Forced commercial speech and the government speech doctrine: discerning and reducing the uncertainty following Johanns v. Livestock Marketing Association.
I. INTRODUCTION II. BACKGROUND: THE DEVELOPMENT OF COMMERCIAL SPEECH JURISPRUDENCE A. Origins of Commercial Speech Protection B. Origins of the Unconstitutionality of Compelled Speech C. Supreme Court Compelled Commercial Speech Jurisprudence 1. Glickman v. Wileman Bros. & Elliot 2. United States v. United Foods 3. Johanns v. Livestock Marketing Association III. ANALYSIS: WHERE ARE WE AFTER JOHANNS? A. Distinction of Glickman B. Forced Commercial Speech and Attribution C, Taxation and Forced Commercial Speech IV. RECOMMENDATIONS: ELIMINATING UNCERTAINTY AND LIMITING THE GOVERNMENT SPEECH DOCTRINE A. The Supreme Court Should Explicitly Overrule the Glickman Precedent 1. The Glickman Distinction is Blurry, Easily Manipulated, and Difficult to Apply 2. Glickman Provides Congress with a Dangerous Incentive to Over-Regulate 3. Perversely, the Glickman Precedent Increases the Burden on Those Involved in Regulatory Programs B. The Government Speech Doctrine Should Be Rendered Inapplicable to Commercial Speech C. At a Minimum, Government Speech Should Not Implicate Private Speakers V. CONCLUSION
In the past 30 years, the landscape of commercial speech has been altered in many remarkable and somewhat indefinite ways. From initial inclusion within the protections of the First Amendment in 1976, (1) to the initial development of the Government Speech Doctrine in 1991, (2) the wide array of changes has created a segment of First Amendment jurisprudence that is as confusing as it is novel.
During the mid to late 1980s, Congress passed a group of legislative programs meant to organize the various sectors of weak and declining agricultural production, and provide for common group expenditures on research and advertising programs. In particular, in 1985, Congress adopted the Beef Promotion and Research Act of 1985 (3) (beef checkoff). This Act authorizes the Secretary of Agriculture to promulgate Market Orders and assemble a group of industry experts to be a part of a Beef Board which, though overseen by the Secretary, administers the research and marketing projects. (4) The projects of this board are funded entirely through targeted assessments exacted from beef producers: a "checkoff" set at the rate of one dollar per head of cattle. (5) The most visual example of this advertising is the ubiquitous "Beef. It's What's for Dinner" and the sound and video that accompanies it in the many commercial advertisements. (6)
While many may debate the relative effectiveness of these advertisements in proportion to the millions spent in their development and promulgation, perhaps the greatest point of contention surrounding commodity research and advertising programs such as these is their constitutionality. Because all beef producers--large or small, from family farms to multi-state conglomerate corporate farms--are required to pay the checkoff if they wish to participate in production, producers of various incomes, political perspectives, and--most importantly, marketing strategies--are compelled to contribute. The question facing the federal judiciary, and at its pinnacle, the Supreme Court, is whether the First Amendment will allow for compelled contributions to be used by the government, on behalf of private producers, to fund speech that some contributors find objectionable and contrary to their individual marketing positions and strategies.
The resolution of this controversy has wide-ranging legal and economic ramifications that are too large to ignore. If these programs are able to withstand First Amendment challenges, Congress may be put on notice that this type of regulation will always pass constitutional muster. Thus, these limited commodity programs may double or triple in number.
This Note first explores the development of the Supreme Court's commercial speech jurisprudence, tracing its growth from the beginning in the 1980s to the present. Next, this Note discusses the state of the law dealing with forced commercial speech and the Government Speech Doctrine, paying special attention to the uncertainty arising from recent Supreme Court decisions. Then, the Note proposes three possible changes that could be implemented either legislatively or judicially in an effort to reduce uncertainty and redefine the limits of allowable forced commercial speech to more acceptable levels.
II. BACKGROUND: THE DEVELOPMENT OF COMMERCIAL SPEECH JURISPRUDENCE
A. Origins of Commercial Speech Protection
The first Supreme Court case to extend First Amendment protection to purely commercial speech was Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council. (7) In that case, an eight-member majority held that a state may not "completely suppress the dissemination of concededly truthful information about entirely lawful activity." (8) Prior to this decision, courts considered commercial speech--defined as "speech which does 'no more than propose a commercial transaction,'" (9)--unprotected by the First Amendment. (10) The majority held that because even purely commercial speech can be just as important, if not more important, to individual choice and liberty as political or ideological speech, it deserves to be protected in the same manner as speech at the core of the Amendment's protection. (11)
The Court's extension of protection, however, was not without limits. The Court did not afford protection to commercial speech that is false or misleading, (12) or that deals with an illegal product or transaction. (13) It is within this context of First Amendment protection that the Court later analyzed the constitutionality of forced commercial speech, which is the subject of this Note.
