A. Expressive association before and after Dale

An expressive association claim focuses on the particular features of “associations”—collections of individuals that operate as a cohesive group, institution, or entity—that state laws may interfere with when such entities engage in communicative or expressive activities. The doctrine recognizes the possibility that regulation can sometimes intrude upon an organization's ability to undertake its chosen form of expression, and it provides the organization with an opportunity to demonstrate that speech values entitle it to an exemption from the law's operation.

One of the Supreme Court's earliest articulations of this proposition came in the 1958 case of NAACP v. Alabama ex rel. Patterson. Footnote ¹⁵ As part of their concerted resistance to desegregation and the enfranchisement of Black voters, Alabama and other states invoked state corporation laws in an effort to compel the National Association for the Advancement of Colored People and its local affiliates to disclose the names of their members. In the atmosphere of intimidation and violence that prevailed in many quarters at the time, the NAACP asserted that compelled disclosure of its membership lists would effectively destroy the organization's ability to function by intimidating members from contributing their money or their efforts to the organization's advocacy. The Court agreed. Laying the foundation for the expressive association doctrine, the Court unanimously held that “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association” and that “[i]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the … freedom of speech.”Footnote ¹⁶ Alabama failed to show an interest in its generic disclosure laws that was sufficient to justify a threat to that freedom, and the NAACP was allowed to continue protecting its members' anonymity.Footnote ¹⁷

Though it had its roots in a decision that was supportive of the civil rights movement's impulse toward promoting equality values, expressive association doctrine quickly came to be embraced by organizations seeking to resist the application of antidiscrimination laws and other forms of progressive regulation. This second generation of expressive association petitioners has come to define the dominant paradigm for the doctrine, and, in resisting antidiscrimination laws, these petitioners have claimed a different and subtler form of interference with their ability to engage in advocacy and expression. In Alabama ex rel. Patterson, the NAACP argued (with good reason) that the Alabama regulation threatened to destroy their association altogether. The second generation of associational claimants, in contrast, have argued that antidiscrimination laws, in depriving them of control over whom they accept as members, threaten to alter, undermine, or obscure the message that a given association wishes to convey. The claim is either that the newly admitted members will not themselves be interested in conveying the association's message, or that the newly admitted members will compromise the ability of the association to communicate its message to an external audience. A frequently invoked example—as absurd as it is effective, given its counterfactual conceit—calls upon one to imagine a law that compels the Ku Klux Klan to admit Black or Jewish members. Such individuals would presumably both resist the KKK's message of White gentile supremacy within the organization and, at the same time, deprive the KKK of credibility in its ability to communicate that message to an external audience, since a visibly mixed membership would belie the message of segregation.Footnote ¹⁸

In Alabama ex rel. Patterson, the Court did not require the NAACP to make an extensive factual showing at the trial level in support of its claim that the forced disclosure of membership lists would effectively destroy the organization. As the Court explained, the NAACP had “made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members [had] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”Footnote ¹⁹ These facts, considered against the backdrop of hostility toward civil rights workers and organizations in the Deep South that was a matter of common understanding during this era, were sufficient for the Court to conclude on appeal that the NAACP was entitled to the First Amendment shield that it sought.

With the second generation of expressive association cases, however, the Supreme Court adopted a more stringent view toward claims of interference with expression. Since the threat to an association's expressive activities is more attenuated in this class of cases—relying upon assertions about symbolic impact or prevailing attitudes rather than threats of violence and economic reprisal—the Court came to demand a concomitantly more demanding standard of First Amendment claimants. Associations seeking an exception to an antidiscrimination law or other generally applicable provision had to make a factual showing at trial, and a robust one, establishing the nature of their expressive activities and demonstrating how the law threatened to undermine those activities. Where the very existence of an association was not clearly being placed in jeopardy, as had been the case in Alabama ex rel. Patterson, the Court was not willing to take the factual underpinnings of the claim on faith.

