New Feature: The Beef Debate
on May 25, 2005 at 4:51 pm
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.