Some years later, the Court elaborated on the protections afforded to commercial speech by proffering a four-part analysis to determine if a regulation prohibiting commercial speech is constitutional. First, the Court decides whether the speech is protected commercial speech. To be protected, the speech must concern lawful activity and not be misleading. Second, the Court determines if the stated government interest in the regulation is substantial. If the Court answers the previous two inquiries in the affirmative, it then determines whether the regulation advances the stated government interest. Finally, the Court decides whether the regulation is over-inclusive or overbroad in advancing the government interest. (14) Still recognizing that some commercial speech remains outside the bounds of First Amendment protection, (15) the Court--using the above four-part analysis--struck down a state regulation seeking to prohibit a state created monopoly electric utility from advertising. (16)
The Central Hudson decision has other important ramifications for compelled commercial speech because of the distinct judicial positions developed by members of the Court that have remained in later decisions. For example, Justice Rehnquist dissented to the Court's decision on the grounds that commercial speech should not be protected by the First Amendment in the same regard as political or ideological speech, (17) and because he believed the state law to be "more akin to an economic regulation to which virtually complete deference should be accorded by this Court." (18) Both of these positions are central to the outcome of subsequent compelled commercial speech decisions, (19) which find their jurisprudential roots, at least in part, in Central Hudson.
B. Origins of the Unconstitutionality of Compelled Speech
An individual's right to speak and express him or herself is widely believed to be at the core of the First Amendment's free speech protections. However, protection of the converse value, the right not to speak or express oneself against the force or compulsion of the government or state, was previously not so certain. In West Virginia State Board of Education v. Barnette, (20) the Court struck down a state statute requiring all students and teachers to salute the American flag and recite the Pledge of Allegiance. (21)
The Court has also upheld a citizen's right to be free from compulsion to display his state's motto on his vehicle's license plate. (22) More broadly, the Court posited that "where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message." (23) This dicta would seem to suggest that state action is unconstitutional whenever it compels a citizen to express an ideology that is not his own. However, a separate requirement to the successful invocation of the First Amendment, emphasized by Justice Rehnquist, is to show that the state "place[s] the citizen in the position of either apparently or actually 'asserting as true' the message." (24) This concept, known as attribution, is a fundamental component of a successful compelled commercial speech challenge. (25)
C. Supreme Court Compelled Commercial Speech Jurisprudence
1. Glickman v. Wileman Bros. & Elliot
One of the Supreme Court's first decisions regarding compelled commercial speech came in 1997, when it decided Glickman v. Wileman Bros. & Elliot. (26) In that case, large producers of various fruits challenged a federal statute (27) which, among other things, (28) compelled all producers to contribute to a generic advertising program, which these particular producers opposed. (29) The producers challenged the statute on the theory that forcing producers to finance generic advertising--commercial speech--to which they objected, was a violation of the producers' First Amendment right not to speak. (30)
The Court responded to this challenge by upholding the compelled funding statute for several reasons. The Court determined that because "the marketing orders impose[d] no restraint on the freedom of any producer to communicate any message to any audience," meaning "they do not compel any person to engage in any actual or symbolic speech," and "they do not compel the producers to endorse or finance any political or ideological views," they do not violate the First Amendment. (31) The Court found dispositive the fact that the compelled speech regulation was ancillary to "a broader collective enterprise in which [the producers'] freedom to act independently [was] already constrained by the regulatory scheme." (32) Because the larger regulatory scheme was already substantially invading the producer's autonomy, the Court seemed to feel justified in allowing another small loss of individual liberty for the greater collective good.
Moreover, the Court emphasized that because the speech could not be attributed to the producers, (33) they could not make a successful First Amendment challenge. Demonstrating attribution is a factual showing that requires the challengers to prove not merely that they reject the compelled message, but that others will reasonably believe it is an expression of the challenger's belief. The Court reasoned that because the producers did not attempt to show that the public attributed the generic advertising to them, their First Amendment rights were not at issue. Therefore, their complaint could be reduced to a financial objection, and "[t]he mere fact that objectors believe their money is not being well spent" (34) does not invoke the First Amendment.
The dissent argued that, because commercial speech is a protected form of speech, compelling it may violate the First Amendment. (35) Moreover, the dissent wrote "that compelling cognizable speech officially is just as suspect as suppressing it, and is typically subject to the same level of scrutiny." (36) This dissent is important both because of what it stands for, and because of who joined in it. Written by Justice Souter, and joined by Chief Justice Rehnquist and Justices Scalia and Thomas, the dissent brought together points of view that would soon become fragmented as the ease law developed. (37) This line of reasoning, expressed best in a separate dissent by Justice Thomas in Glickman, posits that "[e]ither (1) paying for advertising is not speech at all ... [or] (2) compelling payment for third party communication does not implicate speech." (38) Both ideas from Justice Thomas seem somewhat untenable, which makes for no surprise that further litigation in this area of the law was soon to follow.
2. United States v. United Foods
In United States v. United Foods (39)--the next compelled commercial speech case, four years after Glickman--the Court struck down a federal statute (40) that "mandate[d] assessments on handlers of fresh mushrooms to fund advertising." (41) The Government did not rely on the four-part Central Hudson test (42) to uphold the statute; instead, the Court struck down the statute on other grounds.
