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Remarks on the South Dakota Law Review symposium: "The Government Speech Doctrine" March 1, 2012.

I am truly honored to be included among those invited to participate as a panelist in the 2012 South Dakota Law Review Symposium. I am particularly pleased to share a spot on this panel with my long time friend and colleague, Dr. Don Dahlin. As many of you know, Professor Dahlin challenged his USD students with the study of American constitutional law at the same time that I was attempting the same with my SDSU students. In addition, I am pleased to become acquainted with Professors Norton and Goldberg and to learn from their comments.

As an undergraduate professor of American civil rights and liberties, I frequently encountered students who harbored a very simplistic understanding of protected freedom of expression at the start of the semester. "It is a free country, under the First Amendment, I can say or write whatever I want" was a common view expressed. It was then my pleasure to observe students grasp a more sophisticated understanding of the breadth and limitations of freedom of expression as we discussed case law that introduced them to a host of expression doctrines, including prior restraint versus subsequent punishment regulations; time, place and manner of expression regulations versus content regulations; unprotected forms of expression versus quasi- protected and preferred forms of expression; pure speech versus symbolic expression; and the freedom to speak versus the freedom not to speak.

I sought to demonstrate to my students through the discussion of case law that freedom of expression doctrines evolved over time and were in a constant state of flux. For example, we might study a strand of case law that would illustrate how commercial expression evolved from a form of unprotected expression to a form of quasi-protected expression with its own four-prong test applied by the courts to determine the validity of a governmental commercial expression regulation. In a similar fashion we might study a strand of case law that would illustrate freedom of religious expression includes the freedom of a public school student not to recite a mandatory but offensive secular pledge and freedom of the press includes the prerogative of a newspaper editor not to afford equal space to those who might have been on the receiving end of the newspaper's caustic editorial comments. We might then proceed to discuss another strand of case law to illustrate how two separate strands might intertwine to create yet another doctrine. In reviewing the examples previously mentioned, we might study case law that would serve as legal precedent for recognizing commercial expression as including the freedom to express commercial speech and the freedom not to express other commercial speech that is not in agreement with one's personal commercial interests. Today's symposium reveals how our study becomes more complicated by the unexpected introduction of a third strand of cases that provides legal precedent for the "government speech" doctrine as a barrier to one's ordinary right to assert freedom of expression as a defense against involuntary participation in speech that one might find offensive or in conflict with one's own beliefs or interests. All of this is certainly a long way from "It is a free country, I can say or write what I want," but complexity is the norm in the study of American civil rights and liberties. Today's topic of "Government Speech" and the contribution that the 2005 ruling of the United States Supreme Court titled, Johanns v. Livestock Marketing Ass'n (1) added to the government speech doctrine exposes us to a particularly complex legal subject matter that includes elements that both satisfy and challenge our desire for logic and reason in law. Let us pursue more carefully the complexity of the government speech doctrine.

As noted in my comments earlier, today's symposium invites the conversion of three diverse speech doctrines: commercial expression, freedom from government coerced expression and government speech. Each of these speech doctrines is supported in case law decided by the United States Supreme Court beginning in the 1940s and extending to the present day. Commercial expression was the first of the three speech doctrines to receive attention from the Court when in Valentine v. Chrestensen, (2) the Court ruled that the First Amendment does not protect "purely commercial expression." During the 1970s, commercial expression gained new respect from the Court when a majority of the Court for the first time held in Bigelow v. Virginia (3) that commercial expression is afforded some level of protection under the First Amendment. Three additional Court rulings during the 1970s affecting pharmaceutical, legal, and real estate advertising solidified the Bigelow ruling. The following decade, in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, (4) the Court embraced the four-prong test currently applied by the Court in approaching commercial expression controversies. The test (1) weighs the commercial message itself to determine if it accurately conveys information regarding a lawful activity; (2) weighs the state interest in regulating the expression to determine if it is substantial; (3) weighs the relationship between the regulation and the advancement of the substantial state interest to determine if that relationship is remote or direct and (4) weighs the regulation to determine if the regulation is narrowly tailored to achieve the desired governmental objective. We must observe that even with the added protection afforded accurate advertising of a legal activity, commercial expression still does not enjoy the level of protection that political, philosophical, religious, artistic, or scientific expression enjoys under our legal framework.

First Amendment protection from government-coerced expression or the right not to speak received U.S. Supreme Court recognition for the first time in the courageous West Virginia State Board of Education v. Barnette (5) ruling in which the Court held that mandatory participation in the American flag (5) Pledge of Allegiance" ceremony as a prerequisite to attending public school violated freedom of religious expression secured by the First and Fourteenth Amendments. The ruling was considered courageous for the day, as our nation was engaged in World War II and American ultra nationalism was at an all time high. The Court subsequently endorsed the "right not to speak" in a variety of rulings affecting diverse expression controversies ranging from license plate mottos to parade-entrant requirements to newspaper editorial prerogatives. However, as noted in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., (6) the Court has been careful to insist that the "right not to speak" protection be applied only in those cases where the litigant's own message is adversely affected by the speech he or she is forced to participate in or accommodate. Further, the Court appears to insist in Wooley v. Maynard (7) that the contested "compelled expression" measure place the complaining citizen in a position of asserting that the message is true and that a listener will attribute the same to the messenger before relief be granted.

