Johanns v. Livestock Marketing Association-government speech: it's what's for dinner!
Everyone has seen or heard a "Beef. Its Whats for Dinner." advertisement on the television or radio at one time or another. (1) It is also likely that almost no one would guess that the advertisements are created by the government, especially considering that many of the ads have "Funded by Americas Beef Producers" inscribed on them. (2) Regardless, the United States Supreme Court in Johanns v. Livestock Marketing Ass'n (3) held that it does not matter whether consumers know the advertisements are government speech because the government is now able to entirely avoid First Amendment scrutiny through invocation of the government speech doctrine. (4)
The First Amendment of the United States Constitution sets forth restrictions on congressional ability to "abridge the freedom of speech...." (5) Nevertheless, this restriction is not absolute. (6) In some circumstances, Congress does have the ability to abridge the freedom of speech when it is in the greater interest of society. (7) In Johanns, however, the claim was centered on the implicit converse of the freedom to speak, the right to not speak or associate. (8) This right is not without its own limitations though, one of which is the government speech doctrine. (9)
The government speech doctrine was borne from the reality that the government must have the ability to use tax dollars to communicate, even if some citizens object to the governments message. (10) Without the ability to tax, the government would not be able to effectively operate. (11) In 2005, the United States Supreme Court upheld the Beef Act and Beef Order by labeling the generic advertisements "government speech" which essentially immunized the advertisement from the typical First Amendment scrutiny. (12) Subsequent to this holding, many students and scholars wonder where the outer limit of the government speech exception to First Amendment scrutiny might be. (13) The following note will first examine the facts and procedure surrounding Johanns v. Livestock Marketing Ass'n, including the facts and various legal rationales utilized by the lower courts as well as by the U.S. Supreme Court. (14) In addition, this note will briefly examine the history and development of the First Amendment in general, and more specifically, the establishment of the constitutional right of freedom of speech. (15) The note will then examine the case law leading up to the government speech doctrine and the Johanns decision. (16) Finally, the analysis will conclude with an in-depth assessment explaining why the Court reached the wrong result in this case. (17)
II. FACTS AND PROCEDURE
The federal government regulates several aspects of beef production, processing, and marketing. (18) The aspect of federal beef regulation at issue in Johanns was the Beef Promotion and Research Act of 1985 (Beef Act). (19) The Beef Act directs the Secretary of Agriculture to designate the Beef Promotion and Research Board to carry out the policy of promoting beef and products made of beef, under the Beef Act. (20) Once the Secretary appoints a Beef Board, the Board is to organize an Operating Committee by electing ten of its own members to be part of the Committee, and ten other representatives are elected by a federation composed of members of the state beef councils. (21) Furthermore, the Secretary is required to impose a one dollar-per-head assessment, also known as a "checkoff," on the sale or importation of all beef. (22) This checkoff is used to fund beef-oriented activities and advertisements designed by the Operating Committee and approved by the Secretary. (23) The checkoff dollars are then principally collected by individual state beef councils which send the revenue to the Beef Board. (24) Often, only fifty cents of the original one dollar actually goes to the Beef Board as the Beef Act and Beef Order allow producers to "voluntarily" give fifty cents of every dollar to their local state beef councils, instead of remitting the full one dollar assessment to the national Beef Board. (25)
The Beef Order, as it was originally created in 1986, was only temporary and subject to a referendum of producers to determine whether it should be made permanent. (26) In 1988, a large majority of producers voted to continue the program. (27) Between 1988 and 2001, over $1 billion had been collected through the checkoff. (28) The majority of the money has been allotted to promotional advertisements using the trademarked slogan, "Beef. Its Whats for Dinner." (29) Many, although not all, of these advertisements contain the acknowledgment "Funded by Americas Beef Producers." (30) The majority of advertisements on television and in print also have a Beef Board logo, which is typically a check mark and the word "BEEF." (31) There is no indication in these advertisements, however, that the federal government is mandating them. (32)
Each year, the checkoff accrues a significant sum of money for the Beef Board to use in its promotional activities. (33) For example, "[i]n the 2000 fiscal year ... the Beef Board collected over $48 million in assessments and spent over $29 million on domestic promotion." (34) In the 2001 fiscal year, the beef checkoff dollars totaled slightly over $86 million with approximately $38.6 million being transmitted directly from the local beef councils to the national Beef Board. (35) Additionally, importers of foreign beef contributed another $8.8 million in fiscal year 2001. (36) Since both domestic producers and foreign importers are required to pay the assessments, the ads make no distinction between foreign-raised and domestic-raised beef. (37) In contrast, United States beef can be specifically marketed as such in foreign countries. (38) More than half of the total beef checkoff monies, including those collected at the state level, are spent on generic advertising. (39) Eighty-five to ninety percent of the monies remitted to the Beef Board are used to support this generic advertising. (40)
In December 2000, the respondents in this case, including Livestock Marketing Association, Western Organization of Resource Councils, and several solitary cattle producers, filed suit against the Secretary of Agriculture, the United States Department of Agriculture (USDA), and the Beef Board. (41) The respondents challenged the governments administration of the Beef Order. (42) The Beef Board responded to the petition drive by "significantly increas[ing] the expenditures on 'producer communications, or political messages supporting the checkoff and discouraging cattle producers from supporting a referendum." (43) The respondents brought suit on December 29, 2000, because the Secretary had not yet scheduled a referendum fourteen months after receiving the petitions. (44) The suit challenged the Secretarys lack of response to the petitions as well as the Beef Boards use of assessment monies to discourage producers from signing the petition. (45) Several independent producers, as well as Nebraska Cattlemen, Inc., intervened on behalf of the Beef Act and the Beef Order. (46) However, the Court decided United States v. United Foods, Inc. (47) while this case was pending. (48)
In United Foods, the Court struck down "the materially identical mushroom promotion program" as violative of the First Amendment. (49) With this decision in its favor, Livestock Marketing Association then amended and broadened its complaint to allege that the Beef Act and Beef Order violated the First Amendment by requiring all cattle producers and cattle importers to pay an assessment to fund generic advertising. (50) After a two day bench trial, the District Court for the District of South Dakota concluded that the Beef Act and Beef Order unconstitutionally compelled the respondents to subsidize speech to which they objected. (51) The court also rejected the governments claim that the checkoff should survive First Amendment scrutiny simply because it only funds government speech. (52) The district court also concluded that the generic advertising was not government speech because the advertising was funded by the checkoff rather than by general tax revenue. (53) The court held, in the alternative, that even if the expression at issue was government speech, that alone would not preclude First Amendment scrutiny in the area of compelled speech. (54) Furthermore, the district court surmised that the USDA only has "ministerial oversight" over the Beef Board and that the Board is composed of private individuals. (55) The court believed both of these factors weighed against allowing the government to label the advertisements as government speech. (56) In coming to its conclusion, the district court did not apply the intermediate scrutiny analysis as set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission (57) because the court believed such an analysis is applicable only to restrictions on commercial speech and not to the compelled funding of speech. (58) The court also held that the Beef Act could not be sustained as being "germane to a broader regulatory scheme." (59) In determining that United Foods controlled, the district court concluded that "the principal object of the beef checkoff program is the commercial speech itself." (60) A declaratory judgment finding the Beef Act and Beef Order unconstitutional was entered and the Beef Board was enjoined from collecting any further assessments. (61)
The government appealed and the Eighth Circuit Court of Appeals affirmed. (62) Before affirming the lower court, the Eighth Circuit undertook an independent review of the record and agreed with all material findings of fact. (63) The Eighth Circuit did not dispute whether the generic advertising was government speech, but rather it held that the "government speech status is relevant only to First Amendment challenges to the speechs content, not to challenges to its compelled funding." (64) The court of appeals further "held that Central Hudsons intermediate scrutiny standard provides the appropriate framework for assessing the constitutionality of such compelled funding." (65) Finally, the Eighth Circuit agreed that "the Beef Act is, in all material respects, identical to the Mushroom Act at issue in United Foods, and that its principal object is speech itself[;]" therefore, the Beef Act was again deemed to be unconstitutional. (66)
The government appealed again and the U.S. Supreme Court granted certiorari. (67) A 6-3 majority of the U.S. Supreme Court reversed and upheld the constitutionality of the Beef Act and the Beef Order. (68) Justice Antonin Scalia delivered the opinion of the Court, joined by Chief Justice William Rehnquist, and Justices Sandra Day O'Connor, Clarence Thomas, and Stephen Breyer. (69) Justices Thomas and Breyer also filed concurring opinions. (70) Justice Ruth Bader Ginsburg filed an opinion concurring in judgment. (71) Finally, Justice Anthony Kennedy filed a dissenting opinion, and Justice David Souter also filed a dissenting opinion to which Justices Stevens and Kennedy joined. (72)
Writing for the majority, Justice Scalia found the Beef Act and Beef Order to be constitutional. (73) He noted that the Court had previously sustained challenges to compelled-speech and compelled-subsidy cases. (74) Justice Scalia conceded, however, that the Court had never before analyzed whether government compelled subsidy of government speech was unconstitutional. (75)
Justice Scalia noted that the Court had originally "invalidated an outright compulsion of speech" in 1943. (76) Again in 1977, the Court held that New Hampshire could not force people to bear the States motto on their vehicles license plates. (77) Justice Scalia indicated that the rationale behind "these compelled-speech cases has been carried over to certain instances in which individuals are compelled not to speak, but to subsidize a private message with which they disagree." (78)
Justice Scalia next addressed the outcome of the recent compelled-subsidy challenge case where the court invalidated the mushroom checkoff, which was facially very similar to the beef checkoff. (79) Scalia noted, however, that United Foods was decided under the precedent of Abood v. Detroit Board of Education (80) and Keller v. California State Bar Ass'n (81) with the assumption that the speech was private. (82) The Court then explained the seemingly inapposite outcomes in the mushroom checkoff case and Glickman v. Wileman Bros. & Elliott, Inc. (83) In United Foods, the mushroom checkoff case, the Court relied on Abood and Keller, in holding that a compelled-subsidy was "acceptable only if it [was] 'germane' to a 'broader regulatory scheme.'" (84) The mushroom checkoff failed this germaneness requirement. (85) In Glickman, however, mandatory assessments funding generic advertising of California tree fruits were upheld because a broad regulatory system was already in place. (86) The Court rested this differentiation on the notion that "[its] compelled-subsidy cases have consistently respected the principle that '[c]ompelled support of a private association is fundamentally different from compelled support of government.'" (87)
Next, Justice Scalia addressed each of the arguments asserted by Livestock Marketing in support of its basic challenge to the promotional campaigns. (88) Livestock Marketings basic challenge was that the advertisements were different "from the type of government speech that ... is not susceptible to First Amendment challenge." (89) Scalia reasoned that the advertisements were "effectively controlled by the Federal Government itself." (90) The Court then addressed and disposed of Livestock Marketings argument that the beef checkoff did not constitute government speech because it was based on a targeted assessment of beef producers rather than general tax revenues. (91) The Court iterated that "respondents enjoy no right not to fund government speech-whether by broad-based taxes or targeted assessments, and [regardless of] whether or not the reasonable viewer would identify the speech as the governments." (92)
Justice Thomas concurred in the Courts opinion, emphasizing that any compelled-subsidies must be subjected to the most rigorous scrutiny under the First Amendment. (93) Justice Thomas also emphasized, on the other hand, that all taxpayers cannot possibly have a valid First Amendment objection to compelled-subsidies, even if the speech is not germane to some broader regulatory scheme. (94) He surmised that the case at hand is distinguishable from West Virginia Board of Education v. Barnette (95) because, in his opinion, being compelled to subsidize the governments speech is not nearly as intrusive as being compelled to set forth an unwanted message oneself. (96) Justice Breyer also concurred in the Courts opinion. (97) He noted that this beef checkoff case was "virtually identical to the mushroom checkoff program ... which the Court struck down on First Amendment grounds." (98) It was noted, nevertheless, that the government speech argument was not made in United Foods. (99) Justice Breyer admitted that he had dissented in United Foods on the basis that he believed the assessments were a form of economic regulation rather than speech, even though other members of the bench disagreed. (100) Breyer noted that the government speech theory provided a solution to the problems in these cases and allowed him to reach the same result even though he sided with the economic theory set forth in his United Foods dissent. (101)