The Government argued that Glickman was controlling, and thus it should be upheld because "[i]t imposes no restraint on the freedom of an objecting party to communicate its own message; the program does not compel an objecting party ... itself to express views it disfavors; and the mandated scheme does not compel the expression of political or ideological views." (43) Rejecting that argument, the Court distinguished Glickman on the grounds that the statute in Glickman was part of a broader regulatory scheme, whereas in United Foods, the compelled speech stood alone. (44) Based on this distinction, the Court refused to uphold "compelled subsidies for speech in the context of a program where the principal object is speech itself." (45) Additionally, the Court seemed to find dispositive the fact that the funding assessments were mandatory, making it difficult for individual producers who objected to the speech to disassociate themselves from it or the group of producers funding it. (46)
The Court left unanswered the question of attribution, which, given the outcome of the case, can only mean it believed the challengers could have shown the advertising was attributable to them. The Court must have believed that, for First Amendment purposes, the speakers in the compelled advertisements were the producers. However, as would later prove to be unquestionably important, (47) the Government in United Foods failed to argue during its first appeal that the speaker of the message was the government itself, making the speech in question government speech. Therefore, the Court was precluded from deciding the case on the issue of attribution. (48)
It is important to note the judicial distinctions championed by the various Justices. Justices Stevens and Thomas joined the majority opinion, but wrote separately to articulate distinctions in rationale. (49) Justice Stevens, dissenting in Glickman, expressed his opinion that because the impact of the forced advertising contributions was small in perspective to the "far greater liberty" already lost to the substantial regulatory scheme, the First Amendment issue was insignificant. (50) Justice Thomas used his concurrence to reiterate the conclusions he reached in Glickman: money for advertising necessarily involves speech, and forcing the compelled funding of advertising "must be subjected to the most stringent First Amendment scrutiny." (51)
The dissent (52) questioned why the Court relied on the lack of intrusiveness of the regulatory scheme to strike down the statute. Justice Breyer argued that "[i]t is difficult to see why a Constitution that seeks to protect individual freedom would consider the absence of 'heavy regulation,' to amount to a special, determinative reason for refusing to permit this less intrusive program." (53) Moreover, the dissent continued to believe that "'compelled speech case law ... [is] clearly inapplicable' to compelled financial support of generic advertising." (54) The dissent classified the statute in question as one that compelled money, not speech, (55) and therefore believed that it should have been treated not as forcing commercial speech, but as an economic regulation. (56) The distinction between a regulation forcing commercial speech and a purely economic regulation is important. (57) If the majority would have found this statute to be purely economic in nature, it would have likely upheld it as being well within the sphere of rational legislation.
3. Johanns v. Livestock Marketing Association
The most recent decision by the Supreme Court in the area of compelled commercial speech is Johanns v. Livestock Marketing Assoc., (58) which the Court decided in May of 2005. The plaintiffs in Johanns consisted of groups of beef producers as well as individual producers. (59) Together, they challenged a program that was, in the Court's words, "in all material respects, identical to the mushroom checkoff at issue in United Foods." (60) This program--the beef checkoff--like the mushroom checkoff, is based on a federal statute (61) that requires beef producers to pay a per-head cattle assessment to a central committee, with the majority of the money going to generic beef advertising. (62) The plaintiffs' challenge was based on the statute's use of compulsory assessments to finance commercial speech to which the plaintiffs objected. (63)
In Johanns, unlike in United Foods, the Government argued that the commercial speech in question--the generic advertisements--were in fact the government's own speech, and thus exempt from the First Amendment under the Government Speech Doctrine. (64) This argument was dispositive for the Court, which held 5-4 that the speech was that of the government, and that the statute was facially constitutional. (65)
The Government Speech Doctrine is an exception to traditional First Amendment jurisprudence, which recognizes that "[c]ompelled support of government--even those programs of government one does not approve--is of course perfectly constitutional, as every taxpayer must attest." (66) Therefore, if the government, during the course of advocating a particular policy position, uses tax money to advance the position, taxpayers can raise no First Amendment challenge. The Court noted in Johanns that the Government Speech Doctrine comports with the First Amendment because the government's policy positions are accountable to the public through democratic elections. (67)
However, legal writers have "fretted for two decades that government speech might undermine First Amendment values, and Johanns offers no reason to believe that these fears are misplaced." (68) This fear is due to the somewhat undefined, yet seemingly large power of the Government Speech Doctrine to defeat competing First Amendment values. So long as it is possible to convince the Court that the challenged speech is that of the government, any and all First Amendment challenges fail.
With the Government Speech Doctrine proving dispositive in Johanns, the crux of the case was determining the identity of the speaker. The majority believed the advertisements to be "from beginning to end [a] message established by the Federal Government." (69) In previous cases of compelled commercial speech, such as Glickman and United Foods, "the speech was, or was presumed to be, that of an entity other than the government itself." (70) The majority in Johanns, however, found that the government was the speaker because the challenged statute ensured that the government controlled, through the Secretary of Agriculture, the advertisement's final message. (71) The majority held that the Government is "not precluded from relying on the government-speech doctrine merely because it solicits assistance from non-governmental sources." (72)
Moreover, the Court rejected the producers' assertions that speech funded by targeted assessments cannot qualify as government speech. (73) The Court's finding reduces the likelihood that the First Amendment prohibits programs similar to the beef and mushroom checkoff. The Court determined that compulsory targeted assessments are an acceptable means of financing the generic advertising, "because the injury of compelled funding (as opposed to the injury of compelled speech) does not stem from the Government' s mode of accounting." (74)
Next, the Court did not accept the producers' attempt to use the principle of attribution to disqualify the speech from the Government Speech Doctrine. (75) The Court indicated that the outcome may have been different if the producers would have introduced facts to show that "a viewer would identify the speech as [the producers']." (76) Therefore, in this case and others, a factual showing of attribution to the plaintiff may be enough to shift the status of speaker away from the government, and thereby invalidate the forced commercial speech.
