author: Justice Stevens

text:
    ILLINOIS TOOL WORKS INC. et al. v. INDEPENDENT INK, INC.
    No. 04-1329.
    Argued November 29, 2005
    Decided March 1, 2006

      Andrew J. Pincus argued the cause for petitioners. With him on the briefs were Richard J. Favretto, Christopher J. Kelly, Nickolai G. Levin, and Stewart S. Hudnut.

      Deputy Solicitor General Hungar argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Acting Assistant Attorney General Barnett, Jeffrey P. Minear, Catherine G. O’Sullivan, Steven J. Mintz, Frances Marshall, John M. Whealan, Cynthia C. Lynch, and Thomas Krause.

      Kathleen M. Sullivan argued the cause for respondent. With her on the briefs were Daniel H. Bromberg, Margret M. Caruso, Elizabeth B. Wydra, and Edward F. O’Connor.

      Briefs of amici curiae urging reversal were filed for the American Bar Association by Robert J. Grey, Jr., Richard J. Wallis, and Kevin D. McDonald; for the Houston Intellectual Property Law Association by Kenneth E. Kuffner; for the Intellectual Property Law Association of Chicago by Edward D. Manzo, Bradford R Lyerla, and Glen P. Belvis; for the Intellectual Property Owners Association by Gary M. Hoffman, Kenneth W. Brothers, and Douglas K. Norman; for the Motion Picture Association of America, Inc., et al. by Daniel G. Swanson, Julian W. Poon, Daniel E. Robbins, and Victor S. Perlman; for the New York Intellectual Property Law Association by David F. Ryan; for the Patent, Trademark & Copyright Section of the Bar Association of the District of Columbia by David W. Long, Blair Elizabeth Taylor, and Lynn E. Eccleston; for Pfizer Inc. by Stephen A Stack, Jr., George G. Gordon, Rebecca P. Dick, and Kent S. Bernard; for Verizon Communications by Richard G. Taranto, Aaron M. Panner, and John Thorne; and for the Washington Legal Foundation by William C. MacLeod, Daniel J. Popeo, and David Price.

      Briefs of amici curiae urging affirmance were filed for the District of Columbia et al. by Robert J. Spagnoletti, Attorney General of the District of Columbia, Edward E. Schwab, Deputy Attorney General, Don A. Resnikoff, Senior Assistant Attorney General, and Anika Cooper, Assistant Attorney General, by Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Deputy Attorney General, Tom Greene, Chief Assistant Attorney General, Kathleen Foote, Senior Assistant Attorney General, and Ann Marie Marciarille, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Charles J. Crist, Jr., of Florida, Thomas J. Miller of Iowa, Charles C. Foti, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Jim Petro of Ohio, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, Darrell V. McGraw, Jr., of West Virginia, and Patrick J. Crank of Wyoming; for AARP et al. by Barbara Jones, Bruce Vignery, and Michael Schuster;
        for the American Antitrust Institute et al. by Jonathan Rubin; for the International Imaging Technology Council et al. by Patricia Judge; for the National Association of Theatre Owners, Inc., et al. by John T. Mitchell; for Barry Nalebuff et al. by Alan I. Horowitz; and for F. M. Scherer by Parker C. Folse III and Justin A. Nelson.

        Patrick J. Coyne, Kenneth M. Frankel, and William C. Rooklidge filed a brief of amicus curiae for the American Intellectual Property Law Association.

   Justice Stevens

delivered the opinion of the Court.

In Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U. S. 2 (1984), we repeated the well-settled proposition that “if the Government has granted the seller a patent or similar monopoly over a product, it is fair to presume that the inability to buy the product elsewhere gives the seller market power.” Id., at 16. This presumption of market power, applicable in the antitrust context when a seller conditions its sale of a patented product (the “tying” product) on the purchase of a second product (the “tied” product), has its foundation in the judicially created patent misuse doctrine. See United States v. Loew’s Inc., 371 U. S. 38, 46 (1962). In 1988, Congress substantially undermined that foundation, amending the Patent Act to eliminate the market power presumption in patent misuse eases. See 102 Stat. 4676, codified at 35 U. S. C. § 271(d). The question presented to us today is whether the presumption of market power in a patented product should survive as a matter of antitrust law despite its demise in patent law. We conclude that the mere fact that a tying product is patented does not support such a presumption.