Justice Ginsburg concurred in the Courts judgment but not in its rationale. (102) She opposed labeling the advertisements as government speech "given the message the Government conveys in its own name." (103) Ginsburg thought the assessments such as the ones in Johanns, United Foods, and Glickman all "[qualified] as permissible economic regulation." (104) Justice Souter dissented, joined by Justices Stevens and Kennedy. (105) Souter found the complaint of the ranchers to be "on all fours" with the mushroom growers in United Foods, in which a "similar statutory exaction was struck down as a compelled subsidy of speech prohibited by the First Amendment absent a comprehensive regulatory scheme to which the speech was incidental." (106) Souter, in discussing why the Court was mistaken in accepting the government speech argument, explained how the government is allowed to use the government speech doctrine to compel a subsidy but should not be allowed to do so unless it is also required to take ownership of the speech. (107)
Therefore, Souter would have affirmed the court of appeals in holding the Act unconstitutional. (108) Souter proceeded to discuss the two lines of precedent from which Johanns descends. (109) The first line, West Virginia Board of Education v. Barnette and Wooley v. Maynard (110) stand for the proposition that the government is not allowed to force individuals to speak or otherwise convey a message with which they disagree. (111) The second line, Keller v. State Bar of California and Abood v. Detroit Board of Education stand for the proposition that the government is not allowed to force targeted individuals to speak without a significant, governmental reason. (112)
Furthermore, Justice Souter in his dissent recognized that "[t]he government-speech doctrine is relatively new, and correspondingly imprecise." (113) Typically, in most of the cases where the Court has mentioned the government speech doctrine, it has only been generally noted that the government has the right to tax parties against their protest. (114) Even at this time in the doctrines development, two firm points have been established. (115) The first point is that the government has a legitimate need to speak to maintain government operation even in light of citizen opposition. (116) The second point is that "the First Amendment interest in avoiding forced subsidies is served, though not necessarily satisfied, by the political process as a check on what government chooses to say." (117)
Justice Souter also discussed the difference between funding government speech with general tax revenue and funding government speech using targeted taxes. (118) He noted that there is a much greater likelihood that with targeted taxes the "interests of those singled out to pay the tax ... [and who] disagree with it[,] suffer a more acute limitation on their presumptive autonomy as speakers to decide what to say and what to pay for others to say." (119) Since the government had effectively "masked its role in producing the ads" by attributing the advertisements to "Americas Beef Producers," the dissenting justice argued that there was a lack of effective public accountability, therefore the ranchers should prevail. (120) Furthermore, Justice Souter disagreed with the Courts analysis which focused on the government controls over the beef advertisements as equaling political accountability. (121) Souter believed the political accountability was void of meaning if the government was not also required to communicate that it was behind the advertisements. (122) Souter eloquently argued that it should not be up to taxpayers to discover for themselves that the government is behind the beef advertisements. (123) He believed there needed to be a "practical opportunity" for people to respond via the political process. (124)
A. THE HISTORY AND DEVELOPMENT OF THE FIRST AMENDMENT
The Greek city-state of Athens was the first society on record to adopt the conceptions of democracy and freedom. (125) As Athenian democracy collapsed, however, many of the freedoms that had developed crumbled as well, including freedom of speech. (126) Similarly, American society has long struggled to define and classify what freedoms are intrinsic to its people. (127) While America declared its independence on July 4, 1776, it did not guarantee the freedom of speech until the ratification of the Bill of Rights on December 15, 1791, nearly fifteen years later. (128) Since that time there have been many developments in the free speech arena and "[a]s a legal principle and as a fundamental feature of the American republic, freedom of speech has faced challenges but has [always] adapted in accord with events in American history." (129)
B. FIRST AMENDMENT FREE SPEECH AND EXCEPTIONS THERETO
The First Amendment states in pertinent part, "Congress shall make no law ... abridging the freedom of speech...." (130) It has been said that protecting the freedom of speech is imperative to democracy because it is a requisite to informed voting. (131) Furthermore, freedom of speech encourages the advancement of the arts and sciences as well as promotes development in the individual. (132) Although free speech is imperative to a democratic form of government, the Founding Fathers also recognized that free speech must have some boundaries. (133) Subsequently, throughout our history many types of "speech" have been found to not warrant First Amendment protection. (134) Defining and discovering the boundaries of free speech has been an ongoing process throughout American history. (135)
Although throughout Americas history Congress had passed laws regarding the freedom of speech, the United States Supreme Court first became involved in modern free speech jurisprudence around the time of World War I. (136) In these early cases involving the prosecution of socialists and anarchists speaking in opposition to the United States entry into World War I, the Court overwhelmingly chose to favor protecting the governments interests over individuals free speech. (137) Even though the Court in Schenck v. United States (138) ultimately upheld the Espionage Act, Justice Holmes in his landmark dissent set in motion the wheels of change by "implicitly proposing" that the Court should distinguish different types of speech and "then apply different tests for each." (139) Then in Abrams v. United States, (140) a similar case from the same year in which the Court again upheld the constitutionality of the Espionage Act, Justice Holmes eloquently dissented. (141) He posited that "the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market...." (142) Holmes further warned that the Court "should be eternally vigilant against attempts to check the expression of opinions that [it] loathe[s] and believe[s] to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." (143)
Although the Clear and Present Danger Test was still in regular use until 1969, another important step toward broadening free speech occurred in the 1940s. (144) In the decision of West Virginia State Board of Education v. Barnette, the Court overruled earlier precedent in holding that a child of the Jehovah Witness faith could not be compelled to salute the flag and recite the Pledge of Allegiance. (145) Notably, the majority found that to compel a person to salute the flag and recite the pledge would require an affirmation "of a belief and an attitude of mind." (146) Furthermore, the Court noted that upholding the compulsory flag salute would affirmatively acknowledge "a Bill of Rights which guards the individuals right to speak his own mind, [but yet] left open to public authorities to compel him to utter what is not in his mind." (147)
In the late 1970s, Wooley v. Maynard was another substantial development in modern free speech cases. (148) George Maynard, a Jehovahs Witness, violated a 1969 New Hampshire statute which made it a misdemeanor to obscure any letters or numbers of the license plate when, in 1974, he began covering up the "Live Free or Die" motto on his license plate because he and his wife considered it to be "repugnant to their moral, religious, and political beliefs...." (149) By early 1975, Maynard had been issued three citations in just over five weeks for not displaying the state motto on his license plate. (150) His prayer for an injunction and declaratory relief against the enforcement of the statute was granted by the district court. (151)
The U.S. Supreme Court upheld the injunction and declaratory relief, with the majority articulating that the difference between compelling the affirmative act of saluting a flag and the more passive act of requiring someone to display the state motto on a license plate is only one of degree. (152) In its analysis, the majority weighed the Maynards First Amendment interests against the states two countervailing interests of facilitating vehicle identification and promoting "appreciation of history, individualism and state pride." (153) Ultimately, although the majority acknowledged that these were legitimate state interests, it said that the means by which such an interest is upheld cannot be so broad as to suppress fundamental rights when the same result can be achieved by less drastic means. (154)
Abood v. Detroit Board of Education was heard by the Court during the same term. (155) At issue in this case was state legislation authorizing a union representation system of municipal government, known as an "agency shop" agreement. (156) This agreement required every employee who was represented by the union to be a union member and pay the regular union dues, or if not a member of the union, to pay a "service fee" equal to the union dues. (157) The Court reexamined precedent to determine whether an agency shop provision in a collective-bargaining contract involving government employees was constitutionally valid. (158)
The Court noted that in Railway Employes' [sic] Department v. Hanson, (159) the Nebraska Supreme Court had upheld an injunction granted to a group of railroad employees against enforcement of a union shop agreement on the basis of deprivation of freedom of association under the First Amendment. (160) The U.S. Supreme Court reversed on appeal however, concluding that Congress had the authority to determine whether it would promote "peaceful labor relations" by allowing a union and an employer to decide whether to require employees who received the benefit of union representation to pay a share of its cost. (161)
Quite notably, the Court mentioned that the record in Hanson presented no evidence of using union dues to force "ideological conformity" or suppress the freedom of employees to express their own views. (162) The Court also acknowledged that if the union dues had been imposed to support activities not germane to collective bargaining, a different result may have been reached. (163)
In light of Abood, the Court also found itself having to reexamine its decision in International Ass'n of Machinists v. Street. (164) Upon reexamination, the Court noted that in Machinists, the record indicated the employees had been required to pay money into the union treasury which subsequently used money from the treasury to support political campaigns and other political and economic ideologies in opposition of some employees. (165) Although the Court noted that compelling employees to support a union representative does implicate their First Amendment rights, it found that "such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress." (166) Although the government in Abood argued that Hanson and Machinists should not be controlling because those cases involved private employment as opposed to government employment, the Court quickly dismissed these claims explaining that these differences "simply do not translate into differences in First Amendment rights." (167) The employees argued that the government had prohibited them from refusing to associate, and that this prohibition was in violation of the First Amendment. (168) The employees also argued that the union should be prevented from using their service fees to fund political candidates and express political views outside the scope of acting as the exclusive bargaining agent. (169) The Court concluded that both arguments were meritorious and held that the government cannot, as a condition of employment, require a government employee to associate for the purpose of advancing ideological or political beliefs as this is violative of the employees freedom of association under the First Amendment. (170)
In 1980, the Court decided to provide commercial speech with some level of protection, though still lower than that of other types of speech, in the landmark decision of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. (171) The Public Service Commission ordered electric utility companies to stop any promotional advertising of electricity in December 1973, due to an energy shortage. (172) Three years later, after the fuel shortage let up, the Commission extended the prohibition in a policy statement over the objections of Central Hudson Gas and Electric Corp. (173) The Corporation challenged the Commission in state court arguing that the Commission had violated the First and Fourteenth Amendments by restraining commercial speech. (174) The Commissions order was upheld at the trial court level, at the intermediate appellate level, and by the New York Court of Appeals. (175) On appeal to the U.S. Supreme Court, the majority noted that the protection afforded commercial speech turns on the nature of the expression and the governmental interest involved. (176) Commercial speech generally merits less protection than other forms of speech. (177) The Court coined a four-part test for analyzing the protection afforded commercial speech. (178) First, it must be determined whether the speech is protected under the First Amendment by person to contribute to the collective bargaining efforts of a labor union. Id. Justice Stevens also wrote examining whether the speech is lawful and not misleading. (179) Then, the governmental interest must be weighed to determine if it is substantial. (180) If these first two questions are answered in the affirmative, then the regulation is evaluated to consider whether it directly advances the governments interest and is no more extensive than necessary. (181) The Court then proceeded to apply the four-part test to the arguments favoring the Commissions ban on promotional advertising. (182) It determined that the complete suppression of the Corporations advertising was in violation of the First and Fourteenth Amendments and therefore reversed New Yorks highest court. (183)