In Johanns, as in the preceding cases, it is critical to the understanding of the current state of the law of forced commercial speech to understand the distinctions that each Justice manifests in his or her decision. (77) Justice Thomas concurred with the opinion of the Court, but wrote separately to express his determination that, notwithstanding the Government Speech Doctrine, the government may not, through forced funding or other means, "associate individuals or organizations involuntarily with speech by attributing an unwanted message to them." (78) Justices Breyer and Ginsburg also concurred, with Justice Ginsburg concurring only in the judgment, and both wrote to express their belief that the regulation at issue is best upheld not through the Government Speech Doctrine, but as a "permissible economic regulation." (79)
The dissenting Justices advanced the greatest objection against the majority's classification of the advertising as government speech. (80) Justice Souter's dissent, joined by Justices Kennedy and Stevens, best explains this objection. Justice Sourer wrote "that a compelled subsidy should not be justifiable by [government] speech unless the government must put that speech forward as its own." (81) Because the advertisements are not clearly attributed to the government, though also not clearly attributable to the producers, they cannot qualify for protection under the Government Speech Doctrine. (82) Justice Kennedy would require an affirmative act by the government--claiming the speech as its own--in order to trigger the protections of the Government Speech Doctrine. (83)
III. ANALYSIS: WHERE ARE WE AFTER JOHANNS?
Instead of providing a clear rule for when the First Amendment does or does not protect forced commercial speech, the Court in Johanns established a highly uncertain and murky set of rules which lower courts must attempt to apply. Because of the way previous cases--in particular United Foods and Glickman--were argued and decided, Johanns seems, at first glance, difficult to synthesize with the Court's earlier precedent. However, through a narrowly worded yet indispensably important distinction, coupled with the possibility of a future as-applied challenge, the Court was able to decide Johanns, notwithstanding settled expectations, and still avoid overruling precedent.
A. Distinction of Glickman
One of the key uncertainties created by the Johanns Court was what to make of its distinction of Glickman as proper controlling precedent. As it did in United Foods, the Court distinguished Glickman on the grounds that the beef checkoff was not the type of large, invasive regulatory scheme that warranted exemption from the First Amendment. (84) The Court's decision not to overrule Glickman created a great deal of uncertainty for lower courts, which are forced to apply Johanns.
Although the programs at issue in both United Foods and Johanns were held not to be ancillary to a larger regulatory scheme, while the Glickman program was, the Court provided no real guideposts on where to draw this important line. This left both the Government--primarily through future drafters of checkoff program legislation--and potential First Amendment challengers without a solid way of determining whether the facts of their situation fit into the Glickman precedent or not. Somewhat perversely, Congress now has an incentive to write forced commercial speech regulatory programs that are more intrusive and restrictive than those of United Foods and Johanns in order to ensure constitutionality if a future court would decide to apply the still-alive Glickman precedent. This may not have been the result that many of the Justices supported, but because the plurality in Johanns was only four Justices, support for overruling Glickman may not have been present.
B. Forced Commercial Speech and Attribution
The plurality in Johanns recognized that, on remand, if the producers were able to make a factual showing of attribution, they may have had a viable as-applied challenge to the checkoff program. (85) However, this dicta did little to clear the confusion regarding the factual showing of attribution. The Court reasoned that because the record did not support a finding that a reasonable person would attribute the advertisements to the members of the producers' group, no First Amendment issue arose. (86)
The Court further held that because the speech could properly be attributed to the government, due to its sanctioning by the Secretary of Agriculture, among other things, the Government Speech Doctrine applied to the advertisements, exempting them from First Amendment challenges. (87) This left fundamentally unsettled whether a factual showing of attribution to the producers would be enough in every case to displace the Government Speech Doctrine, or if the Court would continue to treat any form of forced commercial speech with a reasonable degree of governmental oversight as government speech. Moreover, the Court did not provide guidance on what precedent to apply if the forced commercial speech is neither attributable to the government, nor the citizens who financed it. In such a case, it appears that no First Amendment issue would result, because the producers would be unable to prove attribution. However, because the Government Speech Doctrine could not be applied, the advertisements would ultimately be classified as speech without a speaker. Since it should be presumed that all speech must inevitably have a speaker, this void in the law of forced commercial speech creates a gaping hole in the fabric of the Court's First Amendment jurisprudence.
The Johanns dissent argued, rather strenuously, that if the Government Speech Doctrine is to be properly and fairly applied, "the government must put that speech forward as its own." (88) This proposition, which appears fair-minded and reasonable, is apparently on shaky legal ground. As the plurality responded, "[t]he dissent cites no prior practice, no precedent, and no authority for this highly refined elaboration--not even anyone who has ever before thought of it." (89) Perhaps in the future, as the makeup of the Court undergoes its inevitable shifts and changes, this theory of government speech attribution will gather more support. However, as the law stands after Johanns, the Government Speech Doctrine can be invoked to exempt from the First Amendment forced commercial speech with no clear disclosure linking that speech to the government itself.
C. Taxation and Forced Commercial Speech
Another important holding in Johanns was the Court's rejection of the producers' challenge of the targeted tax assessments used to finance the checkoff advertising. The dissent argued against this part of the opinion, suggesting that because the assessments were targeted to a specific group of taxpayers, and not taxpayers in general, the democratic check on government speech inherent in the Government Speech Doctrine was weak, and thus the Doctrine should not apply. (90) The Court held that because the speech was the government's own, the producers had no more basis for a challenge even "when the funding is achieved through targeted assessments devoted exclusively to the program to which the assessed citizen objects." (91) Therefore, it seemed that at least a plurality of the Court was of the opinion that the method of assessment bore absolutely no effect upon the ability to mount a successful First Amendment challenge. This gave a great amount of latitude to Congress to legislate forced commercial speech programs that constitutionally place the onus of compelled funding on whichever targeted subset of citizens it decides appropriate.
