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July 15, 2005

Conservative Legal Scholars Demand Federal Power to Override Property Rights

Okay, that's not the headline at the Volohk Conspiracy, but that's the gist of a brief filed by conservative law profs asking the Supreme Court to overturn a decision by the Third Circuit that struck down the Soloman Amendment -- the law that denies federal money to schools that ban military recruiters from the campus.

As I explained a while ago, I support upholding the Soloman Amendment on legal grounds -- even if I oppose it politically -- but, then, I'm very clear that I think property rights should bend to the political demands of society.   It's just encouraging to see conservative scholars seeing that absolute property rights might not be such a wonderful thing.

Now, the Third Circuit framed its whole decision around Free Speech rights of the University, but those free speech rights of the law school only exist because they control the property involved and don't want to associate with the discriminatory views of the military.  But if control of property means that you don't have to associate with views you dislike, that would mean companies could ban Catholics or gays or whoever they didn't like from their property -- which many universities did for years. 

Or even more to the point, it would mean state rules such as in California that malls must allow petitioners access to shopping malls would be unconstitutional, since it would violate the free speech rights of the mall owners not to associate with such political speech.  But as a 1980 Supreme Court decision, Prunyard v. Robbins stated, allowing someone onto your commercial property does not mean you endorse their speech, especially when you are forced to by law, so laws requiring that property owners open their property to alternative speech they may not like is completely legal.

So go rightwing legal scholars on this one.  If it takes national security concerns to reinforce the principle that owning property doesn't give someone plenary control of all speech on that property, that's all to the good in my view.

Posted by Nathan at July 15, 2005 04:14 PM