New Feature: The Beef Debate
SCOTUSblog is pleased to host a debate on the Court’s recent decision in the beef promotion case, featuring Erik Jaffe (who represented amici in the case) and Gregory Garre (who successfully argued on behalf of petitioner Nebraska Cattlemen et al.). Erik, who argues that the Court got it wrong on government speech, will start the debate:
The Supreme Court’s decision on Monday in Johanns v. LMA endorsing the government speech doctrine as a defense to the facial validity of the Beef Promotion and Research Act was a disappointment, to say the least. While there are many specific deficiencies in Justice Scalia’s opinion, I would like to focus on three particularly troubling failures.
First, the Court continued its careless tendency (previously evidenced only in dicta) of conflating government conduct with government speech. The Court, slip op. at 8, seems to accept the dicta from Southworth reasoning that because the government may tax and spend on various substantive programs it “seems inevitable,” and hence is permissible, for the government to tax and spend “for speech and other expression to advocate and defend its own policies.” But the inevitability of government advocacy in the form of public propaganda (as opposed to debate in Congress and answering questions from the media) certainly is not an inevitable requirement of implementing its other policies, and there is already ample First Amendment doctrine for permitting compelled support for speech that is indeed necessary to implement other permissible non-speech activities – the Abood/Keller line of cases. And as United Foods made clear, compelled support for speech is by no means defensible as necessary to implement other programs where the only object of the program is the speech itself, as was the case for both the mushroom and beef programs. The necessity for some forms of government speech hardly justifies the sweeping doctrine set out by the Court or its application to this case.
Second, the Court, slip op. at 10, distinguishes Keller on the grounds that government control of the message here is substantial while it had little or no control in Keller. While that is a distinction, it is one without a meaningful difference. Indeed, as Justice Scalia himself observed in NEA v. Finley, such increased government involvement actually makes the situation worse, not better. The supposed distinction is further undermined by the whole line of public/private forum cases, where increased government control of the message – otherwise known as viewpoint discrimination – is precisely what creates the First Amendment violation. Public support for speech in a forum is only permissible where the government does not exercise control over such speech and takes a viewpoint neutral approach that lets private parties determine the content of the speech thus supported.
Third, in disposing of concerns based on the targeted nature of the assessment, slip op. at 11-13, Justice Scalia makes the mistake of narrowing the First Amendment issues at stake to simple dignity and autonomy issues as part of the personal right, entirely ignoring the structural values that the First Amendment is designed to protect – keeping the government from manipulating the marketplace of ideas in furtherance of its own views various issues, be they political or economic. Those concerns place government control of speech outside the bounds of the political process precisely because speech is different than conduct. Controlling speech is more insidious than controlling conduct and hence must be more diligently avoided than other government actions that will readily create their own political check. Such concerns indeed lie at the heart of the First Amendment, not merely the Appropriations Clause, as the opinion seems to suggest. The indirect political safeguards cited by Scalia are no more adequate here than they would be in any other form of compelled support for speech, where political officials just as inevitably remain “accountable” for the programs they implement and could change those programs with subsequent legislation.
There is, of course, much more to criticize in the opinion, but the nature of a blog debate councils in favor of brevity and selectivity. If anyone wishes further analysis of why the entire concept of the government speech doctrine is flawed, and should be replaced by uniform application of the Abood/Keller analysis to compelled support for government as well as third party speech, they can find it in the amicus brief I wrote in the case.
Where’s The Beef?:
Overt at SCOTUSBlog, occasional co-blogger Erik Jaffe is debating Hogan & Hartson partner Overt at SCOTUSBlog, occasional co-blogger Erik Jaffe is debating Hogan & Hartson partner
Comment by The Volokh Conspiracy — May 25, 2005 @ 5:24 pm
One need not jettison the Court’s entire government-speech jurisprudence to indict the Court’s opinion. Even if one adheres to the Court’s previous government-speech jurisprudence, the ads created by the Beef Act (or the Pork Act, or the Milk Act, or the Alligator Act) hardly resemble government speech. The Dept. of Agriculture appoints a group of industry representatives who more or less craft the message themselves, and the commercial itself identifies the speaker as the industry group, not the government. Jaffe’s broader disdain for the government-speech doctrine, though intellectually interesting and certainly worthy of a law-review article, is largely beside the point.
Comment by Animal Fan — May 25, 2005 @ 6:15 pm
Actually, Animal Fan has it backwards. Quibbling over how much or how little government involvement or control is required before something becomes government speech is a pointless exercise if one begins with the assumption that government speech is permissible, as the Court generally does. Once “pure” government speech is deemed permissible, it takes precious little imagination to extrapolate that principle out to “almost” government speech where the government farms out the details, or even to the Beef Act, where the government simply pretends to be in charge and the Court will not take the time to investigate and say otherwise. At bottom, it is the loss of the high ground on government speech that makes it almost inevitable that the lack of persuasive distinctions will lead to an expansive application of the doctrine. Rather than merely an intellectual curiosity, a root-and-branch challenge to the government speech doctrine is essential. I just wish it could get a full court hearing and some semblence of a cogent response.
Comment by Erik Jaffe — May 25, 2005 @ 8:33 pm
What do Supreme Court justices know about nutritio
A lot, it turns out. As background, recall from Monday that the majority opinion (.pdf), authored by Justice Antonin Scalia, accepted the federal government’s argument that the Beef Board’s advertising is “government speech,” so it is okay to tax bee…
Comment by U.S. Food Policy — May 25, 2005 @ 10:55 pm
My biggest concern is that the Court did not take seriously the idea that the attribution of the ad to beef advertisers rendered it private speech. Given the latest scandals regarding “fake” government news, I am amazed that the Court was so willing to let the government “hide” its message
Comment by iocaste — May 25, 2005 @ 11:44 pm
As someone taking Geoff Stone’s Freedom of Speech final in the morning, and going over Rust v. Sullivan one last time, I strongly encourage another 5-6 posts on this subject in the next four hours.
Comment by Dan — May 26, 2005 @ 5:41 am
It is worth taking a look at some of the ads, website material, and other information produced with beef checkoff dollars and now deemed official “government speech.” Moreover, according to Justice Scalia, every single word has been reviewed and approved by the USDA. In that case, it may be of interest to the U.S. poultry sector that official USDA “government speech” policy is to encourage U.S. consumers to purchase less poultry products and more beef.
Comment by Martha Noble — May 27, 2005 @ 8:11 pm