IV. RECOMMENDATIONS: ELIMINATING UNCERTAINTY AND LIMITING THE GOVERNMENT SPEECH DOCTRINE
A. The Supreme Court Should Explicitly Overrule the Glickman Precedent
In order to piece together a slim majority in United Foods, (92) the Court avoided overturning Glickman and instead distinguished it on the facts. The regulatory program at issue was not found to be the large and intrusive type that was at issue in Glickman, and thus that precedent was not controlling. In the interest of eliminating uncertainty, and removing a dangerous incentive for Congress to create intrusive economic programs including forced commercial speech, the Court should explicitly overrule Glickman. The portion of Glickman that survived United Foods and Johanns is the First Amendment exception for "generic advertising [that is] ... part of a broader collective enterprise" or intrusive "regulatory scheme." (93) For the reasons outlined below, this distinction should be overturned.
1. The Glickman Distinction is Blurry, Easily Manipulated, and Difficult to Apply
Glickman holds that only intrusive regulatory schemes are exempt from First Amendment challenges. What Glickman fails to provide, however, is any meaningful and consistent way for future courts to make this distinction, or even why this distinction should be made. Within their wide discretion, district courts could properly decide to analyze this distinction with any number of possible comparison characteristics, including: percentage of forced contributions spent on advertising; number of participants in the program as a percentage of the entire market; a comparison of the essential functions of the entire legislative program, etc.
A less than scrupulous lower court could use this wide array of discretion to make a factual determination on the intrusiveness of the regulatory scheme suitable to that court's own preferences but which has little to do with prudent, sound judicial precedent. Whenever lower courts are forced, or even allowed, to make this sort of ad hoe judicial determination, an unacceptable and wholly preventable amount of uncertainty and contempt for the judicial system could arise. By overruling Glickman, the Court could eliminate this large judicial loophole and provide lower courts with other sound and determinative precedent on which to rely.
2. Glickman Provides Congress with a Dangerous Incentive to Over-Regulate
Congress is now on judicial notice from Glickman that one way to ensure that forced commercial speech regulatory schemes survive a First Amendment challenge is to make the program more intrusive and offensive to our capitalist economy. Most eloquently stated by Justice Breyer's dissent in United Foods, "[i]t is difficult to see why a Constitution that seeks to protect individual freedom would consider the absence of 'heavy regulation' to amount to a special, determinative reason" to strike down a program as contrary to the First Amendment. (94) Justice Breyer was quite right when he expressed his frustration and distaste for a precedent that upholds more intrusive and anti-capitalist regulatory programs and forbids the alternative.
At the very least, Congress should be given incentive to cut back on the intrusiveness of free-market-displacing regulatory schemes. Explicitly overruling Glickman will do just that. In most cases, the best manifestation of a regulatory program that seeks to force contributions for commercial speech is none at all, but in the absence of that, programs should be narrowly tailored so as to least offend our nation's capitalist and individualist traditional values. Fortunately, the Court, since Gliclonan, has yet to base its decision to uphold a forced commercial speech regulatory program on Glickman, but this provides little or no comfort for those seeking to protect free speech, free enterprise, and capitalism.
3. Perversely, the Glickman Precedent Increases the Burden on Those Involved in Regulatory Programs
Not only does the Glickman holding provide Congress with an incentive to increase the regulatory burden of checkoff-based regulatory programs, (95) but it also ultimately increases the burden on all producers' ability to make free and individual choices. Since the Court has placed the onus on Congress to avoid a ruling eliminating legislative programs such as these by enlarging the scope of the regulatory scheme involved, the Court is also indirectly making it more difficult for producers to stay in business and avoid the consequences of the burdensome regulation. Logically, the larger the scope of the regulatory program, the more difficult it becomes for producers to function outside it, whether or not they reject the forced commercial speech aspects involved. Therefore, and rather perversely, the more egregious the violations of individual choice and free market sensibility, the more producers will be forced into submission, and consequently, because of Glickman, the less likely they will be able to successfully mount a First Amendment challenge.
B. The Government Speech Doctrine Should Be Rendered Inapplicable to Commercial Speech
As outlined in the background section, (96) commercial speech has only recently enjoyed any protection at all through the First Amendment. Because the Court in United Foods, at least tacitly, seemed to adopt the position of the Glickman, dissent which argued "that compelling cognizable speech officially is just as suspect as suppressing it," (97) the Court could eliminate a great deal of uncertainty by taking the next logical step and hold the Government Speech Doctrine inapplicable to commercial speech.
The Government Speech Doctrine is necessary to the effective implementation of legislative and executive powers. The Supreme Court has posited that "it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies." (98) However, this Doctrine has no place in the realm of commercial speech. The government is not, and should not be, a business. Its place in the business world should be that of a neutral referee: involving itself with limited regulation only when absolutely necessary, but never supplanting or usurping private companies in their strategic business enterprises. Unfortunately, that is exactly what regulations of the type found in Glickman, United Foods, and Johanns are.
The government has no place in the direction of the various diverse and strategically implemented marketing decisions of private industry. The fundamental problem with classifying programs of this type as "permissible economic regulation"--as was done in Justice Ginsburg's Johanns concurrence (99)--is that such a classification completely ignores the compelled speech which is the crux of the problem. Permissible economic regulations come in the form of taxes, consumer safety and welfare guidelines, employee and labor regulations, etc., not in the form of forced contributions for objectionable commercial speech.