Then in 1990, the Court decided the landmark compelled association case Keller v. State Bar of California. (184) Twenty-one members of the California State Bar brought a suit alleging violations of the First and Fourteenth Amendments by the State Bar for using membership dues to finance ideological and political activities with which the members disagreed. (185) The California Supreme Court held that since the State Bar was a state agency it could use the dues for any purpose within its regulatory scheme. (186) The U.S. Supreme Court agreed that lawyers could be required to join the State Bar and pay dues but not if these dues are used to fund political or ideological activities to which the lawyers were opposed. (187) The Court noted that the State Bar is a "good deal different" than most other governmental agencies because it does not receive its primary funding through legislative appropriation, but from dues collected from members. (188) The Court stated that, on the other hand, the State Bar and its members are analogous to an employee union and its members. (189) The Court concluded that the "State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members.... [but] [i]t may not ... fund activities of an ideological nature which fall outside of those areas of activity." (190) However, since the state courts did not address the request to enjoin the State Bar from using its name to support political or ideological activities, the Court refused to address the issue but conceded it could be addressed on remand. (191)
In 2000, the Court again addressed the constitutionality of an activity fee program "designed to facilitate extracurricular student speech at a public university" in Board of Regents of the University of Wisconsin System v. Southworth. (192) Southworth and others brought suit alleging a First Amendment violation by the University of Wisconsin because it imposed a compulsory student activity fee which was used to support the political and ideological expression of certain student organizations. (193) The district court and the Seventh Circuit Court of Appeals found the program unconstitutional. (194) The U.S. Supreme Court reversed, concluding that a public university is allowed to charge students an activity fee and then use the proceeds to fund programs which "facilitate extracurricular student speech if the program is viewpoint neutral." (195) The Court did, however, hold that although the "viewpoint neutrality requirement of the University program is in general sufficient to protect the rights of the objecting students[,] [t]he student referendum aspect ... for funding speech and expressive activities ... appears ... inconsistent with the viewpoint neutrality requirement." (196)
C. THE DEVELOPMENT OF THE LAW SURROUNDING GOVERNMENT SPEECH
Case law developments in the narrower government speech arena are relatively fewer in number and more recent in time. (197) One of the first significant developments in the government speech arena occurred in the 1991 case of Rust v. Sullivan. (198) Then in 1997, the Court addressed the first of three agricultural commodity checkoff cases which have occurred in recent years. (199) The first, Glickman v. Wileman Bros. & Elliott, Inc., involved the California tree fruits checkoff. (200) Producers, handlers, and processors of California tree fruits challenged regulations which imposed assessments on respondents to fund generic advertising of California tree fruits. (201) The district court upheld the marketing orders and ordered the respondents to pay $3.1 million in past due assessments. (202) In applying the Central Hudson Test, the court of appeals concluded that the first prong was met because the government interest was substantial, but the second and third prongs were not met, and thus the compelled subsidization of generic speech violated the respondents commercial speech rights. (203) The U.S. Supreme Court, however, applied the "germaneness" test from Abood and Keller and found that the "generic advertising ... [was] unquestionably germane to the purposes of the marketing orders and ... the assessments [were] not used to fund ideological activities." (204) The Court concluded that it was dealing with a "species of economic regulation" which should be entitled to a "strong presumption of validity" regardless of whether some producers disagree. (205)
Justice Souter dissented, joined by Chief Justice Rehnquist and Justice Scalia, and in part by Justice Thomas. (206) Souter believed that in addition to Abood there should be two other basic principles of First Amendment law used to analyze this case: Primarily, unless speech falls into a category like obscenity it should receive some level of protection and, secondly, that "protected speech may not be made the subject of coercion to speak or coercion to subsidize speech." (207) Souter also did not find Abood as permissive as the majority; he indicated that although Abood and Keller dealt with political or ideological speech, nothing in those cases indicated that when the "government neither forbids speech nor attributes it to an objector, it may compel subsidization for any objectionable message that is not political or ideological." (208) Then in 2001, in United States v. United Foods Inc., the Court confronted the same problem in a very similar case but reached a different result. (209) At issue in United Foods was whether the mandatory assessments imposed under the mushroom checkoff were violative of mushroom producers First Amendment rights. (210) The district court granted summary judgment to the government but the Sixth Circuit Court of Appeals reversed because it found that, unlike in Glickman, there was no comprehensive statutory program for agricultural marketing. (211) The U.S. Supreme Court affirmed the court of appeals. (212) The Court noted, as it compared the program in United Foods to that in Glickman, that the advertising in United Foods was "far from being ancillary, [it] [was] the principal object of the regulatory scheme." (213) The Court recognized that, "[it has] not upheld compelled subsidies for speech in the context of a program where the principle object is speech itself.... [Here, the] compelled contributions for advertisements are not part of some broader regulatory scheme." (214) Although the government brought forth the issue of government speech on appeal, because it had not done so in the lower courts, the Court declined to hear any government speech arguments. (215)
Justice Stevens concurred and noted that in a situation where a person has already surrendered, either voluntarily or via permissible compulsion, to a "collective entity" there is not a significant constitutional issue so long as the compelled subsidization is "ancillary to the main purpose of the collective program." (216) On the other hand, when liberty has not been surrendered to a comprehensive regulatory scheme and all that is at issue is commercial advertising, then compelled subsidization raises a constitutional issue. (217) Stevens concluded:
[I]t [is] clear that government compulsion to finance objectionable speech imposes a greater restraint on liberty than government regulation of money used to subsidize the speech of others. Even in the commercial speech context ... it [is] entirely proper for the Court to rely on the First Amendment when evaluating the significance of such compulsion. (218)
Justice Thomas concurred to reiterate his view that "'paying money for the purposes of advertising involves speech, and that 'compelling speech raises a First Amendment issue just as much as restricting speech.'" (219) He believed that all regulation that compelled funding of speech "must be subjected to the most stringent First Amendment scrutiny." (220)
Justice Breyer dissented and was joined by Justice Ginsburg and, in part, by Justice OConnor. (221) Breyer believed that the majority erred in its analysis of the case and applicable precedent. (222) He disagreed with the majority that United Foods was distinguishable from Glickman. (223) Breyer believed that this regulatory program was simply a type of economic regulation similar to Glickman. (224) He articulated that even if the speech in this case was classified as "commercial speech" and a "somewhat more stringent standard" was applied, the same result should be reached. (225)
It is recognizable from the compelled speech and compelled subsidy precedent that the courts have struggled with defining the boundaries of the First Amendment protections to these categories of speech and the various exceptions thereto. (226) Furthermore, the government checkoff cases in general, and Johanns in particular, demonstrate the complexity and evident disagreement over the government compelling a targeted group of people to subsidize its speech. (227) This complexity and disagreement leave many questions unanswered and ripe for conjecture. (228) Unfortunately, instead of clarifying the government speech doctrine and setting boundaries to its application, the Court, through its flawed analysis of precedent and weak reasoning, only compounded the problem and will have to revisit this issue in the future to provide more clarity. (229)
In the early 1990s, the U.S. Supreme Court established the doctrine of government speech. (230) More recently, the Court has addressed three compelled subsidy or "checkoff" cases and reached differing and sometimes seemly inapposite results, at least in substantial part, because of the government speech doctrine. (231) The Court missed an opportunity in Johanns to designate outer parameters to the government speech doctrine. (232) Unfortunately, without more definitive parameters this doctrine may become a dangerously broad defense to the government compelling citizens to subsidize objectionable speech and expression without the slightest invocation of the standard First Amendment protections. (233)
Each court that heard the Johanns case examined the same set of facts, applied a different test, and then supported its own ultimate conclusion through the use of conflicting rationales. (234) Even the Supreme Courts majority opinion, concurrences, and dissents could not agree on the rationale for overturning or upholding the constitutionality of the beef checkoff. (235) Generally, First Amendment freedoms such as the freedom of speech are given a "preferred position" because of their "preservative" nature toward other freedoms that are central to the development and maintenance of a democratic society. (236) On the other hand, there is little dispute that the government must be able, at least at times, to voice its opinion over the dissent of tax-paying citizens. (237) This is because "[d]emocratic governments must speak, for democracy is a two-way affair." (238) Otherwise a democratic government would not be able to operate effectively and could be brought to a standstill by a small group of dissenting citizens. (239) Nevertheless, in Johanns, the majority reached an incorrect result through the use of flawed reasoning and misinterpretation and disregard of precedent. (240)
A. FAILURE TO RECOGNIZE THE DIFFERENCE BETWEEN GENERAL TAXATION AND THE CLOSER NEXUS CREATED BY SPECIFIC TAXATION OF A SMALL GROUP
In its decision, the Court opined that there was no difference between funding government speech with general taxes or with targeted assessments. (241) The Court relied on United States v. Lee, (242) and in effect, compared the targeted assessment in Johanns to the Social Security tax in Lee. (243) However, as Souter pointed out in his dissent, the Court disregarded the guidance offered by Mellon v. Massachusetts, (244) which discussed the relational difference between broad, general taxes and more specific, targeted taxes which create a closer nexus between the taxed and the government. (245) In addition, Souter contended that the Court altogether misconstrued Lee to give it greater breadth than what the Court should have given it. (246)
In Lee, the Court recognized that its holding might not apply to all other cases when it stated that "[t]here is no principled way ... for purposes of this case, to distinguish between general taxes and ... Social Security [taxes]." (247) Furthermore, even in Lee, the Court weighed Lees interest against those of the government. (248) On the other hand, in Johanns the majority absolutely refused to use any type of balancing test but instead simply called the advertisements government speech. (249) The plurality also focused in on Lee for the proposition that there was no way to differentiate between any harm caused by general taxes or "those imposed under the Social Security Act." (250) However, the Court overlooked an important point here while it used Lee in an attempt to buttress its argument. (251) The Social Security Act is readily distinguishable from the Beef Act because, although both are set by statute, the federal government is clearly the entity behind the Social Security Act, unlike in the beef ads which obscure the governments role. (252)
Furthermore, government use of a general tax to fund its speech is easier for citizens to accept because all are more equally affected and there is more "democratic accountability." (253) For example, with the Social Security Act at issue in Lee, the majority of people paid Social Security taxes so if they were outraged by the taxes, they had a true ability to hold the government politically accountable whereas beef producers are an extreme minority. (254) Also equally important, the government was not hiding behind the Social Security taxes as it made no facade about where those assessments were coming from. (255) This is quite distinguishable from the beef ads where the government "allowed" the ads to appear as though they were coming from American beef producers. (256)
Unfortunately, the Court ignored the common sense guidance offered by Mellon, which would have lent more direction to the situation in Johanns than what Lee did. (257) Relying on the Mellon holding, Justice Souter explained in his dissent that "when government funds its speech with general tax revenue ... no individual taxpayer or group of taxpayers can lay claim to a special, or even a particularly strong, connection to the money spent (and hence to the speech funded)." (258) More significantly, however, Souter also noted that this "relative palatability ... is not to be found when the speech is funded through targeted taxes." (259) The government must make sure that there is actual, adequate political accountability if it wants to invoke the government speech defense while compelling a small group of people to subsidize objectionable speech because the "acute limitation on their presumptive autonomy as speakers to decide what to say and what to pay for others to say" is much greater. (260)
B. LACK OF POLITICAL ACCOUNTABILITY ON THE PART OF THE GOVERNMENT SHOULD RENDER IT UNABLE TO CLAIM THE GOVERNMENT SPEECH DEFENSE
