Patrick has suggested that the Porch needs a good legal commentator. I won’t vouch for the “good” part, but as it seems I’m the lone Doctor of Laws on this here Porch, I’ll shoot. I am going to try something largely inadvisable and possibly impossible, which is to explain the Court’s speech related First Amendment* jurisprudence in accessible layman’s terms. Of first importance to understanding the CLS v Martinez decision is to understand the difference between a forum and a group, and the characteristics of each.
A forum is simply a place, whether physical or metaphorical, in which people can gather to exchange ideas. Forums exist both by nature and by contrivance. Where forums occur “naturally” (i.e., not by specific design), the State is prohibited by the FA from limiting access to the forum or the speech that can occur in the forum unless the restriction is in furtherance of a compelling state interest and is accomplished by the least restrictive means possible. However, there are also contrived forums which the State is permitted to create utilizing public resources or spaces. Such forums can be limited in furtherance of a specific goal (for example, art appreciation) so long as the limitation is both reasonable and is viewpoint neutral. In other words, it is much easier for the State to restrict access to a limited public forum contrived for a specific purpose than to restrict speech in wider “naturally” occurring forums. A group, on the other hand, is a free association of people come together for any specific purpose. Groups can generally restrict access and speech any way they choose with a few exceptions not relevant to this case.
Groups and forums vindicate and express different but equally valued social goods that lie at the heart of America’s particular expression of a free society. Groups vindicate the good of free association of persons to pursue whatever agenda they mutually desire. Forums vindicate the good of free and open exchange of ideas among and between divergent interests. Generally speaking, groups are exclusive as to viewpoint while forums are inclusive as to viewpoint. As such, groups are functionally substantive in character while forums are functionally procedural in character. In other words, within the framework of American jurisprudence, the underlying “rules” defining a group arise from the structure inherent in a particular set of substantive claims while the underlying structure of a forum is guided by procedural “gatekeeping” rules only. (Consider the widest possible forum in American life, the electoral franchise. It has no underlying substantive structure and is instead wholly created and defined by a few procedural gatekeeping mechanisms—citizenship and age primarily.)
Things are made complicated because oftentimes a particular space or entity will have characteristics of both a group and of a forum. ** (For example, is the State itself a group or a forum?) Courts must therefore weigh particular characteristics against each other whenever there arises a conflict of values between free association and open exchange of ideas.
In CLS v. Martinez, the issue boiled down to whether or not Hastings Law School would be permitted to restrict access to its limited public forum (the student group program) to only those groups who accepted “all-comers”.*** Of immediate importance is the question: Is accepting all-comers as a structural component of the student group program procedural in nature or is it substantive. If it is procedural, then the student group program bears the marks of a limited forum and is permissible. If this element is structurally substantive, on the other hand, it begins to appear that Hastings is actually sponsoring a group (or a group of groups in this case) dedicated to a particular idea which is impermissible. Another way of stating the same question is to ask, “Is the procedural policy mandating viewpoint neutrality itself viewpoint neutral?” Most interesting about this, however, is that while the fundamental nature of the Hastings student group program was uncertain (forum or group) in the Court’s consideration, so were the fundamental natures of the student groups themselves. This is so because the all-comers policy directly called into question the nature of the groups. If a group must accept all comers, it begins to look a great deal more like a forum than a group, as one of the fundamental purposes of a group according to our FA and free association jurisprudence is exclusion.**** The majority reasoned that the all-comers policy was viewpoint neutral and thereby a permissible restriction on a limited public forum. On the one hand, this decision is easy to understand because on the surface it is a policy that appears to impact every group equally. What the majority brushes off is the fact that this policy hits all groups equally (i.e., viewpoint neutral) because it is radically transformative of all groups into forums. Here we see the vigorous lament by Alito’s dissent, echoed by Deneen, that the decision amounts to a funeral dirge for the very category “group” (which Deneen extends to a claim that this is merely the natural outworking of the internal logic of liberal enlightenment which only recognizes as political and social actors the individual and the state—a view I share).
There is much more that could and will be said about this decision, but I want to make just two points that I haven’t seen made yet.
First is the staggering fact that possibly for the first time the Court has permitted an arm of the State to incorporate portions of the bill of rights against private actors. One of the largest ruptures in federalism came with the incorporation of the bill of rights against the states. Now, however, a monumental jump has been made as the FA’s proscription of viewpoint exclusion has been foisted upon the CLS. Once again, one can understand how this could happen if the internal logic and structure of our system insists on pure egalitarian application of principles across a playing field composed solely of individuals and the state, and ultimately a complete blurring of the distinction even between individuals and the state. If the federal government cannot restrict based on viewpoint, why should state governments be able to? And now, if the state cannot, why should individuals be allowed to?
