WASHINGTON — For nearly a decade, the Supreme Court has struggled with the First Amendment issues raised by government marketing programs that require producers to pay a fee for promotional messages with which some of the fee-payers disagree.
Yesterday, the high court found a way out of the thicket by deciding, in essence, that the First Amendment is not even involved.
The Court, in a 6-3 ruling called Johanns v. Livestock Marketing Association, upheld the beef industry’s marketing program — with its famous slogan, “Beef: It’s What’s for Dinner” — as a form of government speech that the government can control without First Amendment scrutiny.
By classifying the program as government speech, the Court removed the case from a line of precedents that had prompted it to strike down a similar marketing program — this one for mushrooms — just four years ago.
That line of “compelled speech” cases, including Keller v. State Bar of California and Abood v. Detroit Board of Education, said governments could not force lawyers and teachers to pay fees to bar associations and unions — at least the portion of the fees used to finance political messages with which they disagree. Those rulings were premised on the view that the First Amendment right of free speech includes the right not to speak.
In those cases, the messages or speech at issue were uttered by private entities, not the government itself. And in the mushroom case, United States v. United Foods, the government-private speech distinction was not raised until the last minute and did not affect the Court’s ruling. The 8th U.S. Circuit Court of Appeals invoked the United Foods ruling in striking down the beef program last year.
But in defending the beef-marketing program, the Bush administration took a new tack and aggressively cast it as an example of government speech that dissenting citizens could not choose to withhold their support for. To avoid the chaos that might result if taxpayers selectively withheld their taxes from government programs they disagreed with, the Court has held that its compelled-speech doctrine does not apply when government is doing the speaking.
In yesterday’s ruling the Court expanded on that notion to include government programs that rely, not on general taxpayer funds, but on fees levied against targeted groups that relate to the speech. In this case, cattle ranchers are required to pay $1 per head of cattle for the beef program. Fees from the beef program have amounted to more than $80 million a year and go toward scientific research as well as advertising. The objecting ranchers, who say the promotional messages fail to tout particular types of American beef, say the funding method improperly implies to consumers that they support the message.
Justice Antonin Scalia said the targeted subsidy for the speech did not affect the constitutional analysis. “Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech,” Scalia wrote. “That is no less true when the funding is achieved through targeted assessments devoted exclusively to the program to which the assessed citizens object.”
Scalia also said the final decision about the content of the beef-promoting speech was made by the secretary of agriculture, a politically accountable official. “The message set out in the beef promotions is from beginning to end the message established by the federal government,” wrote Scalia.
Dissenting justices said Scalia’s rationale was flawed, noting that the beef program tended to mask its government sponsorship. The tag line on beef-program commercials and advertisements is, “Funded by America’s Beef Producers.”
Justice David Souter wrote, “No one hearing a commercial for Pepsi or Levi’s thinks Uncle Sam is the man talking behind the curtain. Why would a person reading a beef ad think Uncle Sam was trying to make him eat more steak?” Without accurate identification of the source of the speech, Souter said, the government is not accountable. Joining Souter in dissent were Justices John Paul Stevens and Anthony Kennedy.
D.C. lawyer Thomas Goldstein, one of the lawyers for the dissenting cattle ranchers, said yesterday’s ruling turned the United Foods decision into a “dead letter” and could have broad implications. “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.”
If nothing else, the Johanns decision is likely to resolve, in favor of the government, numerous other challenges to similar government marketing programs.
“There is a lot of litigation going on around the country on programs like this, and it’s been in disarray and on hold waiting for this decision,” said D.C. lawyer Randolph Moss. “This seems like a clean way to resolve most of it.”
Moss represents California agricultural groups and national cotton growers who support government marketing programs. A case involving the promotion program “Pork: The Other White Meat” is already before the high court.
Agriculture Secretary Mike Johanns applauded the decision in a statement yesterday. “This is certainly a win for the many producers who recognize the power of pooled resources. As this administration has always contended, USDA regards such programs, when properly administered, as effective tools for market enhancement.” Johanns replaced Ann Veneman as the appellant in the case when he replaced her as agriculture secretary in January.
Lawyers representing the dissenting ranchers criticized the ruling as a setback for free speech and a victory for corporate interests that can lobby for subsidized promotional programs.
“The First Amendment protects the right to dissent as much as the right to speak,” said Institute for Justice lawyer Steve Simpson in a statement. He filed a brief in the case on behalf of dairy farmers who object to the “Got Milk?” milk-promotion program.
“Unfortunately, the Supreme Court has just made it a lot easier for government to compel support for the ‘party line’ in a particular industry, and drown out any dissent,” Simpson said.