No one disputes that at times the government has a right to levy taxes even to fund objectionable speech. (261) The caveat, however, is that the government must be politically accountable. (262) Although the majority emphasized that the Secretary is a politically accountable figure, the Secretarys political accountability is tenuous at best. (263) The Secretary, far from answering to any electorate, is appointed by the President of the United States and confirmed by the United States Senate. (264) Together, "the targeted nature of the assessment and the fact that the government did not take responsibility for its advertisements stymied the ability of the political process to serve as an effective check on the government." (265) This also brings forth another problem with using targeted assessments rather than general taxes to fund government speech. (266) It would be very difficult for a relatively minute group of affected individuals to hold anyone politically accountable because the large majority of people would remain unaffected. (267) When the "majority of citizens need not pay into the fund and cannot transfer the proceeds to other spending measures [like general tax revenues], they have little incentive to monitor the activity." (268) The lack of monitoring, in turn, makes it easier for the government to "obscure" the fact that the government is the proponent of the advertisements. (269)
Furthermore, considering that the beef producers in the case at hand could not even get the referendum they had petitioned for within the timeline set by statute, it is doubtful they could hold any such figure "politically accountable." (270) In addition, the Beef Board actually used funds generated by the checkoff in an attempt to stifle the dissenters effort to force a referendum. (271) The majority also emphasizes the Secretarys "control" over the program, overlooking the finding by the district court that the Secretary was, in essence, a "rubber stamper." (272)
In addition, if the government wants to invoke the government speech doctrine, it should be required to "show its hand" as argued by the principle dissent to clearly identify the advertisement as the product of a federal program. (273) Scholars have advanced that the "risks to First Amendment interests arise not from the substance of the government expression, but from the means used in making and communicating it." (274) By not being required to "show its hand," the government is being deceptive and effectively distorting the market place of ideas. (275) The government speech doctrine should only be extended to "purposeful action by [the] government, expressing its own distinct message, which is understood by those who receive it to be the governments message." (276) The majority states that nothing "prevents the government from identifying itself as sponsor of the ads-much less requires concealment" but this should not be the test. (277) The government did not identify itself but instead made the ads look like they were voluntarily put forth by Americas Beef Producers. (278) The majority goes further to say that the message was not attributable to any of the respondents and that no individual respondent or organization would be mistaken for being "Americas Beef Producers." (279) However, this rationale is unsound as well, because the respondents are American beef producers, and it is not a leap of faith to understand how citizens could confuse "Americas Beef Producers" with the actual American producers of beef. (280)
C. THE GOVERNMENT SPEECH DOCTRINE SHOULD BE INAPPLICABLE TO COMMERCIAL SPEECH GENERALLY
Admittedly, in order to effectively operate, the government must have the ability to express its ideas and tax its citizens, even against the objection of dissenters. (281) However, the use of the government speech doctrine to execute legislative or executive functions is distinguishable from its use in "the realm of commercial speech." (282) Furthermore, even though the Court in Johanns expressed 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" the same inevitability does not exist in the commercial sector. (283) In addition, although Justice Ginsburg argued in her concurrence in Johanns that these agricultural checkoffs are a type of economic regulation, that argument ignores the deeper compelled speech issue. (284) There is not adequate justification for the invocation of the government speech doctrine and the blatant disregard for First Amendment protections when there are so many readily available ways to regulate economic activities without risking First Amendment infringement. (285)
There are a number of adequate "permissible" avenues for the government to partake in economic regulation without resorting to a forced targeted assessment to fund objectionable commercial speech. (286) In addition, the government should not "supplant or usurp private companies in their strategic business enterprise." (287) Instead the government should act as a "neutral referee." (288) Furthermore, if the Court limited the government speech doctrine so as to exclude commercial messages from its applicability, then the doctrine would begin to have some outer boundaries and yet the government would still not be hindered in its essential political functions. (289) Finally, excluding commercial speech from the government speech doctrine would eliminate much of the distortion of the "marketplace of ideas" because a politician setting forth a particular message on the television is less likely to be misattributed than a commercial advertisement urging consumers to eat beef. (290) After all, like Justice Souter explained in his dissent, "[n]o one hearing a commercial for Pepsi or Levis 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?" (291)
D. THE GOVERNMENT NEEDLESSLY FAILED TO FOLLOW ITS OWN PRECEDENT AND ONLY CREATED GREATER PERPLEXITY
After the decision in United Foods, it became evident by the lower courts varied decisions that even the legal community was confused over the application of the United Foods and Glickman precedent. (292) Unfortunately, instead of helping matters by setting forth a definitive test that would have been applicable in at least most situations, the Court further obscured matters by simply holding that the government can readily invoke the government speech doctrine whenever it desires, without giving even the slightest notice to the First Amendment protections typically accorded to speech. (293) Instead the Court would have been better served to apply either the germaneness test as applied by the district court or the "modified" Central Hudson analysis of the Eighth Circuit Court of Appeals. (294)
It would have been logical for the Court to follow the Abood and Keller line of precedent and apply the germaneness test just as the Court applied in Glickman. (295) On this basis, the Court would have likely found the beef checkoff to be unconstitutional in the same way the district court did, because the speech in Johanns was not germane to a broader regulatory scheme but instead was simply for the sake of advertising. (296) The only reason Glickman was upheld was because the compelled subsidy therein was already part of a broad regulatory scheme in which autonomy had already been effectively eliminated. (297) Likewise, it should be noted that in Keller the State Bar did make the government speech argument and the Court discarded the argument because the State Bar did not have the characteristics of a government agency. (298)
In the alternative, the Court could have also applied a "modified" Central Hudson test as the Court of Appeals for the Eighth Circuit did and doing so would have also lessened the confusion over the government speech doctrine instead of compounding it. (299) If it had applied the Central Hudson Test, the Court would have found that the first prong was met-that the speech concerned lawful activity and was not misleading. (300) It also would have likely found that the second prong-that the appellees had a "protected interest in avoiding being compelled to pay for the expression at issue[,]"-was fulfilled. (301) Then it would have examined the government interest to see if it was substantial. (302) Finally, it would have examined the checkoff program to see whether it "directly advance[d] that government interest and [was] not more extensive than necessary to serve that interest." (303) The Court would have likely found that the government interest, though substantial, was not substantial enough to outweigh the appellees First Amendment free speech rights and was more extensive than necessary to serve the governments interests in advertising beef. (304)
Nevertheless, the germaneness test may have been the best alternative as it seems to have stronger precedential roots than the modified Central Hudson Test. (305) On the other hand, as the Court of Appeals for the Eighth Circuit noted, the compelled subsidy cases could be viewed as a "subset" of compelled speech cases making the Central Hudson Test at least somewhat more acceptable. (306) If the Court had applied this test it would have likely also found the beef checkoff unconstitutional because the governments interest was not "sufficiently substantial" to justify infringing on the beef producers First Amendment rights and may have also been found to be more extensive than necessary. (307)
In Johanns v. Livestock Marketing Ass'n, the United States Supreme Court went out of its way to uphold the beef checkoff by broadening the government speech doctrine to a point that is all-encompassing. The Court would have been better served to recognize that although the government does have the right to compel funding of its speech, political accountability, a prerequisite for the invocation of this defense, was lacking. Instead, the Court ignored common sense and misconstrued precedent and then reversed the lower courts, giving the government free rein to compel subsidization of any government message, regardless of whether the government takes ownership of the message, or instead allows attribution to another group.
The Court effectively condoned the governments use of deception in this case. By not requiring the government to stand behind its own message and to take ownership of it, the Court allowed the "marketplace of ideas" to become distorted. Furthermore, the beef producers First Amendment rights to not speak and to not associate were infringed upon without any concern for the "standard" First Amendment protections usually afforded such rights. The Court would have been better served to utilize the modified Central Hudson Test as used by the court of appeals. Although the Court in applying this standard may have found that the government did have a substantial interest in promoting the beef industry, the Court would have also likely found that the governments interest was not so substantial as to outweigh the appellees free speech rights. In addition, the Court would have also likely found the governments means to be more extensive than necessary to serve the governments interests in promoting beef. Moreover, this intermediate scrutiny standard would have allowed for a reasonable balancing between the governments need to compel funding for its speech and the protection of private citizens rights to not speak and not associate. The Court would have not only reduced confusion in this area but also would have set at least some outer parameters to the government speech doctrine. Instead the Court will likely have to revisit this issue again in the near future. Unfortunately, until then, lower courts and the American people are left wondering how far government speech can go.
(1.) See Johanns v. Livestock Mktg. Assn, 544 U.S. 550, 554 (2005). The Court noted that "Beef. Its Whats for Dinner." is a familiar trademarked slogan used in many of the generic advertisements. Id.
(2.) See id.
(3.) 544 U.S. 550 (2005).
(4.) Id. at 553-66.
(5.) U.S. CONST. amend. I. The First Amendment reads in full: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances." Id.
(6.) DAVID CRUMP, EUGENE GRESSMAN, DAVID S. DAY, CASES AND MATERIALS ON CONSTITUTIONAL LAW 840-41 (4th ed., 2002).
(7.) Id. For example, libel, obscenity, "fighting words," and other "unprotected utterances" are not afforded First Amendment protection. Id. Commercial speech is also afforded less protection than some other kinds of speech. Id.
(8.) See Wooley v. Maynard, 430 U.S. 705 (1977) (holding that a Jehovahs Witness had a right not to speak and therefore could not be required to display a state motto on his license plate which was morally repugnant to his religious beliefs).
(9.) See Johanns, 544 U.S. at 550.
(10.) See Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, 1380 (2001).
(11.) Johanns, 544 U.S. at 559 (citing Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000)).
(12.) Id. at 553-66.
(13.) See Rita Cain, Note, Uncle Sam Wants You-To Eat Beef? 11 DRAKE J. AGRIC. L. 165, 181 (2006).
(14.) See infra Part II.
(15.) See infra Part II.A.
(16.) See infra Part II.B.
(17.) See infra Part IV.
(18.) Brief for Federal Petitioners at 2, Veneman v. Livestock Mktg., 544 U.S. 550, (Nos. 03-1164, 03-1165), 2004 WL 1905738 [hereinafter Federal Petitioners Brief]. "Federal law establishes a beef inspection program, see 21 U.S.C. 601 et seq.[sic]; prohibits deceptive marketing and price manipulation, see 7 U.S.C. 181 et seq.[sic]; mandates price reporting, 7 U.S.C. 1635 et seq.[sic]; and imposes requirements for organically produced beef, see 7 U.S.C. 6501 et seq.[sic]" Id.
(19.) Beef Promotion and Research Act of 1985, 7 U.S.C. [sections] 2901-2918 (2000). See Johanns v. Livestock Mktg., 544 U.S. 550 (2005).
(20.) Johanns, 544 U.S. at 553. The Petitioners pointed out that: In the Beef Act, Congress found that (1) "beef and beef products are basic foods that are a valuable part of the human diet," (2) "the production of beef and beef products plays a significant role in the Nations economy," (3) "beef and beef products should be readily available and marketed efficiently to ensure that the people of the United States receive adequate nourishment," and (4) "the maintenance and expansion of existing markets for beef and beef products are vital to the welfare of beef producers and those concerned with marketing, using, and producing beef products, as well as the general economy of the Nation." Federal Petitioners Brief, supra note 18, at 2-3 (citing 7 U.S.C. [sections] 2901(a)(1)-(4)).
(21.) Johanns, 544 U.S. at 553-54 (citing 7 U.S.C. [sections] 2904(4)(A)). The Beef Act and Beef Order established two governing bodies, the Beef Board and the Operating Committee. Federal Petitioners Brief, supra note 18, at 4 (citing 7 U.S.C. [sections][sections] 2904(1)-(5); 7 C.F.R. [sections][sections] 1260.1411260.151, 1260.1611260.169 (2004)). There are 108 Beef Board members, each one either a cattle producer or importer, who is selected by the Secretary from the nominations submitted by the state beef associations. Id. There are also 20 Operating Committee members, half of whom are elected by the Beef Board from Beef Board members and half who are elected from the federation. Id. "That 'federation is ... the checkoff division of the National Cattlemens Beef Association (NCBA)." Brief for Respondents in Opposition at 5, Johanns v. Livestock Mktg., 544 U.S. 550 (Nos. 03-1164, 03-1165), 2004 WL 882962. "The NCBA is a private trade and political lobbying association of cattle producers that enjoys a virtual monopoly on the Beef Boards contracts for implementing and carrying out the activities authorized by the Act." Id. Only about 33,000 of the almost one million cattle producers who pay the beef checkoff belong to the NCBA. Id. at 6. The NCBA came about as the result of a desire for having "one voice" represent the beef industry, which resulted in the National Cattlemens Association merging all the federation of state beef councils into one entity. Id.