I

Petitioners, Trident, Inc., and its parent, Illinois Tool Works Inc., manufacture and market printing systems that include three relevant components: (1) a patented piezoelectric impulse ink jet printhead; (2) a patented ink container, consisting of a bottle and valved cap, which attaches to the printhead; and (3) specially designed, but unpatented, ink. Petitioners sell their systems to original equipment manufacturers (OEMs) who are licensed to incorporate the print-heads and containers into printers that are in turn sold to companies for use in printing barcodes on cartons and packaging materials. The OEMs agree that they will purchase their ink exclusively from petitioners, and that neither they nor their customers will refill the patented containers with ink of any kind.

Respondent, Independent Ink, Inc., has developed an ink with the same chemical composition as the ink sold by petitioners. After an infringement action brought by Trident against Independent was dismissed for lack of personal jurisdiction, Independent filed suit against Trident seeking a judgment of noninfringement and invalidity of Trident’s patents. In an amended complaint, it alleged that petitioners are engaged in illegal tying and monopolization in violation of §§ 1 and 2 of the Sherman Act. 15 U. S. C. §§ 1, 2.

After discovery, the District Court granted petitioners’ motion for summary judgment on the Sherman Act claims. Independent Ink, Inc. v. Trident, Inc., 210 F. Supp. 2d 1155, 1177 (CD Cal. 2002). It rejected respondent’s submission that petitioners “necessarily have market power in the market for the tying product as a matter of law solely by virtue of the patent on their printhead system, thereby rendering [the] tying arrangements per se violations of the antitrust laws.” Id., at 1159. Finding that respondent had submitted no affirmative evidence defining the relevant market or establishing petitioners’ power within it, the court concluded that respondent could not prevail on either antitrust claim. Id., at 1167, 1173, 1177. The parties settled their other claims, and respondent appealed.

After a careful review of the “long history of Supreme Court consideration of the legality of tying arrangements,” 396 F. 3d 1342, 1346 (2005), the Court of Appeals for the Federal Circuit reversed the District Court’s decision as to respondent’s § 1 claim, id., at 1354. Placing special reliance on our decisions in International Salt Co. v. United States, 332 U. S. 392 (1947), and Loew’s, 371 U. S. 38, as well as our Jefferson Parish dictum, and after taking note of the academic criticism of those cases, it concluded that the “fundamental error” in petitioners’ submission was its disregard of “the duty of a court of appeals to follow the precedents of the Supreme Court until the Court itself chooses to expressly overrule them.” 396 F. 3d, at 1351. We granted certiorari to undertake a fresh examination of the history of both the judicial and legislative appraisals of tying arrangements. 545 U. S. 1127 (2005). Our review is informed by extensive scholarly comment and a change in position by the administrative agencies charged with enforcement of the antitrust laws.

II

American courts first encountered tying arrangements in the course of patent infringement litigation. See, e. g., Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co., 77 F. 288 (CA6 1896). Such a case came before this Court in Henry v. A. B. Dick Co., 224 U. S. 1 (1912), in which, as in the case we decide today, unpatented ink was the product that was “tied” to the use of a patented product through the use of a licensing agreement. Without commenting on the tying arrangement, the Court held that use of a competitor’s ink in violation of a condition of the agreement — that the rotary mimeograph “ ‘may be used only with the stencil, paper, ink and other supplies made by A. B. Dick Co.’” — constituted infringement of the patent on the machine. Id., at 25-26. Chief Justice White dissented, explaining his disagreement with the Court’s approval of a practice that he regarded as an “attempt to increase the scope of the monopoly granted by a patent... which tend[s] to increase monopoly and to burden the public in the exercise of their common rights.” Id., at 70. Two years later, Congress endorsed Chief Justice White’s disapproval of tying arrangements, enacting § 3 of the Clayton Act. See 38 Stat. 731 (applying to “patented or unpatented” products); see also Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 517-518 (1917) (explaining that, in light of . §3 of the Clayton Act, A. B. Dick “must be regarded as overruled”). And in this Court’s subsequent cases reviewing the legality of tying arrangements we, too, embraced Chief Justice White’s disapproval of those arrangements. See, e. g., Standard Oil Co. of Cal. v. United States, 337 U. S. 293, 305-306 (1949); Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661, 664-665 (1944).

In the years since A. B. Dick, four different rules of law have supported challenges to tying arrangements. They have been condemned as improper extensions of the patent monopoly under the patent misuse doctrine, as unfair methods of competition under § 5 of the Federal Trade Commission Act, 15 U. S. C. §45, as contracts tending to create a monopoly under § 3 of the Clayton Act, 15 U. S. C. § 14, and as contracts in restraint of trade under § 1 of the Sherman Act. In all of those instances, the justification for the challenge rested on either an assumption or a showing that the defendant’s position of power in the market for the tying product was being used to restrain competition in the market for the tied product. As we explained in Jefferson Parish, 466 U. S., at 12, “[ojur cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller’s exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms.”

