FOX News host Bill O'Reilly misrepresented a November 29 court ruling striking down a federal law denying federal funding to colleges and universities that ban military recruiters from campus. O'Reilly falsely claimed that the ruling “punish[ed] the military for its 'don't ask, don't tell' policy on homosexuals” and insisted, “the feds have a perfect right to withhold funding from any forum that doesn't obey the law.” In fact, the ruling did not address the propriety of “don't ask, don't tell,” and there is no law against banning military recruiters from college campuses. Rather, the U.S. Court of Appeals for the Third Circuit ruled that denying federal funds to schools that bar military recruiters infringes on these schools' First Amendment right to express opposition to “don't ask, don't tell.”

On the December 1 edition of FOX News' The O'Reilly Factor, O'Reilly explained: “There's a whole bunch of legal mumbo-jumbo involved [in the judicial opinion], but the bottom line is that the judges overrode Congress and decided to punish the military for its 'don't ask, don't tell' policy on homosexuals.” He added: “The 'don't ask, don't tell' policy is not unconstitutional. So any bias is perceived, not provable. And the feds have a perfect right to withhold any funding from any forum that doesn't obey the law.”

In fact, the Third Circuit in Rumsfeld v. FAIR did not “punish the military” for anything, and the constitutionality of “don't ask don't tell” is irrelevant to the court's decision. The court ruled that colleges and universities have a right to protest “don't ask, don't tell” by banning military recruiters, and that the law withholding funding from those schools -- known as the Solomon Amendment for its sponsor, former Representative Gerald Solomon (R-NY) -- is unconstitutional because it is tantamount to coercing schools to endorse a policy that they oppose. Indeed, the First Amendment guarantees the right to protest policies even if those policies are constitutional. The court explained: "[W]e conclude that the Solomon Amendment violates the First Amendment by impeding the law schools' rights of expressive association and by compelling them to assist in the expressive act of recruiting." (The ruling bears on funding for all colleges and universities, not only law schools.)

In a footnote, the court took pains to point out that it was not ruling on the constitutionality or wisdom of “don't ask, don't tell” or any other military policy: “We note that this is not a case involving military discretion to determine whether internal policies are necessary and appropriate. ... On the contrary, this case involves the military's compelled presence on the campuses of civilian institutions.”

In attacking the ruling, O'Reilly complained that "[t]hese activist judges have negated that law, thumbing their noses at Congress and at us." In reporting that Harvard Law School had announced in the wake of the ruling that it would bar recruiters from its campus, O'Reilly declared, “It didn't take long for Harvard Law School to kick the military to the curb.” He then launched a general broadside against unnamed Harvard administrators, accusing them without evidence of being motivated by anti-Americanism and lack of concern about the threat of terrorism:

O'REILLY: As for Harvard, what can I say? I learned a lot [as a student] there, but many administrators live in the clouds. Theory, not reality, rules -- “The war on terror is a concept,” “The military are brutes,” “The U.S. government is misguided” and on and on and on.

(O'Reilly earned a master's degree from Harvard's Kennedy School of Government in 1996.)

O'Reilly then decried the alleged influence of the “gay lobby”: “This revenge of the gay lobby is hurting the country, which is in the middle of World War III as we all know. Harvard has now sided with the lobby. It's not only a shame, it's dangerous.”