Case: 21-51178
Document: 00516474571
Page: 27
Date Filed: 09/16/2022
No. 21-51178
conduct” and was nothing like a “Government-mandated pledge or motto”
as in Barnette and Wooley. Id. at 62. Congress could therefore compel this
“incidental” speech without violating the First Amendment. Ibid.
The Court then held that the Solomon Amendment did not
impermissibly interfere with the schools’ own speech, distinguishing Miami
Herald, PG&E, and Hurley. Id. at 63–65. It acknowledged that those three
cases “limited the government’s ability to force one speaker to host or
accommodate another speaker’s message.” Id. at 63. But it then explained
that these “compelled-speech violation[s] . . . resulted from the fact that the
complaining speaker’s own message was affected by the speech it was forced
to accommodate.” Ibid.; see also id. at 63–64 (explaining how the challenged
laws “interfere[d] with a speaker’s desired message” in Miami Herald,
PG&E, and Hurley). In Rumsfeld, by contrast, “accommodating the
military’s message [did] not affect the law schools’ speech, because the
schools [were] not speaking when they host interviews and recruiting
receptions.” Id. at 64. That was true despite the risk that students might
mistakenly interpret the law schools’ conduct as sending the message that
they see nothing wrong with the military’s policies. Id. at 64–65. In sum, even
though it required law schools to host and accommodate others’ speech, the
Solomon Amendment was constitutional because it “neither limit[ed] what
law schools may say nor require[d] them to say anything.” Id. at 60.
2.
Under these precedents, a speech host must make one of two
showings to mount a First Amendment challenge. It must show that the
challenged law either (a) compels the host to speak or (b) restricts the host’s
own speech. The Platforms cannot make either showing. And (c) the
Platforms’ counterarguments are unpersuasive.
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