The Beef Debate Continued
on May 26, 2005 at 11:28 am
Greg Garre of Hogan and Hartson – counsel to the private petitioners – enters the debate.
Thanks to SCOTUSblog for hosting this (high protein) food fight. Our government has been speaking out for centuries — sometimes, no doubt, to more desirable ends than others. Now the Supreme Court has resolved that the First Amendment does not prevent the government from requiring citizens, or even certain targeted groups of citizens, from paying for its speech. In the Johanns case, that principle led the Court to uphold a successful and widely popular marketing program for beef — just as the summer grilling season is about to kick off and a week after the Court eased restrictions on the flow of wine. You can’t knock the Court’s timing.
Or (and of course here I must disagree with Erik) its reasoning. Although the Court followed a somewhat tortuous path to get to Johanns in the context of its commodity promotion cases (Wileman Brothers and United Foods), Johanns fits comfortably within the Court’s First Amendment precedents.
The Court’s “compelled speech†cases (e.g., Barnette and Wooley) involved situations where the government compelled private individuals to utter its message or bear it on their person or property. Under the beef checkoff program, no one has been forced to stand and pledge allegiance to beef, or to drive around with a “Beef. It’s What’s for Dinner†license plate. Rather, those who sell cattle must pay a small assessment — a dollar per head of cattle — to pay for the government’s efforts to promote beef through an entity created by Congress. Cattlemen remain free to say whatever they wish about the product they choose to sell, pro or con. The government has not sought to limit, control, or silence their own speech in any way. So the “Livestock Marketing Association†is still free to denounce the government’s pro-beef ads, though at the oral argument several of the Justices seemed to have a difficult time understanding why it would want to do so.
Likewise, this case is different than the Court’s “compelled subsidy†cases (e.g., Keller and Abood). In those cases, the Court held that the First Amendment prevented a labor union and a state bar association from compelling members to subsidize political messages with which objectors disagreed. Critically, however, the speech at issue in those cases was private speech and not government speech. Some may find the compelled funding of government speech as objectionable as the compelled funding of private speech, but the government could not speak if it could not require citizens to pay for its speech, and the government could not function without speaking. Even Erik recognizes the “necessity for some forms of government speech.†Fortunately, the Supreme Court has resisted the temptation of adopting a “First Amendment†analysis that regulates (some might say censors) what the government can and cannot say, or fund.
Nor is there any evidence that the First Amendment was designed to limit the government’s own speech, including “public propaganda†like Buy War Bonds!, Support the Troops!, or even Have A T-Bone Tonight! And — as Johanns establishes — it does not prevent the government from funding its speech through general tax revenues or even targeted assessments like taxes on the sale of commodities, which, as Justice Thomas noted in his concurrence, have been around since the founding, even though they have been abhorred by some almost as long (remember the Whiskey Rebellion?).
It is true, as the Johanns dissenters pointed out and opponents of the government speech doctrine often trot out, that Jefferson proclaimed that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.†But Jefferson’s outcry was specifically addressed to the colonies’ practice of imposing taxes to support the church. The framers saw fit to address that problem in the Establishment Clause of the Constitution, not the Speech Clause. Note the irony, too, of invoking Jefferson — one of the nation’s greatest proponents of agricultural products and an agrarian society — in seeking to kill a government program that was enacted to save the ranching way of life following a long-term depression in the beef industry in the 1970s and 1980s.
The public forum cases are also far afield. The beef checkoff program does not open any sort of “forum†for speech. Congress has not agreed to fund private speech or different viewpoints about beef. Congress itself set the message (all beef is good); it created a special administrative entity to propagate that message; and it made that entity (and all advertisements paid for with checkoff funds) subject to the control of the Secretary of Agriculture. And where the government itself is speaking, the Court has already held that the rule against viewpoint discrimination does not apply. If it did, the government could never take a position on an issue and speak its mind. Some might prefer a muzzle, especially on some issues. But, as Justice Scalia explained in his Finley concurrence, “it is the very business of government to favor and disfavor points of view on (in modern times, at least) innumerable subjects — which is the main reason we have decided to elect those who run the government, rather than save money by making their posts hereditary.â€
One of the more interesting aspects of the decision involves the Court’s resolution of the plaintiff’s “attribution†claim. The Court squarely rejected the requirement — suggested by the dissent — “that government speech funded by a targeted assessment must identify government as the speaker.†(How extraordinary would it have been if the Supreme Court had told the Congress and the Executive how to speak: “First you must clearly introduce yourself, and then…†It sounds like a finishing school lesson.) The Court then went on to explain that “the correct focus is not on whether the ads’ audience realizes the government is speaking, but on the compelled assessment’s purported interference with [the plaintiff’s] First Amendment rights.†To show a violation of the First Amendment under that framework, the taxpayer must establish that a viewer would identify the speech as the plaintiff’s own speech. That will be an extremely difficult showing to make.
As the dissent observed, “the government-speech doctrine is relatively new.†After Johanns, it is surely here to stay. Looking back at the lines of First Amendment case law that led to the result in Johanns, it is perhaps easy in hindsight — and with the refreshing clarity of Justice Scalia’s reasoning — to see how the Court got there. But I’ll end by agreeing with Erik that it was nonetheless a big doctrinal step for the Court to take, and those looking for examples of the major doctrinal developments of the Rehnquist Court can find a nice example here.