The leading case before Dale that addressed the right to exclude, and that most powerfully embodied this shift, was Roberts v. United States Jaycees (1984).Footnote ²⁰ In Jaycees, the Court held that a state could constitutionally require an all-male association of young businessmen to admit women as full voting members, where previously they had been admitted only as nonvoting participants. The Court's opinion reaffirmed the proposition that the freedom of speech that the First Amendment guarantees is often exercised collectively, and so entails a certain degree of freedom of association. That liberty, in turn, sometimes entails a right to exclude unwanted members:

At the same time that it embraced this more expansive view of the type of interference that might give rise to a First Amendment claim, the Court also imposed doctrinal limits upon the right it had thus created. First and foremost, it demanded the factual showing that had been implicitly deemed unnecessary in Alabama ex rel. Patterson. While interference with membership “may impair” the association's expressive activities,Footnote ²² it falls to the association to establish the nature of its expressive practice and to demonstrate just how changes in its membership will undermine that practice. The Jaycees failed in their claim, in part, because of their inability to make a sufficient showing on that score.Footnote ²³ In addition, the Court held that even interference with membership that demonstrably interferes with expressive practice could be justified by “compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”Footnote ²⁴ The result was a balancing test: antidiscrimination norms could legitimately be imposed on associations in the absence of a convincing showing of expressive burden, and perhaps even where such a burden existed, if the state interest were great enough. In practice, free association claims unrelated to viewpoint discrimination lost in the Supreme Court under this standard.Footnote ²⁵

Then came Dale. The decision in Dale represented an enormous departure from its predecessors. Despite a litigation context that appeared to be a natural progression from Jaycees and its progeny—a case firmly within the second generation of expressive association claims—the Dale majority shifted to an extraordinarily permissive standard in the factual showing that it demanded of associational claimants. Going further even than Alabama ex rel. Patterson (where, recall, the very existence of the NAACP had been placed in jeopardy by terroristic threats), the Court adopted a posture of almost complete deference to an association's claim that an antidiscrimination law's interference with decisions about a small number of members would undermine the group's expressive practice.

The Dale case involved a New Jersey public accommodations statute that prohibited discrimination on the basis of sexual orientation. The Boy Scouts revoked the membership of James Dale, an Eagle Scout and assistant scoutmaster, after a newspaper story (which did not mention his affiliation with the Scouts) identified him as an officer of his college's lesbian and gay student organization. Dale successfully sued under the statute. The Boy Scouts of America claimed that the application of the law to their New Jersey chapters would violate their freedom of expression, but the New Jersey Supreme Court, applying the Jaycees test, was “not persuaded … that a shared goal of Boy Scout members is to associate in order to preserve the view that homosexuality is immoral.”Footnote ²⁶ The court noted that the Scouts had not, in their public materials, taken any position whatsoever concerning the morality of homosexuality prior to litigation. It therefore held “that Dale's membership does not violate the Boy Scouts' right of expressive association because his inclusion would not ‘affect in any significant way [the Boy Scouts'] existing members' ability to carry out their various purposes.’ ”Footnote ²⁷ The Boy Scouts, in other words, had failed to make the robust factual showing that Jaycees demanded.

The U.S. Supreme Court reversed the New Jersey court's decision. The Supreme Court's opinion is muddled and its reasoning imprecisely rendered, but the steps of its analysis essentially proceed as follows: (1) The Scouts are an association that “engages in expressive activity”Footnote ²⁸ protected by the First Amendment. (2) Forced inclusion of a member therefore violates the First Amendment if it “would significantly affect the Boy Scouts' ability to advocate public or private viewpoints.”Footnote ²⁹ (3) The Boy Scouts assert that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those values represented by the requirement that Scouts be “morally straight” and “clean.” (4) The Court must give deference to an organization's assertions regarding the nature of its expression. (5) “[W]e must also give deference to an association's view of what would impair its expression.”Footnote ³⁰ (6) “Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”Footnote ³¹ (7) Therefore, the First Amendment prohibits application of the antidiscrimination law to the Scouts.

In essence, the Court held that the Scouts were entitled to an exception to New Jersey's antidiscrimination law because they said in their litigation papers that they needed it. The Scouts had taken positions in the litigation about the nature of their expressive practice and the manner in which state law would interfere with that practice, the Court found, and that was all the Court needed to know. The Boy Scouts were an association that “engages in expressive activity,” and that was sufficient.

