RUMSFELD, SECRETARY OF DEFENSE, et al. v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC., et al.

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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 be
cause 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 re
cruiters 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 re
sponded 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
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. 55–70.

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Syllabus
1. The Solomon Amendment should be read the way both the Govern
ment 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 non
military 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 Secre
tary of Defense must compare the military’s “access to campuses” and
“to students” to “the access to campuses and to students that is pro
vided to any other employer.” 10 U. S. C. § 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. 55–58.
2. Under the Solomon Amendment, a university must allow equal ac
cess 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 uncon
stitutional condition on the receipt of federal funds. Pp. 58–70.
(a) As a general matter, the Solomon Amendment regulates con
duct, 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 assist
ance 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 conduct. Compelling a
law school that sends e-mails for other recruiters to send one for a mili
tary 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 unconstitution
ally requires law schools to accommodate the military’s message by in

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cluding 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 ac
commodate. See, e. g., Hurley v. Irish-American Gay, Lesbian and Bi
sexual Group of Boston, Inc., 515 U. S. 557, 566. Here, however, the
schools are not speaking when they host interviews and recruiting re
ceptions. They facilitate recruiting to assist their students in obtaining
jobs. Thus, a law school’s recruiting services lack the expressive qual
ity of, for example, the parade in Hurley. Nothing about recruiting
suggests that law schools agree with any speech by recruiters, and noth
ing in the Solomon Amendment restricts what they may say about the
military’s policies.
Third, 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 protec
tion 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 expres
sive conduct, it would be constitutional under O’Brien. Pp. 58–68.
(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 associ
ation 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 “as
sociate” 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 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 member
ship 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 dis
approval of the military’s message; nothing about the statute affects
the composition of the group by making membership less desirable.
Pp. 68–70.
390 F. 3d 219, reversed and remanded.

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Syllabus
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.
Solicitor General Clement argued the cause for petition
ers. With him on the brief were Assistant Attorney Gen
eral Keisler, Deputy Solicitor General Kneedler, Deputy
Assistant Attorney General Katsas, Irving L. Gornstein,
and Douglas N. Letter.
E. Joshua Rosenkranz argued the cause for respondents.
With him on the brief were Sharon E. Frase and Warrington
S. Parker III.*
*Briefs of amici curiae urging reversal were filed for the State of Texas
et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor
General, Barry R. McBee, First Assistant Attorney General, Edward D.
Burbach, Deputy Attorney General, and Joel L. Thollander and Adam W.
Aston, Assistant Solicitors General, and by the Attorneys General for
their respective States as follows: Troy King of Alabama, John W. Suthers
of Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida,
Steve Carter of Indiana, Phill Kline of Kansas, Michael A. Cox of Michi
gan, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and
Darrell V. McGraw, Jr., of West Virginia; for the American Civil Rights
Union by Peter Ferrara; for the American Legion by Robert P. Parker
and Philip B. Onderdonk, Jr.; for the Boy Scouts of America by George
A. Davidson, Carla A. Kerr, Scott H. Christensen, and David K. Park;
for the Center for Individual Rights et al. by Gerald Walpin; for the Chris
tian Legal Society et al. by Gregory S. Baylor and Steven H. Aden; for
the Claremont Institute Center for Constitutional Jurisprudence by John
C. Eastman and Edwin Meese III; for the Eagle Forum Education & Legal
Defense Fund by Andrew L. Schlafly; for the Judge Advocates Association
by Gregory M. Huckabee and Brett D. Barkey; for Law Professors et al.
by Andrew G. McBride, William S. Consovoy, Daniel Polsby, and Joseph
Zengerle; for the National Legal Foundation by Barry C. Hodge; for
Charles S. Abbot et al. by Martin S. Kaufman, Joe R. Reeder, Philip R.
Sellinger, and John P. Einwechter; and for Congressman Richard Pombo
et al. by William Perry Pendley and Joseph F. Becker.
Briefs of amici curiae urging affirmance were filed for the American
Association of University Professors by Kathleen M. Sullivan, Donna R.

