was little likelihood that the views of those engaging in the expressive 

activities would be identified with the owner, who remained 

free to disassociate himself from those views and who was 

“not . . . being compelled to affirm [a] belief in any governmentally prescribed position or view.” Id., at 88. 

The same is true here. Nothing about recruiting suggests 

that law schools agree with any speech by recruiters, and 

nothing in the Solomon Amendment restricts what the law 

schools may say about the military’s policies. We have held 

that high school students can appreciate the difference 

between speech a school sponsors and speech the school 

permits because legally required to do so, pursuant to an 

equal access policy. Board of Ed. of Westside Community 

Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) 

(plurality opinion); accord, id., at 268 (Marshall, J., concurring in judgment); see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 841 (1995) (attribution 

concern “not a plausible fear”). Surely students have not 

lost that ability by the time they get to law school. 
16 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Opinion of the Court 

3 

Having rejected the view that the Solomon Amendment 

impermissibly regulates speech, we must still consider 

whether the expressive nature of the conduct regulated by

the statute brings that conduct within the First Amendment’s protection. In O’Brien, we recognized that some 

forms of “ ‘symbolic speech’ ” were deserving of First 

Amendment protection. 391 U. S., at 376. But we rejected 

the view that “conduct can be labeled ‘speech’ whenever 

the person engaging in the conduct intends thereby to 

express an idea.” Ibid. Instead, we have extended First 

Amendment protection only to conduct that is inherently 

expressive. In Texas v. Johnson, 491 U. S. 397, 406 (1989), 

for example, we applied O’Brien and held that burning the 

American flag was sufficiently expressive to warrant First 

Amendment protection. 

Unlike flag burning, the conduct regulated by the Solomon Amendment is not inherently expressive. Prior to the 

adoption of the Solomon Amendment’s equal-access requirement, law schools “expressed” their disagreement 

with the military by treating military recruiters differently from other recruiters. But these actions were expressive only because the law schools accompanied their 

conduct with speech explaining it. For example, the point 

of requiring military interviews to be conducted on the 

undergraduate campus is not “overwhelmingly apparent.” 

Johnson, supra, at 406. An observer who sees military 

recruiters interviewing away from the law school has no 

way of knowing whether the law school is expressing its 

disapproval of the military, all the law school’s interview 

rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.

The expressive component of a law school’s actions is not 

created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is 
Cite as: 547 U. S. ____ (2006) 17 

Opinion of the Court 

necessary is strong evidence that the conduct at issue here 

is not so inherently expressive that it warrants protection 

under O’Brien. If combining speech and conduct were 

enough to create expressive conduct, a regulated party 

could always transform conduct into “speech” simply by 

talking about it. For instance, if an individual announces 

that he intends to express his disapproval of the Internal 

Revenue Service by refusing to pay his income taxes, we 

would have to apply O’Brien to determine whether the Tax 

Code violates the First Amendment. Neither O’Brien nor 

its progeny supports such a result. 

Although the Third Circuit also concluded that O’Brien 

does not apply, it held in the alternative that the Solomon 

Amendment does not pass muster under O’Brien because 

the Government failed to produce evidence establishing 

that the Solomon Amendment was necessary and effective. 

390 F. 3d, at 245. The Court of Appeals surmised that “the 

military has ample resources to recruit through alternative 

means,” suggesting “loan repayment programs” and “television and radio advertisements.” Id., at 234–235. As a 

result, the Government—according to the Third Circuit— 

failed to establish that the statute’s burden on speech is no 

greater than essential to furthering its interest in military 

recruiting. Id., at 245. 

We disagree with the Court of Appeals’ reasoning and 

result. We have held that “an incidental burden on speech 

is no greater than is essential, and therefore is permissible 

under O’Brien, so long as the neutral regulation promotes 

a substantial government interest that would be achieved 

less effectively absent the regulation.” United States v. 

Albertini, 472 U. S. 675, 689 (1985). The Solomon Amendment clearly satisfies this requirement. Military recruiting 

promotes the substantial Government interest in raising 

and supporting the Armed Forces—an objective that would 

be achieved less effectively if the military were forced to 

recruit on less favorable terms than other employers. The 
18 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Opinion of the Court 

Court of Appeals’ proposed alternative methods of recruiting

are beside the point. The issue is not whether other means 

of raising an army and providing for a navy might be adequate. See id., at 689 (regulations are not “invalid simply 

because there is some imaginable alternative that might be 

less burdensome on speech”). That is a judgment for Congress, not the courts. See U. S. Const., Art. I, §8, cls. 12– 

13; Rostker, 453 U. S., at 64–65. It suffices that the means 

chosen by Congress add to the effectiveness of military 

recruitment. Accordingly, even if the Solomon Amendment 

were regarded as regulating expressive conduct, it would 

not violate the First Amendment under O’Brien. 