The opinion in Dale does not state a clear rule to guide lower courts, but it seems to imply two shocking propositions: that all antidiscrimination laws are unconstitutional whenever they are applied to associations that object; and that citizens are allowed to disobey laws whenever obedience would be perceived by others as endorsing some unwanted message. As to the first proposition, almost any noncommercial organization can make the de minimis showing that is necessary to classify it as an “expressive association,” and Dale appears to impose only that threshold requirement for full access to the broad rights it articulates. Steps (1) through (5) of the Court's reasoning, taken together, appear to permit any such litigant to resist an antidiscrimination law merely by asserting in litigation that the law interferes with some inchoate expressive practice. (In the Dale case, the expressive practice that entitled the Boy Scouts to a victory consisted largely of the Scouts' traditional camping and wilderness activities.)Footnote ³² If courts must then give “Dale deference” to that assertion, as the opinion itself implies, then the case is over and the litigant must receive its First Amendment exemption.

As to the second proposition, the Supreme Court appears to embrace the view in step (6) of its reasoning that the state impermissibly imposes a message upon an unwilling speaker whenever it forces compliance with a law that would be perceived as having symbolic implications with which the subject disagrees. The Scouts could refuse to admit gay members, the Court apparently held, because they said that the presence of gay Scouts might have symbolic meaning to the outside world and the Scouts would be the unwilling billboards of that message. Once again, the Court appears to “defer” to the litigant's assertions as to when an impermissible imputation of a message is present. The implications of this second, “compelled speech” holding are even broader than the first proposition outlined above. The compelled speech doctrine is available to any claimant, even the largest for-profit corporation.Footnote ³³ If the Court really meant what it said in Dale, it appeared to be licensing any litigant to resist any form of state regulation, merely by arguing that compliance with the regulation would impose an unwelcome symbolic message upon the subject.Footnote ³⁴

Cases after Dale revealed the unsustainably broad implications of the Court's opinion, along with lower courts' reluctance to follow out those implications. Courts have rejected Dale-based challenges to a city ordinance prohibiting commercial sex clubs;Footnote ³⁵ a gun control statute limiting the use of certain weapons to licensed gun clubs (effectively pressuring nonmembers to join such clubs);Footnote ³⁶ the use of undercover officers to enforce a prohibition against “lap dancing”;Footnote ³⁷ a statute banning children's access to a public clothing-optional park;Footnote ³⁸ a state university's decision to strip a fraternity of its status as a recognized student organization where it was found that members had abused illegal drugs;Footnote ³⁹ and, not least, a city ordinance prohibiting discrimination on the basis of sexual orientation.Footnote ⁴⁰ The logic of the Dale opinion made the claimants' arguments colorable in all these cases, but the lower courts were unwilling to follow that opinion's logic to its conclusions.

Prior to the Solomon litigation, only three reported cases relied upon Dale in upholding a claim of freedom of association. The Boy Scouts themselves were a party in two of these, one of which carves out a category of “nonexpressive” jobs in the Scouting organization, to which Dale does not apply.Footnote ⁴¹ The other involved a males-only meeting conducted by the Nation of Islam, and thus raised questions of the autonomy of religious groups that are different from those presented by ordinary association claims.Footnote ⁴² Until the Third Circuit's decision in FAIR v. Rumsfeld (2004),Footnote ⁴³ no lower court had upheld a Dale claim involving a nonreligious association other than the Boy Scouts. The lower federal courts seemed to be on their way to confining Dale to its facts.Footnote ⁴⁴

And, indeed, for all its broad language, the Dale decision involved a factual situation that could be understood as placing many limitations on the new doctrine that it had announced. Unlike many technically not-for-profit entities, the Boy Scouts really do engage almost entirely in activities that are far removed from commerce. It is an organization of teenagers, largely supervised by volunteer adults, who go camping and participate in other recreational and community activities. Earlier Supreme Court decisions had made clear that the noncommercial character of an organization's pursuits would weigh in favor of an expressive association claim. Moreover, the State of New Jersey had sought to compel the Boy Scouts to accept, not just a member (i.e., another scout), but a person in a leadership position, placing the Scouts on much firmer ground in arguing that the Jaycees decision, with its references to membership and interference with expression, supported their claim. And the Boy Scouts, though a national organization, operated on a small scale in locally organized troops, painting a sympathetic picture of an informal entity that should remain free from state regulation. The Dale decision was still wrong, and dangerously so, in exempting the Scouts from making the factual showings (about the nature of their expressive activities and the alleged interference with those activities) that Jaycees had long since required. But it was still possible to approach the Dale case as articulating a rule that would apply, if at all, only in a limited context in future cases.