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Opinion of the Court
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, Con
gress responded by enacting the Solomon Amendment. See
10 U. S. C. § 983 (2000 ed. and Supp. IV). 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 dis
agreed 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.
Euben, Ann D. Springer, and David M. Rabban; for the American Civil
Liberties Union et al. by Kenneth Y. Choe, Steven R. Shapiro, Matthew A.
Coles, and James D. Esseks; for the Association of American Law Schools
by Paul M. Smith, William M. Hohengarten, and Daniel Mach; for Bay
Area Lawyers for Individual Freedom et al. by Beth S. Brinkmann, Seth
M. Galanter, and Ruth N. Borenstein; for the Cato Institute by Gregory
S. Coleman; for Columbia University et al. by Seth P. Waxman, Randolph
D. Moss, James J. Mingle, Ada Meloy, and Wendy S. White; for NALP
(the National Association for Law Placement) et al. by Sam Heldman and
Hilary E. Ball; for the National Lawyers Guild by Zachary Wolfe; for the
National Lesbian and Gay Law Association et al. by Jonathan L. Hafetz
and Lawrence S. Lustberg; for the Servicemembers Legal Defense Net
work by Linda T. Coberly, Tyler M. Paetkau, Sharra E. Greer, Kathi S.
Westcott, and Gene C. Schaerr; for the Student/Faculty Alliance for Mili
tary Equality by Carmine D. Boccuzzi, Jr.; for William Alford et al. by
Walter Dellinger and Pamela Harris; for Robert A. Burt et al. by Paul
M. Dodyk and David N. Rosen; and for 56 Columbia Law School Faculty
Members by Jonathan D. Schiller and David A. Barrett.
John H. Findley and Harold E. Johnson filed a brief for the Pacific
Legal Foundation as amicus curiae.

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Opinion of the Court
I
Respondent Forum for Academic and Institutional Rights,
Inc. (FAIR), is an association of law schools and law faculties.
App. 5. Its declared mission is “to promote academic free
dom, support educational institutions in opposing discrimi
nation and vindicate the rights of institutions of higher edu
cation.” 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 institu
tions 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 en
forcement 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 the DOD’s inter
1 Under this policy, a person generally may not serve in the Armed
Forces if he has engaged in homosexual acts, stated that he is a homosex
ual, or married a person of the same sex. Respondents do not challenge
that policy in this litigation.
2 The 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 stand
ing 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 plain
tiffs 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.

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pretation of this provision particularly objectionable. Al
though the statute required only “entry to campuses,” the
Government—after the terrorist attacks on September 11,
2001—adopted an informal policy of “ ‘requir[ing] universi
ties 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 nondis
crimination 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 in
terview at the law schools, if other recruiters did so.
FAIR argued that this forced inclusion and equal treat
ment of military recruiters violated the law schools’ First
Amendment freedoms of speech and association. According
to FAIR, the Solomon Amendment was unconstitutional be
cause 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 en
tirely 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, 391 U. S. 367 (1968). 291
F. Supp. 2d, at 311–314.

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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 re
cruiters access to students that is at least equal in quality
and scope to the access provided other potential employ
ers.’ ” Id., at 321. In response to the District Court’s con
cerns, Congress codified the DOD’s informal policy. See
H. R. Rep. No. 108–443, pt. 1, p. 6 (2004) (discussing the Dis
trict Court’s decision in this case and stating that the
amended statute “would address the court’s opinion and cod
ify the equal access standard”). The Solomon Amendment
now prevents an institution from receiving certain federal
funding if it prohibits military recruiters “from gaining ac
cess 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. § 983(b) (2000 ed., Supp. IV).3
FAIR appealed the District Court’s judgment, arguing
that the recently amended Solomon Amendment was uncon
stitutional 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 Cir
cuit, 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 229–243. Unlike
3 The federal funds covered by the Solomon Amendment are specified at
10 U. S. C. § 983(d)(1) (2000 ed., Supp. IV) 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 Depart
ment of Energy. Funds provided for student financial assistance are not
covered. § 983(d)(2). The loss of funding applies not only to the particu
lar school denying access but universitywide. § 983(b).