(22.) Johanns, 544 U.S. at 554 (citing 7 U.S.C. [sections][sections] 2904(8), (4)(B)-(C)). Generally speaking, checkoffs are "industry-funded generic marketing and research program[s] designed to increase domestic and/or international demand for an agricultural commodity." Joint Appendix at 101, Veneman v. Livestock Marketing, 544 U.S. 550 (Nos. 03-1164, 03-1165), 2004 WL 2308552. The desired outcome is reached through research, promotion, and other marketing tools. Id. The programs are likened to a business funded by shareholders, in this case the producers, packers, and importers, which has a board of directors that answers to the shareholders. Id.
(23.) Johanns, 544 U.S. at 554 (citing 7 U.S.C. [sections][sections] 2904(8), (4)(B)-(C)).
(24.) Id. (citing 7 C.F.R. [sections] 1260.172(a)(5)).
(25.) Id. at 554 n.1 (citing 7 U.S.C. [section] 2904(8)(C); 7 C.F.R. [section] 1260.172(a)(3)).
(26.) Id. at 554 (citing 7 U.S.C. [section][section] 2903, 2906(a)). The referendum was required by statute to be within "22 months after the issuance of the order" and required a majority approval (of referendum voters) to survive, otherwise it was to be terminated within six months of the vote. 7 U.S.C. [section] 2906(a). "After the initial referendum, the Secretary may conduct a referendum on the request of a representative group comprising 10 per centum or more of the number of cattle producers to determine whether cattle producers favor the termination or suspension of the order." 7 U.S.C. [section] 2906(b). If it is found that a majority of producers who vote in the referendum prefer termination or suspension of the order, the Secretary shall do so within six months of the vote. Id.
(27.) Johanns, 544 U.S. at 554.
(28.) Livestock Mktg. Assn v. U.S. Dept of Agric., 132 F. Supp. 2d 817, 820 (D.S.D. 2001).
(29.) Johanns, 544 U.S. at 554.
(30.) Id. at 555.
(32.) Brief for the Respondents at 2 n.3, Johanns v. Livestock Mktg., 544 U.S. 550, (Nos. 03-1164, 03-1165), 2004 WL 2362873 [hereinafter Respondents Brief]. Many of the television and print advertisements also bear the copyright of the National Cattlemens Beef Association (NCBA) and Cattlemens Beef Board. Id. "Each checkoff program is supported entirely by its respective industry, which could include U.S. producers, processors, handlers and importers. NO TAXPAYER OR GOVERNMENT FUNDS ARE INVOLVED." Id. at 28.
(33.) Johanns, 544 U.S. at 554.
(34.) Id. at 554.
(35.) Brief for Respondents in Opposition, supra note 21, at 7.
(40.) Id. "Only 10 to 12 percent of checkoff dollars remitted to the Beef Board is expended on beef research." Id. at 7 n.2. The research is designed by statute to encourage the development of new products and to do marketing research. Id. The respondent beef producers object to being forced to subsidize the generic advertisements because they feel that they are being "compelled to subsidize their own demise." Id. at 8. They would prefer to disseminate a message that American beef is superior to foreign beef. Id.
(41.) Federal Petitioners Brief, supra note 18, at 8.
(42.) Id. "Frustrations with the Act reached a boiling point in 1998, as producers found themselves paying for the checkoff on cattle sold at prices that failed to cover even the costs of production." Respondents Brief, supra note 32, at 5-6. Livestock Marketing Association then assisted some of the burdened producers to collect over 145,000 signatures on a petition in support of a referendum. Id. at 6. However, 14 months after the cumulation of these signatures the Secretary had still not succeeded in scheduling a referendum. Id.
(43.) Brief for Respondents in Opposition, supra note 21, at 8-9.
(44.) Id. at 9.
(46.) Federal Petitioners Brief, supra note 18, at 8.
(47.) 533 U.S. 405 (2001).
(48.) Federal Petitioners Brief, supra note 18, at 8.
(49.) Respondents Brief, supra note 32, at 6.
(50.) Federal Petitioners Brief, supra note 18, at 8.
(51.) Livestock Mktg. Assn v. U.S. Dept of Agric., 207 F. Supp. 2d 992, 1002 (D.S.D. 2002), aff'd, Livestock Mktg. Assn v. U.S. Dept of Agric., 335 F.3d 711 (8th Cir. 2003), rev'd sub nom., Johanns v. Livestock Mktg. Assn, 544 U.S. 550 (2005).
(53.) Federal Petitioners Brief, supra note 18, at 9.
(54.) Respondents Brief, supra note 32, at 7.
(55.) Federal Petitioners Brief, supra note 18, at 9.
(57.) 447 U.S. 557, 563-66 (1980).
(58.) Federal Petitioners Brief, supra note 18, at 9. This standard of scrutiny is commonly referred to as the "Central Hudson Test" as it was set forth in Central Hudson. 447 U.S. at 563-66. "The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interest served by its regulation." Id. at 563. "This Courts decisions on commercial expression have rested on the premise that such speech, although meriting some protection, is of less constitutional moment than other forms of speech." Id. The four-part analysis relating to commercial speech as laid out in Central Hudson, requires that:
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Id.
(59.) Federal Petitioners Brief, supra note 18, at 9. In Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997), the Court held that compelled funding of speech was acceptable only if "germane to a broader regulatory scheme." Federal Petitioners Brief, supra note 18, at 9.
(62.) Livestock Mktg. Assn v. U.S. Dept of Agric., 335 F.3d 711 (8th Cir. 2003), rev'd sub nom., Johanns v. Livestock Mktg. Assn, 544 U.S. 550 (2005).
(63.) Brief for Respondents in Opposition, supra note 21, at 9.
(64.) Johanns, 544 U.S. at 556 (citing Livestock Marketing Ass'n, 335 F.3d at 720-21). The Court held that compelled funding of speech "may violate the First Amendment even if the speech in question is the governments." Id. at 556-57 (citing Livestock Marketing Ass'n, 335 F.3d at 720-21).
(65.) Federal Petitioners Brief, supra note 18, at 10.
(66.) Brief for Respondents in Opposition, supra note 21, at 9-10.
(67.) Johanns, 544 U.S. at 556-57.
(68.) Id. at 552.
(69.) Id. at 552-67.
(70.) Id. at 567-69 (Thomas, Breyer, JJ., concurring).
(71.) Id. at 569-70 (Ginsburg, J., concurring).
(72.) Id. at 570-80 (Kennedy, Souter, Stevens, JJ., dissenting).
(73.) Id. at 552-67 (majority opinion).
(74.) Id. at 557. Compelled-speech cases involve requiring a person to express a message with which he disagreed, whereas compelled-subsidy cases involved compelling a person to fund a message put forth by a private entity with which he disagreed. Id.
(76.) Id. (citing W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943) (holding that a child could not be expelled by public school authorities for refusing to recite the Pledge of Allegiance when doing so was against the childs beliefs)).
(77.) Id. (citing Wooley v. Maynard, 430 U.S. 705, 715 (1977) (holding that requiring people to "use their private property as a 'mobile billboard for the States ideological message or suffer a penalty" amounted to impermissible compelled expression)).
(78.) Id. at 557-58 (citing Keller v. State Bar of Cal., 496 U.S. 1 (1990) (holding that while lawyers could be compelled to be a member of the state bar and pay bar dues, lawyers could not be compelled to fund speech related to political matters); Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (holding that teachers could be compelled to join a union but not compelled to pay dues used to fund political speech with which they disagreed)). Even though in each of the above cited cases, the Court found that compelled membership was acceptable, the compelled funding of speech was found to be unconstitutional since it "was not germane to the regulatory interests that justified compelled membership." Johanns, 544 U.S at 558.
(79.) Id. at 557-58.
(80.) 431 U.S. 209 (1977).
(81.) 496 U.S. 1 (1990).
(82.) Johanns, 544 U.S. at 557-58 (citing United States v. United Foods, Inc., 533 U.S. 405, 413 (2001)).
(83.) Id. at 559 n.3 (citing Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997)). There was no argument set forth in either Glickman or United Foods that the generic advertising was government speech, therefore the speech at issue was found to be acceptable. Id.
(84.) Id. at 558-59 (quoting United Foods, 533 U.S. at 413, 415-16).
(85.) Id. at 559 (citing United Foods, 533 U.S. at 415-16).
(86.) Id. at 559 n.3 (citing Glickman, 521 U.S. at 475).
(87.) Id. at 559 (citing Abood v. Detroit Bd. of Educ., 431 U.S. 209, 259 (1977) (Powell, J., concurring)). "The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies." Id. (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000)).
(88.) Id. at 560.
(89.) Id. The respondents point to the Beef Boards role as well as the Operating Committees role in creating the marketing advertisements and to the mandatory assessment on a specific group to fund the advertising. Id.
(90.) Id. The Court refused to label the Operating Committee as "governmental" or "nongovernmental" because it found the Operating Committee to be purely ancillary to the Secretary who had final say in all matters. Id. at 560 n.4. The Court also distinguished Johanns from Keller v. California State Bar Ass'n, 496 U.S. 1 (1990), saying that in Keller the "communicative activities" to which the party objected were not delineated by law or developed with government supervision, whereas in Johanns the overarching tone of the message, down to the specific words, are all approved by the government. Id. at 561-62.
(91.) Id. at 562.
(92.) Id. at 564 n.7. However, the Court admitted that if the speech would be mistakenly identified as the respondents, then there would be a different type of analysis. Id. at 564. "'Americas Beef Producers might be thought more plausibly to refer to a particular organization of beef producers, and such an organization might have a valid First Amendment objection if the ads message were incorrectly attributed to it." Id. at 566 n.11.
(93.) Id. at 567 (Thomas, J., concurring).
(95.) 319 U.S. 624 (1943).
(96.) Johanns, 544 U.S. at 568-69 (citing Barnette, 319 U.S. at 634 (holding that children in a public school cannot be forced to salute the flag and recite the Pledge of Allegiance if against their personal beliefs)).
(97.) Id. at 569 (Breyer, J., concurring).
(98.) Id. (citing United States v. United Foods, Inc., 533 U.S. 405 (2001)).
(99.) Id. (citing United Foods, 533 U.S. at 416-17).
(100.) Id. (citing United Foods, 533 U.S. at 428).
(102.) Id. 569-70 (Ginsburg, J., concurring).
(103.) Id. at 569. Ginsburg was referring to the "Dietary Guidelines for Americans 2005," as published by the United States Department of Health and Human Services and United States Department of Agriculture, in which the government suggested that Americans limit the amount of food they eat which comes from ruminant animals such as cattle, because these foods contain saturated and trans fatty acids which are considered unhealthy. Id. (citing U.S. DEPT OF HEALTH AND HUMAN SERVICES, DIETARY GUIDELINES FOR AMERICANS 30, 69 (2005), http://www.health.gov/dietaryguidelines/dga2005/document/pdf/DGA2005.pdf).
(104.) Id. at 570 (Ginsburg, J., concurring). See United Foods, 533 U.S. at 425 (Breyer, J., dissenting).
(105.) Johanns, 544 U.S. at 571 (Souter, J., dissenting). Justice Kennedy also dissented from the majority holding. Id. at 570 (Kennedy, J. dissenting). He agreed with Justice Souters dissenting opinion, stating that Souters opinion "demonstrate[d] with persuasive analysis" how the speech could not logically be considered government speech in any way. Id. Justice Kennedy also said that he would leave for another day the issue of whether the speech would have been acceptable if the government had clearly put its name on the advertisements. Id. Justice Kennedy further indicated that he would also leave for another day the issue of whether requiring a small group of people to fund government speech through advertisements would violate the First Amendment if the government plainly identified itself in the advertisements. Id.
(106.) Id. at 571 (Souter, J., dissenting). Justice Souter further noted that the Court in United Foods left open the possibility that the government could use a government speech argument, even though the Court did not in that case. Id. Justice Souter, however, was not surprised to see the government use the argument the next time the issue came up in Johanns. Id.
(107.) Id. at 571-72.
