Martinez, Viewpoint Neutrality, and the Constitution of “Voice”

Today’s Martinez decision has provoked debate about whether Hastings’ “all comers” policy (if that’s what the school’s policy actually was) was “viewpoint neutral.” Five Justices said yes; four Justices said no. On this blog, Bob Cochran agrees with the four.

For what it’s worth, so do I. But the difficulty and the confusion arise in part, I think, from the fact that the Court has never given a satisfactory explanation of the connection between freedom of association and freedom of speech. What is the relation, exactly, between association and speech? And how do restrictions on the membership policies of associations affect the ability of such associations to express their views?

One picture is basically of a bunch of individual speakers getting together to amplify their speech. You favor grapefruit subsidies, say, and so does Bill, and so does Carly. Each of you can voice your views alone. But it occurs to you that you can spread your message more powerfully if you organize for mutual support. So you form the grapefruit subsidy club to express your views more effectively.

On this picture, a law prohibiting groups from excluding people from membership based on, say, their taste for or against grapefruits may look viewpoint neutral. The law applies to all groups, whether they are for or against or indifferent to grapefruit subsidies.  And the law doesn’t technically prevent anybody or any group from expressing their views. To be sure, people who dislike grapefruit are unlikely to favor subsidies, and if you are compelled to admit these people to your association, the association’s expression may be muted. That impact might support an argument that the law is not viewpoint neutral; in its impact it imposes burdens that mainly work against groups like yours. But the law’s defenders can say with at least a semi-straight face that this burden is incidental, and that the law does not by its terms discriminate on the basis of viewpoint. That’s what five Justices said in Martinez.  The view is wrong, I believe, but not wholly implausible.  (It also probably does not fit the actual facts of the case, as Justice Alito pointed out in dissent.)

There is a different and more perspicuous picture, however– one that comes closer to describing what is really at stake. On this picture, an association is not just a bunch of individuals who want to speak together. Rather, the association itself is a sort of created entity with a voice that is not simply reducible into the aggregated individual voices of its members Tom, Dick, and Harry. That association is constituted by, among other things, its members and membership policies. As Justice O’Connor explained in the Jaycees case, an association’s membership polices help to constitute its “voice.” By the same logic, restrictions on the association’s membership policies regulate and alter the constitution of that “voice.”

Thus, a law that prohibits the formation of associations on the basis of certain kinds of membership policies is not just a rule governing associational conduct; the restriction in effect is a mandate that certain types of “voices” cannot be formed. Or, if the policy is framed as a limitation on participation in some sort of “limited public forum,” then the policy is in reality a mandate that certain types of voices– or of speakers, if you prefer– will not be allowed to participate in that forum. And that sort of mandate, I would submit, is plainly, blatantly “viewpoint discriminatory.”

On this picture, it seems to me, Hastings unquestionably engaged in viewpoint discrimination. The school effectively decreed that the sort of voice, or the sort of speaker, that CLS represented would be not permitted to participate in the various activitites and programs of the school’s “limited public forum.”

To be sure, a law school should not be required to admit every type of speaker to its forum. I would think that the school might permissibly deny the benefits of its forum to, say, advocates of genocide, to give just one example. But it is deeply troubling that among the ample spectrum of views and voices that Hastings welcomes, a traditional Christian voice is the one that the school in fact singled out for exclusion.  And the fact that the school attempted to defend its exclusion by concocting a policy that could in principle exclude other “voices” as well does not negate the conclusion that the school is excluding voices from the community of its forum.  It is even more troubling that a majority of Supreme Court Justices see no problem with that exclusion.