The law professor plaintiffs in the Solomon litigation sought to explode that context. The expansion of Dale that the Solomon plaintiffs called for would have disassembled all the implicit limitations that kept that beast at bay. American law schools, unlike the Boy Scouts, are deeply and directly enmeshed with powerful commercial forces. The credentialing and regulatory rules that govern the practice of law make law schools almost the sole gatekeepers to that powerful and highly compensated profession. The activity at issue in the Solomon litigation—the manner in which law schools would manage the recruitment of their students at this high-stakes commercial job fair—was unquestionably a “commercial” activity, even if undertaken by institutions that formally operated on a not-for-profit basis. (As a point of comparison, the Jaycees also operate as a not-for-profit corporation,Footnote ⁴⁵ but the Supreme Court found that they engaged in “various commercial programs” that served as important gateways to professional advancementFootnote ⁴⁶ and that this “commercial nature” militated in favor of their amenability to state regulation.)Footnote ⁴⁷ And law schools are powerful economic entities with clear quasi-public features: they employ large numbers of workers, collect steep tuition from students, and are presumptively open to any applicant who can qualify for admission.

What is more, the type of interference that the law schools were claiming with their expressive activities—their ability to be effective and credible in communicating a message of inclusiveness toward their gay, lesbian, and bisexual students—was a far cry from the interference that the Court had recognized in the cases stretching from Jaycees to Dale. There was no question of “membership” in the Solomon litigation.Footnote ⁴⁸ The Solomon Amendment does not require law schools to admit anyone as a faculty member, staff employee, or student. All the law requires is that law schools permit JAG recruiters to participate on an episodic basis—typically, once or twice per year—in the job fairs that law schools host for potential employers who wish to interview their students. Presenting quite the opposite of a “membership” question, these job fairs explicitly involve the invitation of outsiders into the law school as temporary guests. The form of interference with expression that the Court recognized as a matter of principle in Jaycees, and found as a matter of fact in Dale, is entirely absent on law school campuses under Solomon.

Finally, the actual core of the argument for interference with expression in the Solomon litigation was simply not credible. In plain language, the law professors claimed that their ability to express a message of inclusiveness toward their LGBT students was fatally undermined by the presence twice each year of JAG recruiters at the schools' commercial job fairs.Footnote ⁴⁹ As FAIR put it in their main brief before the Supreme Court: “To the distress of law deans and faculty, members of their communities have concluded that the schools are not committed to antidiscrimination, and that the law schools have lost credibility to preach values of equality, justice, and human dignity.”Footnote ⁵⁰ One is invited to imagine that law students, upon seeing the presence of the military recruiters on campus, will either assume that the law school has invited them there as a sign of its approval of Don't Ask, Don't Tell, despite their knowledge of the law school's vigorous protests; or else that the mere presence of the recruiters at the commercial job fair “poisons the atmosphere” at a law school for the entire rest of the year, so that even students who understand that the school does not share the military's views will never again be able to hear that message from the administration or faculty with open ears.Footnote ⁵¹

These suggestions blink reality. To be sure, faculty, staff, and students who care about these issues might be very unhappy about the presence of military recruiters and what they believe those recruiters to represent. They might even feel differently about messages of inclusiveness and equality when they must occasionally confront the discordant reality that one of our most important public institutions rejects that message. But this is not interference with the expression of law schools or law faculty. It is merely the fabric of reality against which that expression must attempt to take hold. It is no more the case that the participation of military recruiters in law school job fairs impairs faculty expression about gay equality than it is that the requirement of paying taxes impairs expression about the philosophical belief in anarchism.Footnote ⁵²

If the expansive rule of Dale applied, in full force, to institutions and regulations such as these, then there would truly be nothing left of the limits that Jaycees and its progeny imposed. Any “expressive association”—which, in essence, could include almost any organization that does not pursue commercial profit as its primary activity—would have the authority to resist any form of regulation that it claimed would interfere with its ability to express its purported message.