(108.) Id. Souter then discussed the similarities between the mushroom checkoff and the beef checkoff, quoting United Foods by stating, "First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors...." Id. at 572. Souter argued that it does not matter whether the disagreement with the advertisements message is only minor because there is not a requirement that it be a substantial disagreement. Id. at 572 n.2 (citing United Foods, 533 U.S. 411). Furthermore, the ranchers could have argued under Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985), that they had a right not to speak which is just as paramount and guarded by the First Amendment as the affirmative aspect of the freedom to speak. Id. (citing Harper & Row, 471 U.S. at 559).
(109.) Id. at 573.
(110.) 430 U.S. 705 (1977)
(111.) Johanns, 544 U.S. at 573.
(113.) Id. at 574.
(114.) Id. (citing Bd. of Regents of Univ. of Wis. Sys., 529 U.S. 217, 229 (2000)).
(117.) Id. at 575.
(119.) Id. at 575-76 (citing Massachusetts v. Mellon, 262 U.S. 447, 486-87 (1923); Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573 (1995)).
(120.) Id. at 577.
(121.) Id. at 578.
(122.) Id. Moreover, worse than simply not making the message apparent that the government is behind the ads, is the fact that the government is allowed to use its control to obscure its role from the voters who have the power to hold the government accountable. Id.
(123.) Id. at 579.
(125.) ROBERT HARGREAVES, THE FIRST FREEDOM: A HISTORY OF FREE SPEECH 1 (2002). Hargreaves also noted, however, that the notions of democracy and freedom were short lived. Id.
(126.) Id. Hargreaves further noted that "the very birthplace of freedom" betrayed its own esteemed principles by sentencing the famous philosopher Socrates to death because he had expressed his own beliefs. Id.
(127.) Id. at 175. In addition, Hargreaves discussed how the views of Alexander Hamilton and James Madison differed on the issue of whether there should be a Bill of Rights, with Hamilton arguing against it and Madison for it. Id. Hamilton saw no point in declaring that the federal government could not do things that it was never given the right to do in the first place. Id. On the other hand, although Madison did not personally believe that a Bill of Rights was imperative, he realized that many citizens wanted a Bill of Rights and many of the individual states would not ratify the constitution without it. Id.
(129.) JAMES MAGEE, FREEDOM OF EXPRESSION 1 (Randall M. Miller ed., 2002).
(130.) U.S. CONST. amend. I. In full, the First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Id.
(131.) CRUMP ET AL., supra note 6, at 838.
(132.) Id. at 839.
(133.) MAGEE, supra note 129, at 1.
(134.) CRUMP ET AL., supra note 6, at 840. For example, libel, obscenity, and "fighting words" that may lead to a breach of the peace are often cited as speech that is undeserving of First Amendment protection. Id.
(135.) MAGEE, supra note 129, at 1. Not long after the ratification of the First Amendment, the Alien and Sedition Acts of 1798 were passed. Id. at 2. Most notably, the Sedition Act "took aim at domestic political opponents who made 'false criticisms of government or its leaders by threatening them with arrest and, if convicted, with fines reaching $2,000 and as much as two years in prison." Id.
(136.) KEN I. KERSCH, FREEDOM OF SPEECH: RIGHTS AND LIBERTIES UNDER THE LAW 114 (2003).
(137.) Id. See Schenck v. United States, 249 U.S. 47 (1919) (upholding the conviction of Schenck under the Espionage Act for Schencks expression of his political views through the distribution of pamphlets). See, e.g., Debs v. United States, 249 U.S. 211 (1919) (upholding the conviction of Socialist labor leader and presidential candidate Debs for making an antiwar speech); Frohwerk v. United States, 249 U.S. 204 (1919) (upholding the conviction of the owners of a German immigrant newspaper for criticizing World War I); Abrams v. United States, 250 U.S. 616 (1919) (upholding the conviction of Abrams under the Sedition Act for printing and distributing leaflets attacking and calling for a strike to protest President Wilson for sending troops to Russia).
(138.) 249 U.S. 47 (1919).
(139.) KERSCH, supra note 136, at 116 (citing Schenck, 249 U.S. at 52). Charles Schenck was the secretary of the Socialist Party and had overseen the dissemination of 15,000 antidraft pamphlets that were distributed to men being drafted into World War I. Id. Schenck was arrested and prosecuted under the Espionage Act when some of the men complained to authorities. Id. Prior to this case, the Court established the "Bad Tendency Test" to decide the rare decision on free speech. Id. at 114. The Bad Tendency Test was an ancient test that allowed the government to punish people for speech that could
possibly spur illegal conduct or government obstruction. Id. Although Schenck lost before the U.S. Supreme Court in a unanimous decision, Justice Holmes outlined a new approach which eventually replaced the Bad Tendency Test. Id. Holmes suggested that political speech such as that present in Schenck should be analyzed using a "Clear and Present Danger Test." Id. at 116. This test evaluates whether the language used was used in such a manner and under such circumstances as to result in the "substantive evils" that Congress has a right to prevent. Id.
(140.) 250 U.S. 616 (1919).
(141.) Id. at 624. The Court determined that the record adequately set forth facts to uphold the convictions of the defendants, including the defendants own pamphlets which denounced capitalism, President Wilson and the American government generally, and further encouraged people to revolt against the American government to save the Russian soldiers fighting in the Russian Revolution. Id. at 619-23.
(142.) Id. at 630 (Holmes, J., dissenting).
(144.) KERSCH, supra note 136, at 32. In Brandenburg v. Ohio, the Clear and Present Danger test was modified. Id. at 33. See Brandenburg v. Ohio, 395 U.S. 444 (1969). In this period of "massive social upheaval" the Court adopted its final, most highly protective test of speech, the "Imminent and Lawless Harm Test." KERSCH, supra note 136, at 33. This test requires that speech can only be restricted if it "'is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'" Id. at 33-34 (quoting Brandenburg, 395 U.S. at 447).
(145.) W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). On January 9, 1942, the Board of Education had adopted a resolution that required salutation of the flag to be a regular part of school activities and further required that all students participate or risk being expelled. Id. at 626, 629. Barnette overturned Minersville School District v. Gobitis, which had upheld a Pennsylvania school districts requirement that students salute the flag and participate in the pledge even though this was against some students religious beliefs. Id. See Minersville School District v. Gobitis, 310 U.S. 586 (1940).
(146.) Barnette, 319 U.S. at 633.
(147.) Id. at 634. The majority also stated that: [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Id. at 642.
Justice Black and Justice Douglas agreed with the Courts opinion in essence but concurred separately to explain why they had changed their views since Gobitis. Id. at 643 (Black, Douglas, JJ., concurring). They explained that in Gobitis they were reluctant to make the Constitution a bar against state regulation of conduct the state deems contrary to its public welfare, and therefore, joined the majority in Gobitis. Id. However, after "long reflection" they decided that although the principle was proper, its application was incorrect and they believed that the statute at hand in Barnette did not provide the "full scope" of religious freedom as required by the First and Fourteenth Amendments. Id. They further noted that they saw no point in forcing someone to utter words that the person did not believe in, as an attempt to stir patriotism. Id. at 644. They remarked, "[t]he ceremonial, when enforced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy implement for disguised religious persecution." Id.
Justice Murphy also agreed with the Court in Barnette, although he wrote his own concurrence. Id. at 644-46 (Murphy, J., concurring). Murphy emphasized that the freedom of religion and thought, which is guaranteed by the Constitution, "includes both the right to speak freely and the right to refrain from speaking at all, except in so far as essential operations of government may require it for the preservation of an orderly society...." Id. at 645. Murphy also saw no logic in forcing a person to make empty gestures or recite words against a persons beliefs in an attempt to foster patriotism. Id. at 646.
Justice Roberts and Justice Reed dissented because they still agreed with the views expressed by the Court in Globitis. Id. at 642-43. (Roberts, Reed, JJ., dissenting). Justice Frankfurter also dissented, writing his own lengthy opinion. Id. at 646-71 (Frankfurter, J. dissenting). Frankfurter disagreed with his "brethren" because he believed that the Court should not overturn legislation that the State of West Virginia had recognized as "a legitimate legislative end, namely, the promotion of good citizenship...." Id. at 647. Frankfurter then indicated that the legislature, not the courts, should have decided this issue. Id. at 651. He further stated that the Constitution "terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity." Id. at 653.
(149.) Id. at 707-08. The states highest court had previously determined that "letters or numbers" included the states motto as printed on the license plate. Id. (citing State v. Hoskin, 295 A.2d 454 (N.H. 1972)).
(150.) Id. at 708.
(151.) Id. at 709.
(152.) Id. at 715. The Court distinguished between displaying a motto on a license plate and requiring certain official documents to bear a state seal, symbol, or motto to which a person may object, since the purpose of the seal, symbol, or motto in the latter instance is for purposes of authenticating the document rather than displaying to the public. Id. at 715 n.11.
(153.) Id. at 706.
(154.) Id. at 716-17 (citing Shelton v. Tucker, 364 U.S. 479, 488 (1960)). The majority went on to say that the second aforementioned state interest is not ideologically neutral and "where the States interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individuals First Amendment right to avoid becoming the courier for such message." Id. at 717.
Justice White dissented, with Justice Blackmun and Justice Rehnquist joining in part and dissenting in part. Id. at 717-22 (White, J. dissenting). White argued that a pending criminal charge, even if in violation of constitutional guarantees, should not be enjoined by a court of equity. Id. at 718. The "danger of irreparable injury" must be shown to be great before an injunction can be granted. Id. (citing Douglas v. City of Jeannette, 319 U.S. 157 (1943)).
Justice Rehnquist dissented and was joined by Justice Blackmun. Id. at 719 (Rehnquist, J., dissenting). Rehnquist argued that the speech in Wooley was not protected speech. Id. at 720. He did not think bearing the license tags with the state motto was in any way "speech" or "speaking." Id. He also did not think the Court addressed the issue of whether being required to display the state license tags is advocating "political or ideological views." Id. at 721. Finally, Rehnquist indicated that there was nothing to keep people such as the Maynards from displaying their disagreement with the state motto so long as the state motto remained visible. Id. at 722.
(155.) Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977).
(156.) Id. at 211.
(157.) Id. Each teacher who was not a union member had 60 days from the time of hire, or from the time the statute went into affect, to comply with the statute or be subject to employment termination. Id. at 212. The only requirement for nonunion teachers was that they pay the service fee; they were not required to join the union or support its views. Id.
(158.) Id. at 217.
(159.) 351 U.S. 225 (1956).
(160.) Abood, 431 U.S. at 218.
(161.) Id. at 219 (citing Railway Employes' [sic], 351 U.S. at 233-35).
(164.) 367 U.S. 740 (1961).
(165.) Abood, 431 U.S. at 219 (citing Machinists, 367 U.S. at 744). The Court noted that there are several substantial reasons for having a single representative in a union situation: avoiding "inter-union rivalries;" avoiding the elimination of the positive benefits of collectivization; and freeing employers from facing different demands from differing unions. Id. at 220-21.
(166.) Id. at 222. "As long as [the representatives] act to promote the cause which justified bringing the group together, the individual cannot withdraw his financial support merely because he disagrees with the groups strategy." Id. at 223 (quoting Machinists, 367 U.S. at 778 (Douglas, J., concurring)).
(167.) Id. at 232.
(168.) Id. at 234.