Over the years, however, this Court’s strong disapproval of tying arrangements has substantially diminished. Rather than relying on assumptions, in its more recent opinions the Court has required a showing of market power in the tying product. Our early opinions consistently assumed that “[t]ying arrangements serve hardly any purpose beyond the suppression of competition.” Standard Oil Co., 337 U. S., at 305-306. In 1962, in Loew’s, 371 U. S., at 47-48, the Court relied on this assumption despite evidence of significant competition in the market for the tying product. And as recently as 1969, Justice Black, writing for the majority, relied on the assumption as support for the proposition “that, at least when certain prerequisites are met, arrangements of this kind are illegal in and of themselves, and no specific showing of unreasonable competitive effect is required.” Fortner Enterprises, Inc. v. United States Steel Corp., 394 U. S. 495, 498-499 (Fortner I). Explaining the Court’s decision to allow the suit to proceed to trial, he stated that “decisions rejecting the need for proof of truly dominant power over the tying product have all been based on a recognition that because tying arrangements generally serve no legitimate business purpose that cannot be achieved in some less restrictive way, the presence of any appreciable restraint on competition provides a sufficient reason for invalidating the tie.” Id., at 503.

Reflecting a changing view of tying arrangements, four Justices dissented in Fortner I, arguing that the challenged “tie” — the extension of a $2 million line of credit on condition that the borrower purchase prefabricated houses from the defendant — might well have served a legitimate purpose. Id., at 510 (opinion of White, J.); id., at 520 (opinion of Fortas, J.). In his opinion, Justice White noted that promotional tie-ins may provide “uniquely advantageous deals” to purchasers. Id., at 519. And Justice Fortas concluded that the arrangement was best characterized as “a sale of a single product with the incidental provision of financing.” Id., at 522.

The dissenters’ view that tying arrangements may well be procompetitive ultimately prevailed; indeed, it did so in the very same lawsuit. After the Court remanded the suit in Fortner I, a bench trial resulted in judgment for the plaintiff, and the case eventually, made its way back to this Court. Upon return, we unanimously held that the plaintiff’s failure of proof on the issue of market power was fatal to its case— the plaintiff had proved “nothing more than a willingness to provide cheap financing in order to sell expensive houses.” United States Steel Corp. v. Fortner Enterprises, Inc., 429 U. S. 610, 622 (1977) (Fortner II).

The assumption that “[t]ying arrangements serve hardly any purpose beyond the suppression of competition,” rejected in Fortner II, has not been endorsed in any opinion since. Instead, it was again rejected just seven years later in Jefferson Parish, where, as in Fortner II, we unanimously reversed a Court of Appeals judgment holding that an alleged tying arrangement constituted a per se violation of § 1 of the Sherman Act. 466 U. S., at 5. Like the product at issue in the Fortner cases, the tying product in Jefferson Parish — hospital services — was unpatented, and our holding again rested on the conclusion that the plaintiff had failed to prove sufficient power in the tying product market to restrain competition in the market for the tied product — services of anesthesiologists. 466 U. S., at 28-29.

In rejecting the application of a per se rule that all tying arrangements constitute antitrust violations, we explained:

“[W]e have condemned tying arrangements when the seller has some special ability — usually called ‘market power’ — to force a purchaser to do something that he would not do in a competitive market. .. .
“Per se condemnation — condemnation without inquiry into actual market conditions — is only appropriate if the existence of forcing is probable. Thus, application of the per se rule focuses on the probability of anticompetitive consequences....
“For example, if the Government has granted the seller a patent or similar monopoly over a product, it is fair to presume that the inability to buy the product elsewhere gives the seller market power. United States v. Loew’s Inc., 371 U. S., at 45-47. Any effort to enlarge the scope of the patent monopoly by using the market power it confers to restrain competition in the market for a second product will undermine competition on the merits in that second market. Thus, the sale or lease of a patented item on condition that the buyer make all his purchases of a separate tied product from the patentee is unlawful.” Id., at 13-16 (footnote omitted).

Notably, nothing in our opinion suggested a rebuttable presumption of market power applicable to tying arrangements involving a patent on the tying good. See infra, at 44; cf. 396 F. 3d, at 1352. Instead, it described the rule that a contract to sell a patented product on condition that the purchaser buy unpatented goods exclusively from the patentee is a per se violation of § 1 of the Sherman Act.