The resulting rule would have placed in serious jeopardy the very antidiscrimination principles that the law professors sought to promote in their challenge. Under Jaycees, it was already well established that laws affecting the ability of organizations to control their membership might sometimes infringe upon expressive rights in violation of the First Amendment. Until Dale, that proposition was carefully limited by the requirement of a robust factual showing and a constitutional balancing test. In the Dale case, the Court relieved the Boy Scouts of those important limitations, but it still left a good deal of room for arguing that the expansive rights it had recognized were limited to the idiosyncratic context of that particular case. Imagine, however, if the Court had granted the Solomon plaintiffs their wish and accorded all “expressive associations” the licentious deference that it gave to the Boy Scouts. What impact would such a ruling have had upon equality values?

To recap, the Solomon plaintiffs argued that an expressive association has the right to resist any form of state or federal regulation that is inconsistent with its values, undermines its credibility in communicating a message about its values to the outside world, or forces it to take actions that are inconsistent with its desire to teach by doing and thereby exemplify its values. The plaintiffs further argued that such claimants need offer no factual proof of the centrality of the “values” in question to their broader expressive mission, nor of the interference that they claim with their credibility in the public sphere, nor of the extent to which the regulation interferes with their ability to exemplify their values by acting upon them; rather, claimants could demand that courts defer to their assertions on all these matters. Consider how these arguments might be used in other contexts:

• ʼn Title IX of the federal Education Amendments of 1972 has been the primary vehicle by which women have gained broader access to sports opportunities in the United States. Broadly speaking, the law requires universities that accept federal funds to make roughly equal facilities and resources available to their female and male students in their sports programs. Under the position urged by the Solomon plaintiffs, a university could invoke the First Amendment to resist this requirement, simply by asserting that it values more traditional forms of activity by women and wishes to encourage its students to pursue activities that reflect more traditional gender roles. Title IX would obviously undermine the ability of the university to communicate with credibility about the traditional roles of women as much as, if not more than, the Solomon plaintiffs claimed that the presence of military recruiters interfered with their message about inclusiveness. Title IX would obviously interfere with the ability of such an institution to exemplify its values concerning traditional gender roles by structuring extracurricular programs to reflect those roles, just as the Solomon Amendment interferes with the law schools' ability to exemplify antidiscrimination values. If the Solomon plaintiffs had prevailed, it appears that Title IX could have been resisted by any university willing to claim a different worldview.Footnote ⁵³

• ʼn An increasing number of states provide some form of protection to gay men and lesbians against discrimination in employment. Under the proposed rule in the Solomon litigation, however, any expressive association—including huge, multi-billion-dollar organizations like elite private universities—could resist the enforcement of those laws simply by asserting a contrary worldview. If a university were willing to say that it “values” traditional ideas of sexual morality under which homosexuality is unacceptable, then, under the rule proposed by the Solomon plaintiffs, the university could claim a First Amendment right to fire gay or lesbian faculty members, or any other employee. For that matter, such an institution could exclude and expel gay and lesbian students, state law notwithstanding. After all, if the institution's values held homosexuality to be categorically unacceptable, it would surely interfere with their credibility in communicating that message, to the same degree claimed by the Solomon plaintiffs, if they were forced to allow gay people to teach, work, and study as members of their community. Similarly, if the university cannot maintain a putatively gay-free environment, how can it “walk the walk” and exemplify its antigay values?

This same set of arguments could be deployed as easily under the Americans with Disabilities Act, or even under laws outlawing racial discrimination. The type of discrimination involved might affect a court's assessment of the state's interest in enforcing its laws. But all antidiscrimination laws would be subject to this form of First Amendment scrutiny, and—as we suggested in deliberately alarmist terms above—perhaps all such laws would be subject to a mandatory constitutional exemption for any organization willing to embrace discriminatory values as a litigation position.Footnote ⁵⁴ The Dale decision seemingly opened the door for this catastrophic reconfiguration of the constitutional landscape.Footnote ⁵⁵ That result is one that should be resisted, not embraced.