(170.) Id. In addition, the Court noted that a union could still finance political candidates or express political ideologies not "germane" to its collective bargaining duties, but only with funds from employees who did not object to those ideologies. Id. at 235-36. Justice Rehnquist concurred, stating that he agreed with remanding the case but did not agree with the way the majoritys opinion did not allow an employee to be completely free from association with the union. Id. at 243-44 (Rehnquist, J., concurring). He further stated that he saw no distinction between the government requirement that a public employee "be a Democrat or Republican" in order to maintain employment and requiring the a short concurrence explaining that he did not understand the majority to be saying that the remedies described in Machinists would necessarily be appropriate for any other particular case. Id. at 244 (Stevens, J., concurring). Additionally, Stevens did not understand the majoritys opinion to foreclose the argument that the Union needs a procedure in place to eliminate using, or the risk of using, any nonmembers fees to finance ideological actions unrelated to the collective bargaining process. Id. Justice Powell, joined by Justice Blackmun and Chief Justice Burger, concurred in the judgment remanding the case for further proceedings. Id. (Powell, J., concurring). Justice Powell explained that the Court made a "sweeping limitation of First Amendment rights" by allowing public employees to be compelled to pay fees to a union with which they disagree, only with the hope of receiving a refund if they declare their opposition to the union and bring a proceeding to prove that the union used some of the money to fund ideological activities not relevant to the collective bargaining. Id. at 245. Powell further explained that he disagreed with the Courts "rigid two-tiered analysis" and the burden it places on the person. Id. at 255. Powell stated that there were settled First Amendment principles since Hansen and Machinists which indicated that the First Amendment protected persons not paying dues or fees to a public-sector union and that the burden should be on the state rather than the individual to prove that required dues or fees are for "paramount governmental interests." Id. He also compared compelled association with a union to compelled association with a political party and found no difference. Id. at 257. Finally, Powell pointed out that previously the burden was on the government to prove that a law which was restricting freedom of speech was justifiable by a supreme state interest, which he believed protected the First Amendment without unduly burdening the government. Id. at 26364.
(171.) 447 U.S. 557 (1980).
(172.) Id. at 558.
(173.) Id. at 559. The Policy Statement divided advertisements into either promotional advertising or informational advertising. Id.
(174.) Id. at 560.
(175.) Id. at 560-61. The New York Court of Appeals affirmed, finding little value to the advertising since the corporation was operating in a "noncompetitive market." Id. (citing Consol. Edison Co. v. Pub. Serv. Commn, 390 N.E.2d 749, 757 (N.Y. 1979)).
(176.) Id. at 563.
(178.) Id. at 566.
(182.) Id. Under the first part of the analysis, the Court concluded that the commercial speech was lawful and not misleading. Id. at 566-68. Then the Court concluded that the state had two substantial state interests: conserving energy and maintaining fair and efficient rates. Id. at 568-69. Since the first two questions were answered in the affirmative, the court evaluated the regulation to see whether it directly advanced the governments interest. Id. at 569. With the third step, the Court found that the state had a legitimate interest in conserving energy which was directly advanced by the Commissions order. Id. However, the Commissions creditable concern over the fairness and efficiency of the rates was not a "constitutionally adequate" reason and could not justify the restriction on the Corporations promotional advertising. Id. Finally, the Court evaluated the extent of the suppression of speech and found that it was too extensive. Id. at 569-70. Furthermore, nothing indicated that a less restrictive regulation of promotional advertising would not still reach the states goals. Id. at 570.
(183.) Id. at 571-72. Justice Brennan concurred in the judgment and noted that he was not sure whether the promotional advertising in this case encompassed more than just commercial speech, but he was "inclined" to agree with Justice Stevens that the regulation likely prohibits more than just "proposals to engage in certain kinds of commercial transactions[.]" Id. at 572 (Brennan, J., concurring). Brennan stated that if the promotional advertising was more than just commercial speech, then he was sure that it violated the First and Fourteenth Amendments. Id. However, even if the Court was correct that the Commission was only restricting commercial speech with the order, Brennan agreed with Justice Blackmun that there was no difference between commercial and other types of protected speech that would justify the suppression of commercial speech simply to filter the information available to the public. Id.
Justice Blackmun also concurred in the judgment, in which Justice Brennan joined as well. Id. at 573 (Blackmun, J., concurring). Blackmun argued that although the Courts judgment was correct, its test did not follow precedent, nor did it provide "adequate protection for truthful, nonmisleading, noncoercive commercial speech." Id. Blackmun disagreed with the Courts application of the four-part test when the government was trying to suppress information about a product to manipulate private economic decisions. Id. He believed that this intermediate level of scrutiny should only be applied to shield customers from "misleading or coercive speech, or a regulation related to the time, place, or manner of commercial speech." Id. Blackmun further stated, "[n]o differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the availability of information." Id. at 578.
Justice Stevens also concurred in the judgment, joined by Justice Brennan. Id. at 579 (Stevens, J., concurring). Stevens felt the Court did not adequately define commercial speech and was concerned that speech which called for greater constitutional protection would not adequately be protected if commercial speech was defined too broadly. Id. He concurred in the result only because he did not consider it "commercial speech" so he found no need to determine whether the Courts four-part test was adequate to protect commercial speech. Id. at 583.
Justice Rehnquist disagreed with the Court and dissented to express his view that the Court was incorrect in several respects. Id. at 583-84 (Rehnquist, C.J., dissenting). First, Rehnquist believed the energy crisis was a critical state and national issue which warranted banning promotional advertising. Id. at 584. Second, he did not think a "state-created monopoly," subject to a comprehensive regulatory scheme, should be afforded First Amendment protection. Id. He referred to the speech at issue as "economic regulation" and believed it should be given much less protection, if any, than the Court gave it. Id. Finally, Rehnquist advocated that the Court inappropriately made a judgment call regarding the drafting of a promotional advertising ban, which, in his opinion, should have been left up to the legislature. Id. Rehnquist also indicated that New York should be able to ban promotional advertising as permissible state regulation since without the extensive state regulatory scheme, it would not enjoy a monopoly. Id. at 588. Furthermore, he indicated that the Courts test nearly raised commercial speech to the same level as noncommercial speech which distracts from the importance of providing First Amendment protection to noncommercial speech. Id. at 591.
(184.) 496 U.S. 1 (1990).
(185.) Id. at 5.
(186.) Id. The trial court had granted summary judgment to the State Bar and had based its decision on the State Bar being a government agency. Id. at 6. Then the California Court of Appeals reversed and held that "while respondents regulatory activities were similar to those of a government agency, its 'administration-of-justice functions were more akin to the activities of a labor union." Id. (citing Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)). Then the California Supreme Court reversed the Court of Appeals in a divided vote. Id. Its rationale was that the State Bars status as a public corporation made it like a government agency. Id. at 6-7.
(187.) Id. at 4, 7.
(188.) Id. at 11. The Court further noted that most of the State Bars functions are simply advisory in nature. Id. Functions such as admission, disbarment, suspension, and the establishment of an ethics code are all done by the California Supreme Court. Id.
(189.) Id. at 12. The Court compared the members of the State Bar to members of an employee union, stating that in both cases there would be the problem of "free riders" if each person receiving benefit was not required to share equally in the expense. Id. The Court discounted the State Bars argument that the compelled association of the State Bar serves a greater public interest than compelled association with labor unions because labor unions serve the greater purpose of maintaining industrial peace for all of society. Id. at 13 (citing Ellis v. Brotherhood of Ry., 466 U.S. 435, 455-56 (1984)).
(190.) Id. at 14. There is a fine line between activities that are "germane" and those that are not, and this is not an easily solved dilemma. Id. at 15. Although the Court believed that the "ends of the spectrum" are clear,
Compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative; [but] at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected with disciplining members of the Bar or proposing ethical codes for the profession. Id. at 16.
(191.) Id. at 17.
(192.) 529 U.S. 217, 220-21 (2000).
(193.) Id. at 221.
(194.) Id. Both the district court and the court of appeals relied on the precedents "which protect members of unions and bar associations from being required to pay fees used for speech the members find objectionable[.]" Id.
(195.) Id. The student activity fee is divided into "allocable" and "nonallocable." The nonallocable portion amounts to about 80 percent of the total fee and covers items such as student health services, upkeep of the student union, and intramural sports, among others. Id. at 223. The allocable portion of the fee is remitted to extracurricular activities participated in by the registered student organizations (RSOs). Id. RSOs may receive a share of the allocable fees in any of three ways: most organizations receive funds directly from the Student Government Activity Fund (SGAF) which is administered by the student government; others receive funding from the General Student Services Fund (GSSF) which is administered through the student governments finance committee; and finally, RSOs can receive funding through a student referendum. Id. at 223-24. Both parties stipulated that the SGAF and GSSF funding are done in a manner that is viewpoint neutral. Id.
(196.) Id. at 230. The Court elaborated, explaining that "by majority vote of the student body a given RSO may be funded or defunded. It is unclear to us what protection, if any, there is for viewpoint neutrality in this part of the process." Id. at 235. The Court further stated:
There is symmetry then in our holding here and in Rosenburger: Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the programs operation once the funds have been collected. We conclude that the University of Wisconsin may sustain the extracurricular dimensions of its programs by using mandatory student fees with viewpoint neutrality as the operational principle.
Id. at 233-34. Justice Souter, joined by Justice Stevens and Justice Breyer, concurred with the judgment as well as with the Universitys scheme but disagreed in the majoritys imposing a "cast-iron" mandate of viewpoint neutrality to uphold the scheme. Id. at 236.
(197.) See infra notes 198-227 and accompanying text.
(198.) 500 U.S. 173 (1991). In Rust, the Court held in a 5-4 opinion that a federal statute forbidding spending of any government funds on family planning programs that included abortion, did not violate the First Amendment. Id.
(199.) See Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997); see also United States v. United Foods, 533 U.S. 405 (2001); Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (2005).
(200.) Glickman, 521 U.S. at 460.
(201.) Id. These regulations were established through the Secretary of Agriculture under the Agricultural Marketing Agreement Act (AMAA) for the purpose of establishing and maintaining fair and orderly market conditions for some types of agricultural commodities. Id. at 461. See Agricultural Marketing Agreement Act of 1937, Pub. L. No. 137, 50 Stat. 246 (1937) (codified as amended at 7 U.S.C. [sections][sections] 601-602 (2000)).
(202.) Glickman, 521 U.S. at 464.
(203.) Id. at 466. See supra note 57 and accompanying text.
(204.) Glickman, 521 U.S. at 473. The majority also distinguished this regulatory scheme from law that the Court had found in the past to violate the First Amendment. Id. First, in this regulatory scheme, there is "no restraint on the freedom of any producer to communicate any message to any audience." Id. at 469. Second, the scheme does not compel anyone to partake in actual or symbolic speech. Id. Third, the scheme does not force any producer to "endorse or finance any political or ideological views." Id. at 469-70.
(205.) Id. at 477.
(206.) Id. (Souter, J., dissenting). Justice Thomas did not join in Part II of Justice Souters dissent. Id. Justice Thomas, joined by Justice Scalia, dissented, indicating that he joined in Justice Souters dissent except for Part II because he continued to disagree with using the Central Hudson Test and the "discounted weight given to commercial speech generally." Id. at 504 (Thomas, J., dissenting). Thomas disagreed with the Court and felt strongly that the case did involve "speech" and that the majority was not following precedent. Id.
(207.) Id. at 478 (Souter, J., dissenting).
(208.) Id. at 487. Souter indicated that he would have applied the Central Hudson Test and the case would have failed all three prongs of that test. Id. at 491-92. However, even if the prong calling for "a substantial government interest" was met, the Secretary would still have had to prove that the generic advertising programs directly advance that interest and that the whole scheme stabilizes the agricultural market. Id. at 499.
(209.) See United States v. United Foods Inc., 533 U.S. 405 (2001).
(210.) Id. at 416-17.
(211.) Id. at 408.
(212.) Id. at 409.
(213.) Id. at 411-12. The Court noted, in comparison, that in Glickman, the producers were required to contribute funds for generic advertising as part of a comprehensive regulatory scheme. Id. at 412. "Beyond the collection and disbursement of advertising funds, there are no marketing orders that regulate how mushrooms may be produced and sold, no exemption from the antitrust laws, and nothing preventing individual producers from making their own marketing decision." Id.
(214.) Id. at 415.