The sound constitutional justification for the Government Speech Doctrine is that the government must inevitably advocate for various policy decisions, but that this advocacy is checked by the voters' ability to change the direction, and thus, the positions the government advocates. (100) However, not only is it completely inessential that the government involve itself in the advocacy of commercial messages, but it should also be held impermissible. There exists a fundamental difference between the government using taxes--even targeted taxes--to create and disperse advertising urging the use of seatbelts, the negative effects of smoking, or the political efficacy of voting, etc., and the government forcing others to pay for advocacy about which type of fruit, meat, or mushroom products Americans should choose to make up their diet. Moreover, when such compelled contributions are exacted, not from the general public, but from a subset of targeted taxpayers, the effectiveness of the democratic check on the Government Speech Doctrine is much less effective. (101) Although the Court refused to distinguish between general revenue and targeted assessments in Johanns, and thus found the producers' challenge on these grounds to be without merit, (102) challenges to the Government Speech Doctrine on similar grounds may and perhaps should still be brought in the future.
By excluding from the Government Speech Doctrine the advocacy of commercial messages, the Court would be limiting the Doctrine to cases in which it is sound and justifiable. Under the current approach, special interest groups from every sector of private industry need only secure the passage of their own pet forced commercial speech program to compel burdensome monetary contributions for advertising from any number of private producers. This is the kind of regulation that should not be able to survive First Amendment scrutiny simply by invoking a remote and erroneously applied exception. Because the Government Speech Doctrine is still quite new and unrefined, it seems most prudent that "[u]ntil the Court delineates the full contours of [G]overnment [S]peech [D]octrine, it should show the utmost solicitude for traditional First Amendment values." (103) The best way to do so would be to prohibit application of the Government Speech Doctrine to cases in which the compelled speech is purely commercial.
C. At a Minimum, Government Speech Should Not Implicate Private Speakers
The dissent in Johanns in part advocates an interesting and novel approach in determining whether the Government Speech Doctrine can be applied to provide a judicial exception to the First Amendment. The argument states that "a compelled subsidy should not be justifiable by [the Government Speech Doctrine] unless the government must put that speech forward as its own." (104) Although this would certainly and properly curtail the application of the Government Speech Doctrine to cases where there is no question in anyone's mind as to whom the speech is correctly attributed, such a requirement may go too far in means to reach even admirable ends. Such an approach would likely lead to the unintentional consequence of forcing the government to overtly associate itself with every minute piece of information it produces, whether in the form of written words, spoken words, and communications both verbal and nonverbal. It also seems quite imprudent that such a requirement could be suddenly found within a Constitution over 200 years old. Such a result would be overly burdensome on the government, weighing down an already painfully slow bureaucracy, increasing the ever ballooning administrative cost of government, and opening the government up to costly liability whenever such disclosure is accidentally overlooked.
In contrast, an alternative proposal exists, which has the effect of preventing unwanted attribution and also avoids the needless hassle of forcing the government to explicitly claim all of its speech as its own. The government should be required only to tailor all speech it intends to exempt from the First Amendment through the Government Speech Doctrine in a way that ensures that a reasonable person would not attribute the views expressed in the speech to those compelled to fund it--either the citizens at large through general tax revenue, or producers such as those in Johanns and United Foods through targeted assessments. This middle ground approach, coupled with the other commercial speech related recommendations advocated above, would ensure that when the government finds it necessary to advocate a policy position through compelled contributions, targeted or otherwise, no First Amendment issue will arise for lack of proper attribution.
The Court in Johanns held that advertisements which bore "the attribution 'Funded by America's Beef Producers'" and "a Beef Board logo" (105) not only could not be attributed to the producers absent a specific factual showing, (106) but moreover that they could affirmatively be attributed to the government in order to avoid First Amendment protection. (107) The Court's conclusion seems to not only ignore the strong presumption of First Amendment protection, which has become a bedrock manifestation of our civil liberties, but, even more offensively, to stretch the lengths of logical persuasion and reasoned analysis. It stands to reason that when the viewing public is confronted with an advertisement bearing the logo of an industry group, they will assume the views expressed within are those of the group with its logo attached. Application of the Government Speech Doctrine is clearly inappropriate where the speech seems to naturally attribute itself to private individuals, and fails to implicate the government in even the most indistinct manner.
If the advertisements in Johanns were required to be edited in such a way as to remove the Beef Board logo and funding statement, it would be difficult for the producers to make an effective argument that the views expressed within are unfairly being attributed to them. In an instant, all the equities would transfer, and the affront to the First Amendment would vanish. At the same time, the government would not be forced to comply with the overly burdensome requirements suggested by Justice Souter, as there would be no need for affirmative government attribution to invoke the Government Speech Doctrine.