Justice O’Connor wrote separately in Jefferson Parish, concurring in the judgment on the ground that the case did not involve a true tying arrangement because, in her view, surgical services and anesthesia were not separate products. 466 U. S., at 43. In her opinion, she questioned not only the propriety of treating any tying arrangement as a per se violation of the Sherman Act, id., at 35, but also the validity of the presumption that a patent always gives the patentee significant market power, observing that the presumption was actually a product of our patent misuse cases rather than our antitrust jurisprudence, id., at 37-38, n. 7. It is that presumption, a vestige of the Court’s historical distrust of tying arrangements, that we address squarely today.

Ill

Justice O’Connor was, of course, correct in her assertion that the presumption that a patent confers market power arose outside the antitrust context as part of the patent misuse doctrine. That doctrine had its origins in Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502 (1917), which found no support in the patent laws for the proposition that a patentee may “prescribe by notice attached to a patented machine the conditions of its .use and the supplies which must be used, in the operation of it, under pain of infringement of the patent,” id., at 509. Although Motion Picture Patents Co. simply narrowed the scope of possible patent infringement claims, it formed the basis for the Court’s subsequent decisions creating a patent misuse defense to infringement claims when a patentee uses its patent “as the effective means of restraining competition with its sale of an unpatented article.” Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488, 490 (1942); see also, e. g., Carbice Corp. of America v. American Patents Development Corp., 283 U. S. 27, 31 (1931).

Without any analysis of actual market conditions, these patent misuse decisions assumed that, by tying the purchase of unpatented goods to the sale of the patented good, the patentee was “restraining competition,” Morton Salt, 314 U. S., at 490, or “securing] a limited monopoly of an unpatented material,” Mercoid, 320 U. S., at 664; see also Carbice, 283 U. S., at 31-32. In other words, these decisions presumed “[t]he requisite economic power” over the tying product such that the patentee could “extend [its] economic control to unpatented products.” Loew’s, 371 U. S., at 45-46.

The presumption that a patent confers market power migrated from patent law to antitrust law in International Salt Co. v. United States, 332 U. S. 392 (1947). In that case, we affirmed a District Court decision holding that leases of patented machines requiring the lessees to use the defendant’s unpatented salt products violated § 1 of the Sherman Act and § 3 of the Clayton Act as a matter of law. Id., at 396. Although the Court’s opinion does not discuss market power or the patent misuse doctrine, it assumes that “[t]he volume of business affected by these contracts cannot be said to be insignificant or insubstantial and the tendency of the arrangement to accomplishment of monopoly seems obvious.” Ibid.

The assumption that tying contracts “ten[d]... to accomplishment of monopoly” can be traced to the Government’s brief in International Salt, which relied heavily on our earlier patent misuse decision in Morton Salt. The Government described Morton Salt as “presenting] a factual situation almost identical with the instant case,” and it asserted that “although the Court in that case did not find it necessary to decide whether the antitrust laws were violated, its language, its reasoning, and its citations indicate that the policy underlying the decision was the same as that of the Sherman Act.” Brief for United States in International Salt Co. v. United States, O. T. 1947, No. 46, p. 19 (United States Brief). Building on its assertion that International Salt was logically indistinguishable from Morton Salt, the Government argued that this Court should place tying arrangements involving patented products in the category of per se violations of the Sherman Act. United States Brief 26-33.

Our opinion in International Salt clearly shows that we accepted the Government’s invitation to import the presumption of market power in a patented product into our antitrust jurisprudence. While we cited Morton Salt only for the narrower proposition that the defendant’s patents did not confer any right to restrain competition in unpatented salt or afford the defendant any immunity from the antitrust laws, International Salt, 332 U. S., at 395-396, given the fact that the defendant was selling its unpatented salt at competitive prices, id., at 396-397, the rule adopted in International Salt necessarily accepted the Government’s submission that the earlier patent misuse cases supported the broader proposition “that this type of restraint is unlawful on its face under the Sherman Act,” United States Brief 12.

Indeed, later in the same Term we cited International Salt for the proposition that the license of “a patented device on condition that unpatented materials be employed in conjunction with the patented device” is an example of a restraint that is “illegal per se.” United States v. Columbia Steel Co., 334 U. S. 495, 522-523, and n. 22 (1948). And in subsequent cases we have repeatedly grounded the presumption of market power over a patented device in International Salt. See, e. g., Loew’s, 371 U. S., at 45-46; Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 608 (1953); Standard Oil Co., 337 U. S., at 304.