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the District Court, the Court of Appeals did not think that
the O’Brien analysis applied because the Solomon Amend
ment, in its view, regulated speech and not simply expressive
conduct. 390 F. 3d, at 243–244. The Third Circuit none
theless 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 (opinion of Aldisert, J.).
We granted certiorari. 544 U. S. 1017 (2005).
II
The Solomon Amendment denies federal funding to an in
stitution 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 man
ner 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. § 983(b) (2000 ed., Supp. IV). The
statute provides an exception for an institution with “a
longstanding policy of pacifism based on historical religious
affiliation.” § 983(c)(2) (2000 ed.). 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 stat
ute. See Brief for William Alford et al. as Amici Curiae

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10–18; Brief for 56 Columbia Law School Faculty 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 ques
tion is not before the Court because it was neither included
in the questions presented nor raised by FAIR. Reply Brief
for Petitioners 20, n. 4. But our review may, in our dis
cretion, 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 in
cludes 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 Solo
mon 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 em
ployer” secured its access. Under amici’s reading, a mili
tary recruiter has the same “access” to campuses and stu
dents as, say, a law firm when the law firm is permitted on
campus to interview students and the military is not. We

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do not think that the military recruiter has received equal
“access” in this situation—regardless of whether the dis
parate 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 com
pares 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 re
cruiters 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 interpre
tation is necessary to give effect to the Solomon Amend
ment’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) (2000
ed.). 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 inter
pretation, 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 non
military recruiter would also be denied access. That is
rather clearly not what Congress had in mind in codify
ing the DOD policy. We refuse to interpret the Solomon

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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 em
ployers 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 sweep
ing,” 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 determin
ing its constitutionality; as we recognized in Rostker, “judi
cial 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 indi
rectly does not reduce the deference given to Congress in
the area of military affairs. Congress’ choice to promote its
goal by creating a funding condition deserves at least as def

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erential treatment as if Congress had imposed a mandate
on universities.
Congress’ power to regulate military recruiting under the
Solomon Amendment is arguably greater because universi
ties 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 re
cently 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 Sol
omon 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 condi
tion placed on university funding goes beyond the “reason
able” choice offered in Grove City and becomes an uncon
stitutional condition. It is clear that a funding condition
cannot be unconstitutional if it could be constitutionally im

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posed 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 unconstitu
tional 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 fed
eral funds. See Tr. of Oral Arg. 25 (Solicitor General ac
knowledging 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 mil
itary recruiters—not what they may or may not say.
Nevertheless, the Third Circuit concluded that the Solo
mon 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 Gov
ernment’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 the Solomon Amendment reg
ulated speech, it held in the alternative that, if the statute
regulates conduct, this conduct is expressive and regulating

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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 prohib
its 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 school
children 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 Hamp
shire motorists to display the state motto—“Live Free or
Die”—on their license plates.
The Solomon Amendment does not require any similar ex
pression 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, 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 Sol
4 The 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]iti
zens may challenge compelled support of private speech, but have no First
Amendment right not to fund government speech.” Id., at 562. The mil
itary recruiters’ speech is clearly Government speech.

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omon Amendment. As FAIR points out, these compelled
statements of fact (“The U. S. Army recruiter will meet in
terested students in Room 123 at 11 a.m.”), like compelled
statements of opinion, are subject to First Amendment scru
tiny. 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 ille
gal merely because the conduct was in part initiated, evi
denced, 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 pro
hibit 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 em
ployer’s speech rather than conduct. See R. A. V. v. St.
Paul, 505 U. S. 377, 389 (1992) (“[W]ords can in some circum
stances 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 military re
cruiter 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 pro
tected in Barnette and Wooley to suggest that it is.