However, there are drawbacks to this approach. First and foremost, refining the Government Speech Doctrine in this way suffers from what can perhaps be said to be the worst flaw of Justice Souter's alternative position in Johanns: (108) there is no textual or precedential support for the requirement that the government tailor its speech so as to purposively dissociate private individuals. Additionally, if this is the only limitation placed on the Government Speech Doctrine, Congress can easily abide by this requirement and concurrently still manage to avoid a First Amendment prohibition on compelled contributions for purely commercial speech, a position contrary to that taken by this Note. (109)
By providing a summary of the background of forced commercial speech and Government Speech Doctrine law, as well as an analysis of the uncertainties and remaining distinctions in the law after Johanns v. Livestock Marketing Assoc. was decided, this Note advanced the argument that the current manifestations of forced commercial speech go beyond what the First Amendment should allow, and also that which the Government Speech Doctrine was designed to enable. There are enormous social and economic costs to the uncertainty created by Johanns. Through Glickman, Congress has been given the incentive to create compelled advertising programs that are over-intrusive and burdensome in order to ensure First Amendment protection. The Supreme Court has upheld this precedent that is both inherently difficult to apply and open to abuse by unscrupulous judges. Worst of all, agricultural producers, big and small, are being forced to finance objectionable advertising that conflicts with our country's traditional notions of capitalism and individuality.
This Note has argued for the consideration of several methods of reducing the uncertainty resulting from Johanns and placing proper limits on the government's ability to force private individuals to fund and be linked to commercial speech. First, the Supreme Court should overrule the unpredictable and dangerously malleable Glickman regulatory distinction. Next, the government should be precluded from invoking the Government Speech Doctrine in cases dealing with purely commercial speech. The government's limited role in private commercial endeavors certainly should not include advising citizens on what meat they should choose for dinner, especially when the link between the speech at issue and the government-as-a-speaker is tenuous at best. Finally, the government should be required, at a minimum, to ensure that any and all government speech is edited so as not to cause attribution to private citizens, whether those citizens are forced to finance the speech or not.
Though this area of law is only now entering its adolescence, (110) the problems that have already resulted are too costly and dangerous to ignore. Based on the Court's holding in Johanns, there seems to be little standing in the way of the ability of an overzealous Congress to try its hand in the creation of many more "checkoff' subsidy programs like that at issue in Johanns, United Foods, and Glickman. If action is not taken, perhaps we may soon wish we would have drawn the line at "Beef. It's What's For Dinner."
(1.) See infra Part II.A.
(2.) See Rust v. Sullivan, 500 U.S. 173 (1991) (holding constitutional a federal statute that forbids spending government funds on family planning programs that included abortion).
(3.) 7 U.S.C. [subsection] 2901-2911 (2006).
(5.) 7 U.S.C. [section] 2904(8) (2006).
(6.) William C. Eldridge, Case Note, United States v. United Foods: United We Stand. Divided We Fall--Arguing the Constitutionality of Commodity Checkoff Programs, 56 ARK. L. REV. 147, 147 (2003).
(7.) Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976).
(8.) Id. at 773.
(9.) Id. at 762 (quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 385, 385 (1973)).
(10.) Id. at 781 (Rehnquist, J., dissenting).
(11.) See id. at 764 (explaining that "society also may have a strong interest in the free flow of commercial information. Even an individual advertisement, though entirely 'commercial,' may be of general public interest").
(12.) Va. State Bd. of Pharmacy, 425 U.S. at 771.
(13.) Id. at 772.
(14.) Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 566 (1980).
(15.) See id. at 563 (stating that "there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity," and that "[t]he government may ban forms of communication more likely to deceive the public than to inform it") (citations omitted).
(16.) Id. at 571-72.
(17.) Id. at 589 (Rehnquist, J., dissenting).
(18.) Id. at 591 (Rehnquist, J., dissenting).
(19.) See infra Part II.C.1 (discussion of Glickman v. Wileman Bros. & Elliot, 521 U.S. 457 (1997)); infra Part II.C.2 (discussion of United States v. United Foods, Inc., 533 U.S. 405 (2001)); infra Part II.C.3 (discussion of Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (2005)).
(20.) 319 U.S. 624 (1943).
(21.) Id. at 634 (holding that "[t]o sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind").
(22.) Wooley v. Maynard, 430 U.S. 705, 713 (1976) (holding that a state may not "constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public").
(23.) Id. at 717.
(24.) Id. at 721 (Rehnquist, J., dissenting).
(25.) See infra Part II.C.3.
(26.) 521 U.S. 457 (1997).
(27.) Agricultural Marketing Agreement Act of 1937, 7 U.S.C [subsection] 601-602 (2005).
(28.) Glickman, 521 U.S. at 461.
(29.) Id. at 463.
(30.) Id. at 460-61.
(31.) Id. at 469-70.
(32.) Id. at 469.
(33.) Glickman, 521 U.S. at 471.
(34.) Id. at 472.
(35.) Id. at 481 (Souter, J., dissenting).
(37.) See infra Part II.C.2 (discussion of United States v. United Foods, Inc., 533 U.S. 405 (2001)); infra Part II.C.3 (discussion of Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (2005)).
(38.) Glickman, 521 U.S. at 506 (Thomas, J., dissenting).
(39.) 533 U.S. 405 (2001).
(40.) Mushroom Promotion, Research, and Consumer Information Act, 7 U.S.C. [subsection] 6101-6112 (2006).
(41.) United Foods, 533 U.S. at 408.
(42.) Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980).
(43.) United Foods, 533 U.S. at 411.
(44.) Id. at 411-12 ("In Glickman the mandated assessments for speech were ancillary to a more comprehensive program restricting marketing autonomy. Here, for all practical purposes, the advertising itself, far from being ancillary, is the principle object of the regulatory scheme.").
(45.) Id. at 415.
(46.) Id. at 413.
(47.) See infra Part II.C.3.
(48.) United Foods, 533 U.S. at 416.