(215.) Id. at 416-17.
(216.) Id. at 418 (Stevens, J., concurring).
(219.) Id. at 418-19 (Thomas, J., concurring) (citing Glickman v. Wileman Bros. & Elliot, Inc., 521 U.S. 457, 504-06 (1997) (Thomas, J. dissenting)).
(220.) Id. at 419.
(221.) Id. (Breyer, J. dissenting).
(223.) Id. at 419-20. Breyer stated, "[a]nd I believe these similar characteristics demand a similar conclusion." Id. at 420.
(224.) Id. at 425. Justice Breyer cited three major reasons for this conclusion: the program does not cause significant interference with protected speech; the program actually "furthers, rather than hinders, the basic First Amendment 'commercial speech objective[,]" and there is not a "special risk of other forms of speech-related harm." Id. at 425-29. Justice OConnor did not join in this part, Part II, of the dissent. Id. at 419, 425-29.
(225.) Id. at 429.
(226.) See supra Part III.
(227.) See Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997); United States v. United Foods, Inc., 533 U.S. 405 (2001); Johanns v. Livestock Mktg. Assn., 544 U.S. 550 (2005).
(228.) Bezanson & Buss, supra note 10, at 1383.
(229.) See infra Part IV.
(230.) See Rust v. Sullivan, 500 U.S. 173 (1991) (holding that a federal statue forbidding spending of any government funds on family planning programs that include abortion, did not violate the First Amendment).
(231.) See infra note 236 and accompanying text.
(232.) See infra Part IV.
(234.) See Livestock Mktg. Assn v. U.S. Dept of Agric., 207 F. Supp. 2d 992 (D.S.D. 2002); Livestock Mktg. Assn v. U.S. Dept of Agric., 335 F.3d 711 (8th Cir. 2003); Johanns v. Livestock Mktg. Assn, 544 U.S. 550 (2005).
(235.) See Johanns, 544 U.S. 550.
(236.) CRUMP ET AL., supra note 6, at 839-40.
(237.) Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000). The majority in Southworth explained:
It is inevitable that government will adopt and pursue programs and policies within its constitutional powers but which nevertheless are contrary to the profound beliefs and sincere convictions of some of its citizens. The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies.
(238.) Bezanson & Buss, supra note 10, at 1380. Bezanson and Buss, in speaking of a governments need to speak, further state:
This is particularly true in representative democracies, where governments speech must consist not just of information but also of explanation, persuasion, and justification to a polity tethered to the policies and preferences acted upon by its representatives.
The imperative of government speaking, and the roles occupied by government when it speaks, are vastly multiplied in the modern state. In domestic affairs, modern government is not limited to prohibitions. It is instead also a creator of rights and programs, a manager of economic and social relationships, a vast employer and purchaser, and educator, investor, curator, librarian, historian, patron, and on and on. Government inculcates values, defines justice, fairness, and liberty, and shapes behavior. It assures safety, protects the helpless and uninformed, and prevents injustice. It also places behavioral demands on its largess: It taxes and spends, subsidizes and penalizes, encourages and discourages. None of these undertakings, and none of the roles the undertakings require government to assume, could be successfully pursued without speech by government. Government must explain, persuade, coerce, deplore, congratulate, implore, teach, inspire, and defend with words. Id.
(239.) Johanns, 544 U.S. at 574 (Souter, J., dissenting).
(240.) See id. at 570-80.
(241.) Daniel Dvorak, Forced Commercial Speech and the Government Speech Doctrine: Discerning and Reducing the Uncertainty Following Johanns v. Livestock Marketing Association, 32 J. CORP. L. 429, 440 (2007).
(242.) 455 U.S. 252 (1982)
(243.) Johanns, 544 U.S. at 562. See Lee, 455 U.S. at 260.
(244.) 262 U.S. 447 (1923).
(245.) See id. at 486-88. The Court in Mellon held that the plaintiff did not have a case because the plaintiff had no close relationship with the general taxes imposed by the federal government. Id.
(246.) Johanns, 544 U.S. at 575-76 (Souter, J., dissenting).
(247.) Lee, 455 U.S. at 260 (1982) (emphasis added).
(248.) Id. at 259. "The remaining inquiry is whether accommodating the Amish belief will unduly interfere with fulfillment of the governmental interest." Id.
(249.) See Johanns, 544 U.S. 550.
(250.) Id. at 562 (citing Lee, 455 U.S. at 260).
(251.) Id. at 562-63.
(252.) See id. at 550; Lee, 455 U.S. 252.
(253.) Johanns, 544 U.S. at 575 (Souter, J., dissenting).
(254.) See Lee, 455 U.S. 252.
(255.) See id.
(256.) See Johanns, 544 U.S. 550.
(257.) See id. at 553-67.
(258.) Id. at 575 (Souter, J., dissenting). In Mellon, the Court was able to articulate the distinction between the more distant relationship between a general tax payer and a general tax and the closer relationship between a corporate taxpayer and a municipal corporation, likening the latter to the relationship between a stockholder and a private corporation. Mellon v. Massachusetts, 262 U.S. 447, 486-87 (1923). The Court further distinguished the closer nexus that a targeted tax creates as it stated:
But the relation of a taxpayer of the United States to the federal government is very different. His interest in the moneys of the treasury-partly realized from taxation and partly from other sources-is shared with millions of others, is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventative powers.... The administration of any statute, likely to produce additional taxation to be imposed upon a vast number to taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern.
Id. at 487.
(259.) Johanns, 544 U.S. at 575 (Souter, J., dissenting).
(260.) Id. at 576 (citing Hurley v. Irish Am. Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 573 (1995)).
(261.) See id. at 551, 574.
(262.) Id. at 575-76.
(263.) Id. at 563.
(264.) U.S. CONST. art. II, [sections] 2, cl. 2.
(265.) Daniel E. Troy, Do We Have a Beef With the Court? Compelled Commercial Speech Upheld, But it Could Have Been Worse, 2005 CATO SUP. CT. REV. 125 (2004-05).
(267.) Government Speech Doctrine-Compelled Support for Agricultural Advertising, 119 HARV. L. REV. 277, 287 (2005) (emphasis added).
(269.) West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 211-12 (1994) (Scalia, J., concurring). Ironically in this case Justice Scalia previously stated that:
[He] would therefore allow a State to subsidize its domestic industry so long as it does so from nondiscriminatory taxes that go into the States general revenue fund. Perhaps, as some commentators contend, that line comports with an important economic reality: A State is less likely to maintain a subsidy when its citizens perceive that the money (in the general fund) is available for any number of competing, nonprotectionist, purposes.
(270.) See supra notes 25 and 41 and accompanying text.
(271.) See supra note 41 and accompanying text.
(272.) Livestock Mktg. Assn v. U.S. Dept of Agric., 207 F. Supp. 2d 992, 1005 (D.S.D. 2002), aff'd, Livestock Mktg. Assn v. U.S. Dept of Agric., 335 F.3d 711 (8th Cir. 2003), rev'd sub nom., Johanns v. Livestock Mktg. Assn, 544 U.S. 550 (2005). The district court stated, "[i]t is true that the Secretary must approve the appointment of those nominated to the Board. However, based upon the evidence, I conclude that such approval is merely pro forma." Id.
(273.) Johanns, 544 U.S. at 571-72 (2005) (Souter, J., dissenting).
(274.) Bezanson & Buss, supra note 10, at 1384.
(275.) Id. at 1491. Other risks noted by Bezanson & Buss were the "displacement of private speech through conversion or alteration of meaning; and deception about who authored a message." Id. at 1384.
(276.) Id. So long as government speech meets the above criteria, it "is a perfectly constitutional form of government action that cannot be limited in terms of it purpose, subject matter, or message." Id. However, the same commentators continued by stating that "given the narrow definition of government speech and the fact that its risks lie in the means employed, not the ends sought by the speech, there is no basis or need for any special form of privilege or immunity for government speech." Id.
(277.) Johanns, 544 U.S. at 564 n.7 (first emphasis added).
(278.) Id. at 577 (Souter, J., dissenting).
(279.) Id. at 565-66 (majority opinion).
(280.) See id. at 566 nn.9-11.
(281.) Bezanson & Buss, supra note 10, at 1380.
(282.) Dvorak, supra note 241, at 442.
(283.) Johanns, 544 U.S. at 559 (citing Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000)).
(284.) Dvorak, supra note 241, at 442.
(286.) Id. "Permissible economic regulations come in the form of [general] taxes, consumer safety and welfare guidelines, employee and labor regulations, etc., not in the form of forced contributions for objectionable commercial speech." Id.
(289.) Id. at 443.
(290.) See Johanns v. Livestock Marketing Assn, 544 U.S. 550, 577-78 (2005).
(292.) Livestock Mktg. Assn v. U.S. Dept of Agric., 335 F.3d 711, 721-26 (8th Cir. 2003), rev'd sub nom., Johanns v. Livestock Mktg. Assn, 544 U.S. 550 (2005). The Court of Appeals for the Eighth Circuit noted that there was much conflict among the district courts after the U.S. Supreme Courts ruling in United Foods:
Compare, e.g., Charter v. United States Dept of Agriculture, 230 F. Supp. 2d 1121 (D. Mont. 2002) ... (upholding the beef checkoff program on ground that generic advertising under the Beef Act is government speech), with Pelts & Skins, L.L.C. v. Jenkins, No. CIV.A.02-CV-384, 2003 WL 1984368, at 6 (M.D. La. Apr.24, 2003) (holding that mandatory assessments imposed to fund generic advertising of alligator products violated alligator farmers First Amendment rights; reasoning in part: "[b]ecause the generic advertising here involved is not government speech, plaintiff is free to challenge such advertising on First Amendment grounds"); In re Washington State Apple advertising Commn, 257 F. Supp. 2d 1290, 1305 (E.D. Wa.2003) (holding that mandatory assessments imposed to fund generic advertising of Washington State apples violate apple producers First Amendment rights; reasoning in part: "the Commissions activities are not protected by the government speech doctrine"); Michigan Pork Producers v. Campaign for Family Farms, 229 F. Supp. 2d 772, 785-89 (W.D. Mich. 2002) (holding that mandatory assessments imposed to fund generic advertising of pork and pork products violate pork producers First Amendment rights; reasoning in part: "[t]hough the Secretary is integrally involved with the workings of the Pork Boards, this involvement does not translate the advertising and marketing in question into 'government speech'").
Id. at 718.
(293.) See Johanns, 544 U.S. 550.
(294.) See supra notes 50-65 and accompanying text.
(295.) See Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997).
(296.) See Livestock Mktg. Assn v. U.S. Dept of Agric., 207 F. Supp. 2d 992, (D.S.D. 2002), aff'd, Livestock Mktg. Assn v. U.S. Dept of Agric., 335 F.3d 711 (8th Cir. 2003), rev'd sub nom., Johanns v.
Livestock Mktg. Assn, 544 U.S. 550 (2005).
(297.) See Johanns, 544 U.S. at 572 (Souter, J., dissenting).
(298.) Keller v. State Bar of Cal., 496 U.S. 1, 11-12 (1990). The State Bar was funded via dues from members rather than legislative appropriations and did not admit or disbar attorneys. Id.
(299.) See Livestock Mktg. Ass'n, 335 F.3d 711.
(300.) See id. at 723.
(301.) See id.
(302.) See id.
(303.) See id.
(304.) See id.
(305.) See id.
(306.) See id. at 721 (citing United States v. United Foods, Inc., 533 U.S. 405, 417-18 (2001) (Stevens, J., concurring)).
(307.) See id. at 723-26.
ANDREW J. MARSHALL ([dagger])
([dagger]) J.D. Candidate, 2009, University of South Dakota School of Law; B.S.N., 2006, Mount Marty College, Yankton, South Dakota.
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|Author:||Marshall, Andrew J.|
|Publication:||South Dakota Law Review|
|Date:||Jun 22, 2008|
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