Indeed, the Supreme Court avoided these dangers in reversing the Third Circuit in Rumsfeld v. FAIR (2006), rejecting the law professors' claims and resolving the case very narrowly. “The Solomon Amendment,” Chief Justice John Roberts wrote for a unanimous Court, “neither limits what law schools may say nor requires them to say anything,”Footnote ⁵⁶ bringing the case outside the ambit of both expressive association and compelled speech doctrines. For the most part, the Chief Justice distinguished Dale by ignoring it. He did not even cite the decision until he took up the forced association claim, which he rejected because “the Solomon Amendment does not force a law school ‘to accept members it does not desire’”Footnote ⁵⁷—perhaps limiting Dale (and the Jaycees case as well?) to actual interference with membership. Roberts did not even deign to discuss the idea that compliance with an unwelcome law imposed symbolic behavior that would compromise a speaker's credibility or constitute compelled speech—one of the central themes of Dale. When he addressed the compelled speech cases, he simply distinguished them with the assertion that, in those cases, the speaker's own message was directly affected because it was forced to accommodate speech.Footnote ⁵⁸ Expressive conduct, the Chief Justice held, is not compelled speech if it is not inherently expressive, as marching in a parade or burning a flag would be.Footnote ⁵⁹

Thus, at the close of the Solomon litigation, the law of expressive association remains in flux. The Court did not expand the Dale decision in the dramatic manner that the law professors had sought, but neither did it impose clear and explicit limitations on Dale. Indeed, the one explicit gesture of limitation contained in Rumsfeld v. FAIR—the Court's suggestion that interference with membership lies at the heart of the Dale doctrine—appears to keep the door open for the litany of consequences regarding the enforcement of equality values explored in the scenarios above. While antidiscrimination laws are apparently not in imminent danger of a fundamental restructuring, their fate under the Dale doctrine remains unclear.

B. Equality and speech paradigms in expressive association analysis

The radical nature of the Dale decision, and of the effort of the law professors in the Solomon litigation to expand that ruling, was not confined to the decision's impact upon the mechanics of expressive association doctrine. The Dale opinion also effectuated a shift in how we conceptualize the involvement of the state in the administration of constitutional claims. That shift moved the boundary between equality and speech paradigms in expressive association analysis. As with the purely doctrinal ramifications of Dale, this conceptual revision was both discontinuous with what came before and unsustainable going forward.

An important structural feature of the Court's constitutional equality jurisprudence is its substantive rejection of certain factual or legislative conclusions about different groups. In other words, the Court has found that the equal protection clause of the Fourteenth Amendment and its Fifth Amendment correlate simply “take off the table” certain factual or legislative conclusions. In the case of laws that classify on the basis of race, for example, the Court has categorically rejected the conclusion that non-White people are inherently inferior in their intellectual capacities to Caucasians. With respect to gender discrimination, the Court has categorically rejected the conclusion that women have an inherent predisposition for certain roles in society or the workplace, or that women have “delicate sensibilities” that must be protected from full participation in public life. It does not matter if the legislature reaches these prohibited conclusions “in good faith,” nor even if there is empirical evidence to support them in particular contexts. Even so, these conclusions are “off the table,” categorically unavailable as a basis for regulation.

This feature of equal protection jurisprudence is independent of, and in addition to, the classic definition of “heightened” or “strict” scrutiny, which focuses upon state interests, narrow tailoring, and least restrictive means of regulation. Thus, even if a legislature has a compelling reason for adopting a race or gender classification and tailors its law narrowly to effectuate that purpose, its regulation is still invalid if the classification rests upon one of these substantively impermissible factual conclusions about a protected group, regardless of the empirical support for the conclusion.

An important structural feature of the Court's free speech jurisprudence, in contrast, is its near-absolute deference to, and protection of, the opinions of private speakers, even when the state believes that it has good reason for disagreeing with those opinions. In other words, the Court has categorically prohibited the state from restricting speech that is otherwise protected simply because the state disagrees with the opinions, conclusions, or premises of that speech. This is even true—indeed, especially so—in the case of speech that rests on factual premises that the state itself rejects. Thus, it is a particular point of pride for the Court that it gives undiminished protection to “unpopular” speech like that of the Ku Klux Klan, even though that speech is often founded upon the very conclusions—about inherent White gentile supremacy, in the case of the KKK—that the Court has rendered unavailable when the state seeks to craft its own regulations.