Second, and maybe even more interesting to those who are more fascinated by the function of power in society than they are by the function of law, is the treatment the Court gave to the notion that the all-comers policy would destroy the very ground of existence of groups. The Court did not treat this argument in the abstract way I have treated it above, but rather looked at it through the practical notion of “rogue” individuals who will “sabotage” and effect “hostile takeovers” of certain groups, i.e., the practical destruction of the fundamental purpose of a group through the nitty-gritty wielding of power. It is fascinating that the majority barely rouses itself to a shrug-of-the-shoulders in response to this concern saying that it is “more hypothetical than real.” This reveals something stunning and vastly important, in my view, about the most basic mindset of the majority (and by extension of much of the ruling class), which is that the majority is of the opinion that what really matters in the social and political push and pull of daily life are ideas as opposed to power. This naïve conceit is shared equally by liberals and conservatives of a certain intellectual bent. And in my view, it is a dangerous luxury, one we can almost certainly no longer afford. Very briefly, this is because the structure of our constitutional government was crafted in direct response to the knowledge that power is what matters. We have become victims of the success of that structure, as it contained and diffused power so subtly, with such mastery as to be almost magical, that we have slowly convinced ourselves that the real movement in society and political structure is the movement of ideas. Given this starting point, the Court’s decision makes perfect sense as it gives absolute priority to the free roaming of ideas across the savanna of the American social landscape with nary a backwards glance at the lion of raw power crouching in the grass. It is a dangerous invitation to the violent and unpredictable eruption of unrestrained power wielded by strong against weak and writ large on our society.
* While CLS presented both a religious FA claim and a speech FA claim, the Court’s majority performed some questionable maneuvering and dismissed the religion claim on procedural grounds, thus only reaching the speech related claims.
** One possibly fruitful avenue of criticism of FA jurisprudence that I believe the Front Porch could and should develop (arising from our situation at the nexus between Augustine and Wendell Berry) is to argue that our jurisprudence has no category for the kinds of “groups” both Augustine and Berry champion. These are not groups formed by the Roman concept of “agreement on the right” (which Augustine roundly condemned) but are groups formed and defined by the Berrian notion of “the membership” or as Augustine had it, “loved things held in common.” Such groups are less free associations than they are un-free associations created by the un-chosen bonds of place, birth, and loves and loyalties. Because our jurisprudence is not supple enough to recognize these social spaces (which a Porcher would argue are more fundamental and necessary to society than free associations) as groups and formulate appropriate rules for dealing with them, they must be squeezed into one of the two recognized categories, and most often are considered (if they are considered at all) as some kind of a forum because they do in fact share many characteristics with a forum. But this is a thread of thought that must be developed another time.
*** It is abundantly clear from the dissent that the majority fictionalized the facts on which they based their ruling. So as a practical matter, the Court was egregiously unjust to the actual litigants of the case. However, for purposes of the broader jurisprudential questions, the fictional facts recited by the majority are just as good as any other set of facts and I will assume they are true for the purposes of explaining and critiquing the decision.
**** Justice Kennedy’s concurring opinion makes it expressly clear that the majority viewed CLS as a forum rather than as a group. Notice below how Kennedy staggers and weaves back and forth across the line dividing group from forum.
“Law students come from many backgrounds and have but three years to meet each other and develop their skills. They do so by participating in a community that teaches them how to create arguments in a convincing, rational, and respectful manner and to express doubt and disagreement in a professional way. A law school furthers these objectives by allowing broad diversity in registered student organizations. But these objectives may be better achieved if students can act cooperatively to learn from and teach each other through interactions in social and intellectual contexts. A vibrant dialogue is not possible if students wall themselves off from opposing points of view. The school’s objectives thus might not be well served if, as a condition to membership or participation in a group, students were required to avow particular personal beliefs or to disclose private, off-campus behavior. Students whose views are in the minority at the school would likely fare worse in that regime. Indeed, were those sorts of requirements to become prevalent, it might undermine the principle that in a university community—and in a law school community specifically—speech is deemed persuasive based on its substance, not the identity of the speaker. The era of loyalty oaths is behind us. A school quite properly may conclude that allowing an oath or belief-affirming requirement, or an outside conduct requirement, could be divisive for student relations and inconsistent with the basic concept that a view’s validity should be tested through free and open discussion. The school’s policy therefore represents a permissible effort to preserve the value of its forum.”