(49.) The majority opinion was written by Justice Kennedy, and was joined by Chief Justice Rehnquist and Justices Stevens, Scalia, Souter, and Thomas.
(50.) United Foods, 533 U.S. at 418 (Stevens, J., concurring).
(51.) Id. at 418-19 (Thomas, J., concurring).
(52.) Justice Breyer, joined by Justices Ginsburg and O'Connor in part, dissented in United Foods.
(53.) United Foods, 533 U.S. at 422 (Breyer, J., dissenting) (citation omitted).
(54.) Id. at. at 424 (citations omitted).
(55.) Id. at 425.
(56.) Id. at 428.
(57.) Then-Justice Rehnquist relied on this distinction in his dissent to the Court's striking down a state regulation forbidding the monopoly electric utility from advertising. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 591 (1980) (Rehnquist, J., dissenting). Justices Breyer and Ginsburg later attempted to extend that distinction to uphold a statute compelling commercial speech. See United Foods, 533 U.S. at 428 (Breyer, J., dissenting).
(58.) 544 U.S. 550 (2005),
(59.) Id. at 555.
(60.) Id. at 558.
(61.) Beef Promotion and Research Act of 1985, 7 U.S.C. [subsection] 2901-2911 (2006).
(62.) Johanns, 544 U.S. at 553-54.
(63.) Id. at 555.
(64.) Id. at 553.
(65.) Id. at 567-68.
(66.) Id. at 559.
(67.) Johanns, 544 U.S. at 575 (Kennedy, J., dissenting).
(68.) Government Speech--Compelled Support For Agricultural Advertising, 119 HARV. L. REV. 277, 283 (2005) (citation omitted) (emphasis added) [hereinafter Government Speech].
(69.) Johanns, 544 U.S. at 560.
(70.) Id. at 559.
(71.) Id. at 561.
(72.) Id. at 562.
(73.) Id. (stating that because the assessments are targeted and not general taxes, they "give control over the beef program not to politically accountable legislators, but to a narrow interest ... and [they] create the perception that the advertisements speak for beef producers such as respondents").
(74.) Johanns, 544 U.S. at 563.
(75.) Id. at 564. There the producers argued that, "if [the advertisements] are attributed to someone other than the government; and the person to whom they are attributed, when he is, by compulsory funding, made the unwilling instrument of communication, [he] may raise a First Amendment objection." Id.
(76.) Id. n.7.
(77.) The opinion of the Court in Johanns was written by Justice Scalia; Chief Justice Rehnquist, with Justices O'Connor, Thomas, and Breyer joined. Justices Thomas and Breyer filed concurring opinions. Justice Ginsburg concurred separately, joining only in the judgment of the Court. Dissents were written by Justices Kennedy and Sourer, and Justices Stevens and Kennedy joined Justice Sunter.
(78.) Johanns, 544 U.S. at 568 (Thomas, J., concurring).
(79.) Id. at 569 (Breyer, J., concurring); id. at 569-70 (Ginsburg, J., concurring in the judgment).
(80.) Id. at 571-72 (Kennedy, J., dissenting).
(81.) Id. (Souter, J., dissenting).
(82.) Johanns, 544 U.S. at 577 (Kennedy, J., dissenting).
(83.) Id. at 578.
(84.) Id. at 558-59 (majority opinion).
(85.) Id. at 565-66.
(87.) Johanns, 544 U.S. at 561.
(88.) Id. at 571 (Souter, J., dissenting).
(89.) Id. at 564 n.7 (majority opinion).
(90.) Id. at 575-76 (Souter, J., dissenting).
(91.) Id. at 562 (majority opinion).
(92.) United States v. United Foods, Inc., 533 U.S. 405, 407 (2001).
(93.) Glickman v. Wileman Bros. & Elliot, 521 U.S. 457, 469 (1997).
(94.) United Foods, 533 U.S. at 422 (Breyer, J., dissenting) (citation omitted).
(95.) See id. (Because Congress is now on notice that compelled commercial speech ancillary to a broad regulatory scheme has been held to survive a First Amendment challenge, it stands to reason, in order to ensure constitutionality, that they will incorporate this holding in future legislative endeavors.).
(96.) See infra Part II.A.
(97.) Glickman, 521 U.S. at 481 (Souter, J., dissenting).
(98.) Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 559 (2005).
(99.) Id. at 570 (Ginsburg, J., concurring).
(100.) See supra Part II.C.3.
(101.) Government Speech, supra note 68, at 287.
(102.) Johanns, 544 U.S. at 562.
(103.) Government Speech, supra note 68, at 283.
(104.) Johanns, 544 U.S. at 571 (Souter, J., dissenting).
(105.) Id. at 555 (majority opinion).
(106.) Id. at 565-66.
(107.) Id. at 560-61.
(108.) Id. at 571-72 (Sourer, J., dissenting).
(109.) See infra Part IV.B.
(110.) See Government Speech, supra note 68, at 283 (explaining that the jurisprudence surrounding the Government Speech Doctrine is relatively new and unrefined).
Daniel A. Dvorak, J.D. Candidate, University of Iowa College of Law, 2007; B.S., University of Nebraska--Lincoln, 2004. I would like to thank Professor Randy Bezanson for his invaluable inspiration and guidance, and my parents for their constant encouragement and support.
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|Author:||Dvorak, Daniel A.|
|Publication:||The Journal of Corporation Law|
|Date:||Jan 1, 2007|
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