58 Ark. L. Rev. 587 (2005-2006)
In Roberts v. United States Jaycees, the Supreme Court reversed Judge Richard S. Arnold's decision for the Court of Appeals and held - without dissent - that the First Amendment did not shield the Jaycees' men-only membership policy from the non-discrimination requirements of the Minnesota Human Rights Act. The claim in this essay is that Judge Arnold's position and decision in the Jaycees case deserved, and still deserve, more thoughtful and sympathetic treatment. Even some of Judge Arnold's many friends and fans tend to treat as something of an embarrassing lapse or anomalous error his conclusion in that case that, because the First Amendment . . . must[,] on occasion, protect the association of which we disapprove, the Constitution therefore protected the Jaycees' right not to admit women to full membership.
In fact, though, it was precisely Judge Arnold's civil-libertarian commitments prompted him to cast a skeptical eye on the efforts of government to pursue its own or the majority's agenda at the expense of constitutionally protected rights. For Judge Arnold, governments constrained by our First Amendment and by a respect for the freedom of speech are limited to persuasion, not coercion, when trying to influence and shape the beliefs and expression of citizens and associations. In his view, the same democratic values that underlie our constitutional commitment to equal protection of the laws are the basis for a no-less-fundamental commitment to limited government and a free civil society.
Justice Brennan himself - the author of the Court's opinion in Jaycees and Judge Arnold's former boss - recognized that Judge Arnold has consistently vindicated the First Amendment guarantees of freedom of the press and freedom of speech, even in cases in which the protected expression was controversial, distasteful, or hateful. Judge Arnold's ruling and reasoning in Jaycees, it seems to me, is of a piece with this commendable legacy.
Richard W. Garnett,
Jaycees Reconsidered: Judge Richard S. Arnold and the Freedom of Association,
58 Ark. L. Rev. 587 (2005-2006).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/657