IV

Although the patent misuse doctrine and our antitrust jurisprudence became intertwined in International Salt, subsequent events initiated their untwining. This process has ultimately led to today’s reexamination of the presumption of per se illegality of a tying arrangement involving a patented product, the first case since 1947 in which we have granted review to consider the presumption’s continuing validity.

Three years before we decided International Salt, this Court had expanded the scope of the patent misuse doctrine to include not only supplies or materials used by a patented device, but also tying arrangements involving a combination patent and “unpatented material or [a] device [that] is itself an integral part of the structure embodying the patent.” Mercoid, 320 U. S., at 665; see also Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 188-198 (1980) (describing in detail Mercoid and the cases leading up to it). In reaching this conclusion, the Court explained that it could see “no difference in principle” between cases involving elements essential to the inventive character of the patent and elements peripheral to it; both, in the Court’s view, were attempts to “expan[d] the patent beyond the legitimate scope of its monopoly.” Mercoid, 320 U. S., at 665.

Shortly thereafter, Congress codified the patent laws for the first time. See 66 Stat. 792, codified at 35 U. S. C. § 1 et seq. (2000 ed. and Supp. III). At least partly in response to our Mercoid decision, Congress included a provision in its codification that excluded some conduct, such as a tying arrangement involving the sale of a patented product tied to an “essential” or “nonstaple” product that has no use except as part of the patented product or method, from the scope of the patent misuse doctrine. § 271(d); see also Dawson, 448 U. S., at 214. Thus, at the same time that our antitrust jurisprudence continued to rely on the assumption that “tying arrangements generally serve no legitimate business purpose,” Fortner I, 394 U. S., at 503, Congress began chipping away at the assumption in the patent misuse context from whence it came.

It is Congress’ most recent narrowing of the patent misuse defense, however, that is directly relevant to this case. Four years after our decision in Jefferson Parish repeated the patent-equals-market-power presumption, 466 U. S., at 16, Congress amended the Patent Code to eliminate that presumption in the patent misuse context, 102 Stat. 4676. The relevant provision reads:

“(d) No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: ... (5) conditioned the license of any rights to the patent or the sale of the patented product on the acquisition of a license to rights in another patent or purchase of a separate product, unless, in view of the circumstances, the patent owner has market power in the relevant market for the patent or patented product on which the license or sale is conditioned.” 35 U. S. C. § 271(d)(5) (emphasis added).

The italicized clause makes it clear that Congress did not intend the mere existence of a patent to constitute the requisite “market power.” Indeed, fairly read, it provides that without proof that Trident had market power in the relevant market, its conduct at issue in this case was neither “misuse” nor an “illegal extension of the patent right.”

While the 1988 amendment does not expressly refer to the antitrust laws, it certainly invites a reappraisal of the per se rule announced in International Salt. A rule denying a patentee the right to enjoin an infringer is significantly less severe than a rule that makes the conduct at issue a federal crime punishable by up to 10 years in prison. See 15 U. S. C. § 1. It would be absurd to assume that Congress intended to provide that the use of a patent that merited punishment as a felony would not constitute “misuse.” Moreover, given the fact that the patent misuse doctrine provided the basis for the market power presumption, it would be anomalous to preserve the presumption in antitrust after Congress has eliminated its foundation. Cf. 10 P. Areeda, H. Hovenkamp, & E. Elhauge, Antitrust Law ¶ 1737c (2d ed. 2004) (hereinafter Areeda).

After considering the congressional judgment reflected in the 1988 amendment, we conclude that tying arrangements involving patented products should be evaluated under the standards applied in cases like Fortner II and Jefferson Parish rather than under the per se rule applied in Morton Salt and Loew’s. While some such arrangements are still unlawful, such as those that are the product of a true monopoly or a marketwide conspiracy, see, e. g., United States v. Paramount Pictures, Inc., 334 U. S. 131, 145-146 (1948), that conclusion must be supported by proof of power in the relevant market rather than by a mere presumption thereof.

V

Rather than arguing that we should retain the rule of per se illegality, respondent contends that we should endorse a rebuttable presumption that patentees possess market power when they condition the purchase of the patented product on an agreement to buy unpatented goods exclusively from the patentee. Cf. supra, at 37-38. Respondent recognizes that a large number of valid patents have little, if any, commercial significance, but submits that those that are used to impose tying arrangements on unwilling purchasers likely do exert significant market power. Hence, in respondent’s view, the presumption would have no impact on patents of only slight value and would be justified, subject to being rebutted by evidence offered by the patentee, in cases in which the patent has sufficient value to enable the patentee to insist on acceptance of the tie.