The expressive association cases have always operated at the interface of these two opposing jurisprudential forces. In part, such claims are about speech and the creation of meaning. In the paradigm expressive association case, a group of speakers, operating as an association, claims that the content and credibility of their speech is being compromised by intrusive state regulations, usually in the form of laws that forbid discrimination in membership or hiring. The group offers an account of its distinctive message and its preferred mode of expression in communicating that message, an account that places the identity of its speakers and representatives at center stage. In this respect, an expressive association argument makes powerful claims upon the presumption of inviolability that has surrounded the speaker's prerogative to select the mode and vernacular of his chosen message since early in the modern free speech era.Footnote ⁶⁰

But expressive association claims are also partly about equality values—about groups and the popular perception of their status in society. The particular form of intrusion at issue in an expressive association case is not a direct interference with the association's choice of words and arguments. Rather, such cases involve indirect interference. An expressive association claim generally asserts that the conditions created by the forced inclusion of a group of individuals whom the claimant would prefer to exclude (or any other challenged law) make it difficult or impossible for the association to convey its message with the same meaning, efficacy, and credibility as it could in the absence of state regulation.

The plaintiff in such a case calls upon the court to accept the speaker's own assessment of the social meaning that will attach to the inclusion of the disputed group. He argues for a particular account of the social status of a group in the public mind. In this respect, an expressive association claim appears to inscribe itself within the continuing constitutional discussion about the assumptions that it is and is not permissible for institutions of the state to make about the social roles that different groups occupy. An expressive association claim, in others words, seeks to measure the impact of membership and admission (“equality” issues) upon the content and meaning of a message (“speech” issues) in light of the belief system that the association believes to be held by the audience of private individuals that it is trying to reach.

The Supreme Court offered an account of that impact in its ruling in the Jaycees case. In this respect, the significance of Jaycees extends well beyond its restatement of the purely doctrinal elements of the law of expressive association for second-generation claims. The case also offers the clearest articulation of the relationship between speech values and equality values, and of the boundary between courts as detached protectors of private preferences, on one side, and as engaged participants in the elevation of private prejudices to legal proscriptions, on the other.

Recall that Jaycees involved the desire of the U.S. Jaycees to exclude women as full voting members from their organization and to keep them as only partial participants. The Jaycees claimed that they wished to communicate a distinctively “male” message and that the admission of women as fully enfranchised members would change the nature of their message. They based that claim upon their own set of views about two distinct but related matters: their beliefs about the attitudes that women generally exhibit, and their assumptions about the manner in which female speakers generally are perceived by an audience. In analyzing this speech claim, the Court was forced to determine how to assess the premises and conclusions underlying the Jaycees' perception of their own message—premises and conclusions that would be forbidden to the state if it sought to use them as the basis of its own regulations. Were such beliefs purely a part of the Jaycees' definition of their message, and hence not subject to reexamination by a court? Or were they a component of the Jaycees' legal claim for relief that would require the complicity of a court, rendering them subject to the limitations arising out of the Supreme Court's equality jurisprudence?

The Jaycees Court embraced the latter answer. It found that, while the Jaycees' speech and message were their own, the assumptions that the Jaycees wished the Court to adopt concerning the relationship between identity and communicative impact were subject to independent review and must be scrutinized in light of the substantive limitations bound up in the Court's equality jurisprudence. In reaching this conclusion, the Court drew upon a seemingly out-of-place precedent, but one that, upon reflection, should not be at all surprising: Palmore v. Sidoti (1984).Footnote ⁶¹Palmore is the leading case in the Court's equality jurisprudence for the proposition that courts cannot enforce or confer approval upon private prejudices when entertaining claims for relief or judicial assistance. The relevant passage from Jaycees is worth quoting at length in order to capture the interplay of equality and speech values at this key analytical juncture:

The Jaycees Court makes a clear choice here in defining the juridical category within which expressive association claims will operate. The stage of analysis that examines the relationship between membership and communicative impact in such a claim is a component of “legal decisionmaking” and hence is the province of the court, not the private speaker. It is therefore subject to the substantive limitations that equality principles impose upon governmental action. Under Jaycees, an identifiable, tangible interference with a group's ability to communicate its message is necessary in order to make out an expressive association claim. Reliance on stereotyped assumptions about the attitudes possessed by a group, or the way in which that group will be perceived, is impermissible not merely because such stereotypes may be flawed as a factual matter but also because they involve the court in an impermissible mode of decision-making.