B 

The Solomon Amendment does not violate law schools’ 

freedom of speech, but the First Amendment’s protection 

extends beyond the right to speak. We have recognized a 

First Amendment right to associate for the purpose of 

speaking, which we have termed a “right of expressive 

association.” See, e.g., Boy Scouts of America v. Dale, 530 

U. S. 640, 644 (2000). The reason we have extended First 

Amendment protection in this way is clear: The right to 

speak is often exercised most effectively by combining one’s 

voice with the voices of others. See Roberts v. United States 

Jaycees, 468 U. S. 609, 622 (1984). If the government were 

free to restrict individuals’ ability to join together and 

speak, it could essentially silence views that the First 

Amendment is intended to protect. Ibid. 

FAIR argues that the Solomon Amendment violates law 

schools’ freedom of expressive association. According to

FAIR, law schools’ ability to express their message that 

discrimination on the basis of sexual orientation is wrong 

is significantly affected by the presence of military recruiters on campus and the schools’ obligation to assist 

them. Relying heavily on our decision in Dale, the Court 

of Appeals agreed. 390 F. 3d, at 230–235. 
Cite as: 547 U. S. ____ (2006) 19 

Opinion of the Court

 In Dale, we held that the Boy Scouts’ freedom of expressive association was violated by New Jersey’s public accommodations law, which required the organization to 

accept a homosexual as a scoutmaster. After determining 

that the Boy Scouts was an expressive association, that 

“the forced inclusion of Dale would significantly affect its 

expression,” and that the State’s interests did not justify 

this intrusion, we concluded that the Boy Scout’s First 

Amendment rights were violated. 530 U. S., at 655–659. 

The Solomon Amendment, however, does not similarly

affect a law school’s associational rights. To comply with 

the statute, law schools must allow military recruiters on 

campus and assist them in whatever way the school 

chooses to assist other employers. Law schools therefore 

“associate” with military recruiters in the sense that they 

interact with them. But recruiters are not part of the law 

school. Recruiters are, by definition, outsiders who come 

onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive 

association. This distinction is critical. Unlike the public 

accommodations law in Dale, the Solomon Amendment 

does not force a law school “ ‘to accept members it does not 

desire.’” Id., at 648 (quoting Roberts, supra, at 623). The 

law schools say that allowing military recruiters equal 

access impairs their own expression by requiring them to

associate with the recruiters, but just as saying conduct is 

undertaken for expressive purposes cannot make it symbolic speech, see supra, at 16, so too a speaker cannot 

“erect a shield” against laws requiring access “simply by 

asserting” that mere association “would impair its message.” 530 U. S., at 653. 

FAIR correctly notes that the freedom of expressive association protects more than just a group’s membership decisions. For example, we have held laws unconstitutional 

that require disclosure of membership lists for groups 

seeking anonymity, Brown v. Socialist Workers ’74 Cam-
20 RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC. 

Opinion of the Court 

paign Comm. (Ohio), 459 U. S. 87, 101–102 (1982), or 

impose penalties or withhold benefits based on membership in a disfavored group, Healy v. James, 408 U. S. 169, 

180–184 (1972). Although these laws did not directly 

interfere with an organization’s composition, they made 

group membership less attractive, raising the same First 

Amendment concerns about affecting the group’s ability to 

express its message.

The Solomon Amendment has no similar effect on a law 

school’s associational rights. Students and faculty are free

to associate to voice their disapproval of the military’s

message; nothing about the statute affects the composition 

of the group by making group membership less desirable. 

The Solomon Amendment therefore does not violate a law 

school’s First Amendment rights. A military recruiter’s

mere presence on campus does not violate a law school’s 

right to associate, regardless of how repugnant the law 

school considers the recruiter’s message. 

* * * 

In this case, FAIR has attempted to stretch a number of 

First Amendment doctrines well beyond the sort of activities these doctrines protect. The law schools object to 

having to treat military recruiters like other recruiters, 

but that regulation of conduct does not violate the First 

Amendment. To the extent that the Solomon Amendment 

incidentally affects expression, the law schools’ effort to 

cast themselves as just like the schoolchildren in Barnette, 

the parade organizers in Hurley, and the Boy Scouts in 

Dale plainly overstates the expressive nature of their 

activity and the impact of the Solomon Amendment on it,

while exaggerating the reach of our First Amendment 

precedents.

Because Congress could require law schools to provide 

equal access to military recruiters without violating the 

schools’ freedoms of speech or association, the Court of 
Cite as: 547 U. S. ____ (2006) 21 

Opinion of the Court 

Appeals erred in holding that the Solomon Amendment 

likely violates the First Amendment. We therefore reverse 

the judgment of the Third Circuit and remand the case for 

further proceedings consistent with this opinion. 

It is so ordered. 

JUSTICE ALITO took no part in the consideration or 

decision of this case.