Respondent also offers a narrower alternative, suggesting that we differentiate between tying arrangements involving the simultaneous purchase of two products that are arguably two components of a single product — such as the provision of surgical services and anesthesiology in the same operation, Jefferson Parish, 466 U. S., at 43 (O’Connor, J., concurring in judgment), or the licensing of one copyrighted film on condition that the licensee take a package of several films in the same transaction, Loew’s, 371 U. S. 38 — and a tying arrangement involving the purchase of unpatented goods over a period of time, a so-called “requirements tie.” See also Brief for Barry Nalebuff et al. as Amici Curiae. According to respondent, we should recognize a presumption of market power when faced with the latter type of arrangements because they provide a means for charging large volume purchasers a higher royalty for use of the patent than small purchasers must pay, a form of discrimination that “is strong evidence of market power.” Brief for Respondent 27; see generally Jefferson Parish, 466 U. S., at 15, n. 23 (discussing price discrimination of this sort and citing sources).

The opinion that imported the “patent equals market power” presumption into our antitrust jurisprudence, however, provides no support for respondent’s proposed alternative. In International Salt, it was the existence of the patent on the tying product, rather than the use of a requirements tie, that led the Court to presume market power. 332 U. S., at 395 (“The appellant’s patents confer a limited monopoly of the invention they reward”). Moreover, the requirements tie in that case did not involve any price discrimination between large volume and small volume purchasers or evidence of noncompetitive pricing. Instead, the leases at issue provided that if any competitor offered salt, the tied product, at a lower price, “the lessee should be free to buy in the open market, unless appellant would furnish the salt at an equal price.” Id., at 396.

As we have already noted, the vast majority of academic literature recognizes that a patent does not necessarily confer market power. See n. 4, supra. Similarly, while price discrimination may provide evidence of market power, particularly if buttressed by evidence that the patentee has charged an above-market price for the tied package, see, e. g., 10 Areeda ¶ 1769c, it is generally recognized that it also occurs in fully competitive markets, see, e. g., Baumol & Swanson, The New Economy and Ubiquitous Competitive Price Discrimination: Identifying Defensible Criteria of Market Power, 70 Antitrust L. J. 661, 666 (2003); 9 Areeda ¶ 1711; Landes & Posner 374-375. We are not persuaded that the combination of these two factors should give rise to a presumption of market power when neither is sufficient to do so standing alone. Rather, the lesson to be learned from International Salt and the academic commentary is the same: Many tying arrangements, even those involving patents and requirements ties, are fully consistent with a free, competitive market. For this reason, we reject both respondent’s proposed rebuttable presumption and their narrower alternative.

It is no doubt the virtual consensus among economists that has persuaded the enforcement agencies to reject the position that the Government took when it supported the per se rule that the Court adopted in the 1940’s. See supra, at 39. In antitrust guidelines issued jointly by the Department of Justice and the Federal Trade Commission in 1995, the enforcement agencies stated that in the exercise of their prosecutorial discretion they “will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner.” U. S. Dept, of Justice and FTC, Antitrust Guidelines for the Licensing of Intellectual Property §2.2 (Apr. 6, 1995), http://www.usdoj.gov/atr/public/guidelines/ 0558.pdf (as visited Feb. 24, 2006, and available in Clerk of Court’s case file). While that choice is not binding on the Court, it would be unusual for the Judiciary to replace the normal rule of lenity that is applied in criminal cases with a rule of severity for a special category of antitrust cases.

Congress, the antitrust enforcement agencies, and most economists have all reached the conclusion that a patent does not necessarily confer market power upon the patentee. Today, we reach the same conclusion, and therefore hold that, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product.

VI

In this case, respondent reasonably relied on our prior opinions in moving for summary judgment without offering evidence defining the relevant market or proving that petitioners possess power within it. When the case returns to the District Court, respondent should therefore be given a fair opportunity to develop and introduce evidence on that issue, as well as any other issues that are relevant to its remaining §1 claims. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Alito took no part in the consideration or decision of this case.

       Illinois Tool did not acquire Trident until February 19, 1999, approximately six months after this action commenced.

       See, e. g., Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U. S. 2, 9 (1984) (Sherman Act); Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 609 (1953) (Federal Trade Commission Act); International Salt Co. v. United States, 332 U. S. 392, 395-396 (1947) (Clayton Act and Sherman Act); Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488, 494 (1942) (patent misuse); Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 516 (1917) (same).

