A six-Justice majority of the Supreme Court today upheld federally mandated commodity promotion programs against First Amendment challenge. These programs require producers of various commodities – here, beef ranchers – to contribute to a federal fund principally used for generic advertising. The Court left open the possibility that a particular program could be successfully challenged on First Amendment grounds on the theory that the advertisements for that program attribute a message to a particular group of participants in the program.

Justice Scalia’s opinion for the Court aptly introduces the decision with the observation that it is “the third time in eight years” that the Justices have confronted “whether a federal program that finances generic advertising to promote an agricultural product violates the First Amendment.” The Court first said “no” in Glickman v. Wileman Brothers (the peaches and plums case) then “yes” in United States v. United Foods (the mushrooms case). But neither Glickman nor United Foods confronted the question whether the programs were essentially immune from constitutional scrutiny as “government speech.”

The Court today adopted the government speech rationale, rendering the Glickman and United Foods decisions essentially a dead letter. Five Justices joined the majority opinion. Justice Ginsburg concurred in the judgment to add a sixth vote, adhering to her dissenting vote in United Foods that the programs presented no First Amendment concern. Justice Breyer joined the majority opinion, but separately concurred to express his continued view that United Foods was wrongly decided.

Today’s decision is likely to be extremely significant for First Amendment jurisprudence, as it signals that the government has a free hand not only to communicate its own views without oversight by the courts but also to require financial support for that communication from a discrete segment of the population.

The decision creates an interesting divergence in First Amendment law that may have substantial consequences in the future. The Court has previously held (in cases like Abood and Keller) that the government cannot compel private financial contributions in support of a private message. The contributions, the Court reasoned, were akin to compelled speech. Those rulings provide the doctrinal foundation for the United Foods decision.

Today, the Court held that the same rule does not apply to forced contributions to support governmental messages. The reason for the different rule is not entirely clear, but is apparently that the government can require support through generalized tax revenues, and it makes no difference if the assessment is instead targeted. In most First Amendment contexts, of course, the Court deems it more objectionable – not less – that an individual is being required to support a governmental message.

It is difficult to know what caused the Court in this line of cases to zig-zag from Glickman to United Foods to today’s LMA decision. The members of the United Foods majority who nonetheless voted to uphold the beef program – Rehnquist, Scalia, and Thomas – notably are sympathetic to government speech analysis in the heated abortion context. See Rust v. Sullivan (a decision later recast by the Court as a government speech decision). In addition, those Justices may have decided the case with an eye to the Court’s review next Term of the constitutional challenge to the Solomon Amendment.

[Disclosure: Goldstein & Howe represented the respondents in the case.]