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2
Our compelled-speech cases are not limited to the situation
in which an individual must personally speak the govern
ment’s message. We have also in a number of instances lim
ited 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 Bos
ton, Inc., 515 U. S. 557, 566 (1995) (state law cannot require
a parade to include a group whose message the parade’s or
ganizer does not wish to send); Pacific Gas & Elec. Co. v.
Public Util. Comm’n of Cal., 475 U. S. 1, 20–21 (1986) (plu
rality 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 deter
mine the content of their newspapers). Relying on these
precedents, the Third Circuit concluded that the Solomon
Amendment unconstitutionally compels law schools to ac
commodate 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 speak
er’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 inher
ent expressiveness of marching to make a point explains our
cases involving protest marches”). We concluded that be
cause “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

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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’ free
dom 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 enve
lope. 475 U. S., at 8–9. Thus, when the state agency or
dered 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 re
ceptions. Unlike a parade organizer’s choice of parade con
tingents, a law school’s decision to allow recruiters on
campus is not inherently expressive. Law schools facilitate
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 suffi
ciently interfere with any message of the school.
The schools respond that if they treat military and non
military recruiters alike in order to comply with the Sol
omon Amendment, they could be viewed as sending the

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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 likeli
hood that the views of those engaging in the expressive ac
tivities 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 govern
mentally 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 be
tween speech a school sponsors and speech the school per
mits because legally required to do so, pursuant to an equal
access policy. Board of Ed. of Westside Communi ty
Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (plu
rality 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.
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 Amend
ment’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

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an idea.” Ibid. Instead, we have extended First Amend
ment protection only to conduct that is inherently expres
sive. 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 adop
tion of the Solomon Amendment’s equal access requirement,
law schools “expressed” their disagreement with the military
by treating military recruiters differently from other recruit
ers. But these actions were expressive only because the
law schools accompanied their conduct with speech explain
ing it. For example, the point of requiring military inter
views 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 recruit
ers 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 accompa
nies it. The fact that such explanatory speech is 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 sup
ports such a result.

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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 mili
tary has ample resources to recruit through alternative
means,” suggesting “loan repayment programs” and “tele
vision 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 Amend
ment 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 Court of
Appeals’ proposed alternative methods of recruiting are be
side the point. The issue is not whether other means of rais
ing 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 bur
densome 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

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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 ex
tends beyond the right to speak. We have recognized a
First Amendment right to associate for the purpose of speak
ing, which we have termed a “right of expressive associa
tion.” See, e. g., Boy Scouts of America v. Dale, 530 U. S.
640, 644 (2000). The reason we have extended First Amend
ment 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 Jay
cees, 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 dis
crimination 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. Rely
ing heavily on our decision in Dale, the Court of Appeals
agreed. 390 F. 3d, at 230–235.
In Dale, we held that the Boy Scouts’ freedom of expres
sive association was violated by New Jersey’s public accom
modations 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 Scouts’ First Amendment rights
were violated. 530 U. S., at 655–659.

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The Solomon Amendment, however, does not similarly af
fect 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 dis
tinction 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 (quot
ing Roberts, supra, at 623). The law schools say that allow
ing military recruiters equal access impairs their own ex
pression by requiring them to associate with the recruiters,
but just as saying conduct is undertaken for expressive pur
poses cannot make it symbolic speech, see supra, at 66, 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 asso
ciation protects more than just a group’s membership deci
sions. For example, we have held laws unconstitutional that
require disclosure of membership lists for groups seeking
anonymity, Brown v. Socialist Workers ’74 Campaign
Comm. (Ohio), 459 U. S. 87, 101–102 (1982), or impose penal
ties or withhold benefits based on membership in a disfa
vored group, Healy v. James, 408 U. S. 169, 180–184 (1972).
Although these laws did not directly interfere with an orga
nization’s composition, they made group membership less at
tractive, 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

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to associate to voice their disapproval of the military’s mes
sage; 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 af
fects expression, the law schools’ effort to cast themselves
as just like the schoolchildren in Barnette, the parade orga
nizers in Hurley, and the Boy Scouts in Dale plainly over
states 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 Ap
peals 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 fur
ther proceedings consistent with this opinion.
It is so ordered.
Justice Alito took no part in the consideration or deci
sion of this case.