       While our opinions have made clear that such an invitation is not necessary with respect to cases arising under the Sherman Act, see State Oil Co. v. Khan, 522 U. S. 3, 20 (1997), it is certainly sufficient to warrant reevaluation of our precedent, id., at 21 (“[T]his Court has reconsidered its decisions construing the Sherman Act when the theoretical underpinnings of those decisions are called into serious question”).

       Our imposition of this requirement accords with the vast majority of academic literature on the subject. See, e. g., 10 Areeda ¶ 1737a (“[T]here is no economic basis for inferring any amount of market power from the mere fact that the defendant holds a valid patent”); Burchfiel, Patent Misuse and Antitrust Reform: “Blessed be the Tie?” 4 Harv. J. L. & Tech. 1, 57, and n. 340 (1991) (noting that the market power presumption has been extensively criticized and citing sources); 1 H. Hovenkamp, M. Janis, & M. Lemley, IP and Antitrust § 4.2a (2005 Supp.) (“[CJoverage of one’s product with an intellectual property right does not confer a monopoly”); W. Landes & R. Posner, The Economic Structure of Intellectual Property Law 374 (2003) (hereinafter Landes & Posner).


source: Caselaw Access Project

author: Chief Justice Roberts

license: Public Domain

text:
    RUMSFELD, SECRETARY OF DEFENSE, et al. v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC., et al.
    No. 04-1152.
    Argued December 6, 2005
    Decided March 6, 2006

      Solicitor General Clement argued the cause for petitioners. With him on the brief were Assistant Attorney General 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 Michigan, 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 Christian 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.

        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 Servieemembers Legal Defense Network by Linda I Coberly, Tyler M. Paetkau, Sharra E. Greer, Kathi S. Westcott, and Gene C. Schaerr; for the Student/Faculty Alliance for Military 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.

   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, Congress 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 disagreed 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.

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 freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education.” 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. The Solomon Amendment, however, forces institutions 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 enforcement 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). FAIR considered the DOD’s interpretation of this provision particularly objectionable. Although the statute required only “entry to campuses,” the Government — after the terrorist attacks on September 11, 2001 — adopted an informal policy of “ ‘requiring] universities 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 nondiscrimination 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 interview at the law schools, if other recruiters did so.

FAIR argued that this forced inclusion and equal treatment of military recruiters violated the law schools’ First Amendment freedoms of speech and association. According to FAIR, the Solomon Amendment was unconstitutional because 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 entirely 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.

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 recruiters access to students that is at least equal in quality and scope to the access provided other potential employers.’ ” Id., at 321. In response to the District Court’s concerns, Congress codified the DOD’s informal policy. See H. R. Rep. No. 108-443, pt. 1, p. 6 (2004) (discussing the District Court’s decision in this case and stating that the amended statute “would address the court’s opinion and codify the equal access standard”). The Solomon Amendment now prevents an institution from receiving certain federal funding if it prohibits military recruiters “from gaining access 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).

FAIR appealed the District Court’s judgment, arguing that the recently amended Solomon Amendment was unconstitutional 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 Circuit, 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 the District Court, the Court of Appeals did not think that the O’Brien analysis applied because the Solomon Amendment, in its view, regulated speech and not simply expressive conduct. 390 F. 3d, at 243-244. The Third Circuit nonetheless 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 institution 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 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). 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 statute. See Brief for William Alford et al. as Amici Curiae 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 question 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 discretion, 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 includes 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 ease to consider whether institutions can comply with the Solomon 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 employer” secured its access. Under amici’s reading, a military recruiter has the same “access” to campuses and students as, say, a law firm when the law firm is permitted on campus to interview students and the military is not. We do not think that the military recruiter has received equal “access” in this situation — regardless of whether the disparate 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 compares 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 recruiters 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 interpretation is necessary to give effect to the Solomon Amendment’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 interpretation, 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 nonmilitary recruiter would also be denied access. That is rather clearly not what Congress had in mind in codifying the DOD policy. We refuse to interpret the Solomon 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 employers who violate its nondiscrimination policy. Under the statute, military recruiters must be given the same access as recruiters who comply with the policy.

Ill

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, els. 1, 12-13. Congress’ power in this area “is broad and sweeping,” 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 determining its constitutionality; as we recognized in Rostker, “judicial 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 indirectly 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 deferential treatment as if Congress had imposed a mandate on universities.

