The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [17]
Note that if the Court had had a different view of what choice meant, the case might have come out the other way. Justice Felix Frankfurter, one of the more scholarly justices of the last century, wrote in a dissent that no one was forcing the child to attend public school. If the school wanted to make the privilege of coming to school conditional on his saying the pledge, that should be permitted. The child could always go to a private school instead. In other words, Frankfurter was urging the Court to adopt the reasoning of Justice Holmes in the ax-in-the-head case: the kids were making their choice when they came to school, like Lamson was making his choice when he showed up to work.
The Court has been tempted by Frankfurter’s view in some other cases. If the government gives you benefits, some cases seem to say, the government can condition those benefits on your giving up certain free speech rights, since no one is forcing you to accept the benefits. I was involved in a case a few years ago that raised this issue. Congress passed a law requiring universities, as a condition of receiving federal funds, to allow military recruiters on campus. A number of law schools around the country objected on the basis that the military refused to sign a pledge (which all other employers were required to sign) that they would not discriminate against students on the basis of race, sex, disability, religion, or sexual orientation. Because it discriminated against gays and lesbians under the “Don’t ask, don’t tell” policy (now repealed), the military refused to sign the pledge, and the law schools wanted to restrict their recruiting on campus. The schools sued, using an organization I helped create called the Forum for Academic and Institutional Rights (FAIR) as the plaintiff. We argued that the universities had a free speech right to exclude the discriminatory recruiters, even if they were part of the government. We also argued that it made no difference that the requirement to allow recruiters on campus came not as a direct command but as a condition of funding—a threat of a funding cutoff was coercive, too. Over several years, we fought the case all the way to the Supreme Court.
In the oral argument at the Supreme Court, the question of whether conditioning the funds amounted to compelled speech was front and center. Our attorney argued that cutting off millions of dollars to a university amounted to a punishment for exercising its speech rights. Chief Justice John Roberts was not convinced, saying that the statute “doesn’t insist that you do anything. It says that, ‘If you want our money, you have to let our recruiters on campus.’”
The Supreme Court eventually decided against us, but it sidestepped the question of whether the threat of a funding cutoff amounted to compulsion. It decided the case on different grounds, saying that the statute requiring universities to allow recruiters on campus was not about speech but behavior. This was a dubious distinction, and the Court still lacks a clear rule about when the government can condition government benefits on the recipients’ giving up speech rights. The question of choice is still alive.
The law of sex. Over the past few years, several female schoolteachers have been sentenced to jail for as long as thirty years for having sex with their underage male students. The definition of statutory rape varies across states, but in most states having sex with a child under a certain age (usually fourteen or sixteen) is always illegal, even if the other person is a teenager too. That’s the age of consent. Most states also define the crime according to the age difference between the parties. If the definition is met, it’s statutory rape even if both parties consented. The thought is that when a person is young or when there is enough of an age difference, the consent of the younger party does not count. That is why these teachers went to jail and are labeled sex offenders.
Nevertheless, many people think that statutory rape laws should not apply in such