This feature of the Jaycees doctrine bears a deep structural relationship to the varied formulations of the state action doctrine. The administration of legal rules within a constitutional framework always raises questions about the degree of intimacy with which the state can become involved in enforcing private actions that would be forbidden to the state itself—a dilemma that is most notably exemplified in the American constitutional tradition by Shelley v. Kraemer (1948),Footnote ⁶³ where the Court found racially restrictive covenants in contracts for the sale of real estate to be constitutionally unenforceable. As Professor Louis Henkin wrote in his classic treatment of that case:

Professor Henkin is speaking here of the enforcement of private acts of discrimination by facially neutral rules, which can sometimes involve the state too intimately in the perpetuation of inequality. But the same dilemma is posed by the enforcement of private discriminatory attitudes within the administration of facially neutral constitutional doctrines. In both circumstances, the state is asked to become a participant in the endorsement, validation, or vigorous enforcement of actions or views that derogate from its larger constitutional commitments.Footnote ⁶⁵ When the Supreme Court ruled in Palmore v. Sidoti that it would not give weight to private racial prejudices in the administration of a family law system, it was carrying forward a constitutional policy that it had already articulated in its more traditional state action cases. Similarly, when the Jaycees Court incorporated the Palmore ruling into the element of expressive association analysis that requires plaintiffs to make a factual showing of the interference that they claim with their speech activities, and forbade them from relying upon broad stereotypes or prejudicial private attitudes for that purpose, it was making a consistent statement of constitutional policy. In both contexts, the Court has forbidden the state from directly endorsing, validating, or giving vigorous enforcement to private attitudes that derogate from important constitutional values.

The Dale Court significantly disrupted this consistent statement of constitutional policy. In embracing its posture of almost complete deference in the analysis of expressive association claims, the majority in Dale shifted the examination of the relationship between state regulation and communicative impact to the province of the individual speaker. It made that analysis a “private” speech matter rather than a question of legal decision-making constrained by equality values. In so doing, the majority authorized courts to endorse, validate, and give vigorous enforcement to private discriminatory attitudes in a manner that it had previously found to be forbidden to the institutions of the state.

In this respect, Dale cannot be rehabilitated by observing that the particular context in which the claim arose—an entity that operates primarily on a local scale, engages in quintessentially noncommercial activities, and so forth—might serve as a doctrinal basis for distinguishing the holding in future cases. Dale effectuated a conceptual shift, and an important one, in the manner in which such claims will be administered in every context. Following Dale, private prejudice and offensive stereotypes appear to be a component of the “deference” that courts must give “to an association's view of what would impair its expression.”Footnote ⁶⁶ That license on the part of courts to validate private prejudice constitutes an alteration in constitutional policy that is potentially bound up with the doctrine of state action in every context.

The plaintiffs in the Solomon litigation sought to extend this pernicious component of Dale as well, entrenching it as part of the broader restatement of expressive association doctrine that they read that case to effectuate. Without qualification or caveat, FAIR embraced the breathtaking account of “Dale deference” contained in the opinion of the Third Circuit and urged that it be applied to every case in which an institution claims that its value system is being burdened by state regulation. Such an amplification of Dale would have resulted in immense practical and normative damage to equality values.

In rejecting that effort, Rumsfeld v. FAIR might be understood to have limited the doctrinal consequences of Dale's paradigm shift to cases where the claimed interference with an association's expression results from an interference with its control over membership. (Recall that Chief Justice Roberts explained his rejection of the plaintiffs' “Dale deference” argument by pointing out that the Solomon Amendment did not compel any law school “to accept members it does not desire.”)Footnote ⁶⁷ This is small comfort, however, since judicial deference to private prejudice or stereotype is likely to be most damaging in the context of membership disputes, where it is precisely the social status of disfavored groups that is at issue. The pernicious influence of Dale survives any gesture of limitation that one might read into Rumsfeld v. FAIR, inviting courts into a much more active and intimate partnership with the private prejudices of expressive association claimants than Jaycees had permitted.