Congress’ power to regulate military recruiting under the Solomon Amendment is arguably greater because universities 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 “warranted] 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 recently 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 Solomon 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 condition placed on university funding goes beyond the “reasonable” choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed 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 unconstitutional 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 federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging 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 military recruiters — not what they may or may not say.

Nevertheless, the Third Circuit concluded that the Solomon 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 Government’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 regulated speech, it held in the alternative that, if the statute regulates conduct, this conduct is expressive and regulating it unconstitutionally infringes law schools’ right to engage in expressive conduct. We consider each issue in turn.

1

Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits 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 schoolchildren 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 Hampshire motorists to display the state motto — “Live Free or Die” — on their license plates.

The Solomon Amendment does not require any similar expression 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 Solomon Amendment. As FAIR points out, these compelled statements of fact (“The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.”), like compelled statements of opinion, are subject to First Amendment scrutiny. 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 illegal merely because the conduct was in part initiated, evidenced, 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 prohibit 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 employer’s speech rather than conduct. See R. A. V. v. St. Paul, 505 U. S. 377, 389 (1992) (“[W]ords can in some circumstances 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 recruiter 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 protected in Barnette and Wooley to suggest that it is.

2

Our compelled-speech cases are not limited to the situation in which an individual must personally speak the government’s message. We have also in a number of instances limited 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 Boston, Inc., 515 U. S. 557, 566 (1995) (state law cannot require a parade to include a group whose message the parade’s organizer does not wish to send); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 20-21 (1986) (plurality 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 determine the content of their newspapers). Relying on these precedents, the Third Circuit concluded that the Solomon Amendment unconstitutionally compels law schools to accommodate 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 speaker’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 inherent expressiveness of marching to make a point explains our cases involving protest marches’’). We concluded that because “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 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’ freedom 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 envelope. 475 U. S., at 8-9. Thus, when the state agency ordered 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 receptions. Unlike a parade organizer’s choice of parade contingents, 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 sufficiently interfere with any message of the school.

The schools respond that if they treat military and nonmilitary recruiters alike in order to comply with the Solomon Amendment, they could be viewed as sending the 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 likelihood that the views of those engaging in the expressive activities 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 between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (plurality 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 Amendment’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 an idea.” Ibid. Instead, we have extended First Amendment protection only to conduct that is inherently expressive. 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 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. But these actions were expressive only because the law schools accompanied their conduct with speech explaining it. For example, the point of requiring military interviews 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 recruiters 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 accompanies 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 supports such a result.

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 military has ample resources to recruit through alternative means,” suggesting “loan repayment programs” and “television 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 Amendment 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 beside the point. The issue is not whether other means of raising 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 burdensome on speech”). That is a judgment for Congress, not the courts. See U. S. Const., Art. I, §8, els. 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 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 extends beyond the right to speak. We have recognized a First Amendment right to associate for the purpose of speaking, which we have termed a “right of expressive association.” See, e. g., Boy Scouts of America v. Dale, 530 U. S. 640, 644 (2000). The reason we have extended First Amendment 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 Jaycees, 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 discrimination 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. Relying 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 expressive association was violated by New Jersey’s public accommodations 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.

The Solomon Amendment, however, does not similarly affect 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 distinction 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 (quoting Roberts, supra, at 623). The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes 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 association protects more than just a group’s membership decisions. 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 penalties or withhold benefits based on membership in a disfavored group, Healy v. James, 408 U. S. 169, 180-184 (1972). Although these laws did not directly interfere with an organization’s composition, they made group membership less attractive, 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 to associate to voice their disapproval of the military’s message; 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 affects expression, the law schools’ effort to cast themselves as just like the schoolchildren in Barnette, the parade organizers in Hurley, and the Boy Scouts in Dale plainly overstates 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 Appeals 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 further proceedings consistent with this opinion.

It is so ordered.

Justice Alito took no part in the consideration or decision of this case.

       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 homosexual, or married a person of the same sex. Respondents do not challenge that policy in this litigation.

       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 assoeiational standing 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 plaintiffs have standing because the presence of one party with standing is sufficient to satisfy Article Ill’s ease-or-eontroversy 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.

       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 Department of Energy. Funds provided for student financial assistance are not covered. § 983(d)(2). The loss of funding applies not only to the particular school denying access but universitywide. § 983(b).

       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 ease, we noted that our previous eompelledsubsidy eases involved subsidizing private speech, and we held that “ [citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech.” Id., at 562. The military recruiters’ speech is clearly Government speech.