The third of the expression doctrines which merge in the discussion of Johanns v. Livestock Marketing Ass 'n is "government speech." It is critical to observe from the start that government speech has no First Amendment roots. To reason otherwise would be to place the First Amendment on its head. The First Amendment was intended to limit national governmental powers and not to augment or enhance governmental powers. Government speech is a national governmental power that emerges out of the necessary and proper clause (8) of the United States Constitution and a state governmental power that emerges out of the general powers reserved to the states made explicit in the Tenth Amendment. There is a certain compelling logic associated with government speech. If our government possesses constitutional power to act, it follows that our government has an accompanying power to express support for that action in a manner that need not be content neutral, which would be required of our government were it seeking to regulate private expression. We expect the U.S. Marine Corps to hype the advantages of enlisting in the USMC without insisting that the Corps also present a discussion of the disadvantages and dangers of enlisting. Government speech that is content based invites legal disputes when contested by citizens as constituting prohibited, coerced expression or as constituting a prohibited prior restraint of the content of expression. Government speech was recognized in Wooley v. Maynard, (9) mentioned earlier, although the Court held that the individual protection against coerced expression outweighed New Hampshire's interest in promoting the state's history and pride by requiring state motorists to display the state motto "Live Free or Die" on the state's official license plate. In other cases, the Court's recognition of the presence of government speech has prompted the Court to dismiss individual coerced expression or prior restraint of content of expression claims. Thus, in Rust v. Sullivan, (10) the Court dismissed individual free speech claims of prior restraint of private expression by concluding that the national governmental ban on abortion counseling by entities receiving federal funding constituted content-based government speech favoring continued pregnancy over termination of pregnancy, which, in turn, defeated individual expression claims of health care professionals. Yet, ten years later the Court held in Legal Services Corp. v. Velazquez (11) that the communication between government subsidized legal counsel and the counsel's client constituted private expression protected against government imposed prior restraint of the content of expression. The distinction created by a majority of the Court in the two cases causes some Court observers to question the logic and consistency of the Court.

The Johanns ruling is best understood within the context of three commercial agriculture expression controversies that raised questions of coerced private commercial expression and government speech. The different outcomes of the three controversies have again caused Court observers to question the logic and consistency of the Court. The first of the controversies is Glickman v. Wileman Bros. & Elliot. (12) In Glickman, the Court recognized that commercial expression enjoys First Amendment protection and that the mere presence of a government speech claim does not automatically defeat First Amendment claims. Yet, the Court upheld the validity of a USDA program that legally obligated producers of a variety of fruits to contribute financially to a generic fruit advertising campaign over their objections to the generic nature of the campaign. In upholding the regulation, the Court held that the involuntarily funded advertising campaign was but an incidental part of a broader valid agricultural regulatory policy and that the contested policy, while affecting private commercial speech, did not prohibit any producer from expressing any other message to any audience. In brief, there was no showing of prior restraint of the content of private speech. Further, the Court dismissed the "right not to speak" claim based on their finding that the producers had failed to present any evidence that the contested commercial speech was attributed to them by the listening audience. Curiously, while the Court did not hold the contested speech to be government speech, the Court nevertheless dismissed the First Amendment coerced commercial expression claim because of the lack of a factual showing of attribution by the complaining party. The Court held that the complaint lacked First Amendment merits because it ultimately came down to a complaint about being obligated to contribute financially to a public policy with which they did not agree. The Court did not wish to encourage the public to file a First Amendment coerced expression suit to contest the spending of mandated tax revenue each time the government pursued a policy that a citizen disagreed with.

The second of the three cases culminating with Johanns is United States v. United Foods, Inc.. (13) In United Foods, the Court struck down a federal statute creating a USDA program that mandated monetary assessments on the handlers of fresh mushrooms to fund an advertising campaign promoting mushrooms. In so doing, the Court painstakingly sought to identify distinctions between Glickman and United Foods in order to allow Glickman to stand despite the apparent contradictory holding. The Court reasoned that unlike the broader fruit producers regulatory scheme in which the speech element was incidental, the contested mushroom handlers regulation was more narrowly tailored as a speech regulation, which more closely attributed the mandated commercial expression to the mushroom handlers subject to the regulation. In doing so, the Court reasoned the speech was more akin to private than government speech; thus, First Amendment assertions had merit. It is significant to note that the four-prong commercial expression doctrine was not applied in either Glickman or United Foods, although both involved an assertion of the right not to engage in commercial expression.

The Johanns ruling prompts further head scratching in our effort to find consistency in the logic of the Court as the Court approaches yet another government mandated agricultural commercial expression controversy. At the center of the storm in Johanns was the "Beef. It's What's for Dinner" generic beef promotion campaign financed by a mandated one dollar per head sold beef "checkoff" under the provisions of the Beef Promotion and Research Act of 1985. A number of beef producers objected to being required by law to contribute financially to the generic campaign which they saw as running in opposition to their objective of promoting special name brand beef. As was true with the Glickman case and the United Foods case, a sharply divided Court determined the outcome in Johanns. As was also true in the previous cases, commercial expression, the right not to speak, and government speech arguments converged to challenge the Court. Unlike Glickman impacting a variety of fruit producers and like United Foods impacting only mushroom handlers, Johanns presents the Court with a more narrowly drawn regulatory measure impacting only beef producers. However, unlike both United Foods and Glickman, in Johanns, the Court finds the presence of government speech and the absence of private party attribution associated with the complaining party. The Court opted to attribute the beef message to the USDA because the message had been approved by the Secretary of Agriculture as required by law. The Court reasoned that although the beef message was always accompanied by the disclaimer "Funded by America's Beef Producers" and the logo of the Beef Board, the complaining producers had failed to make a factual showing that listeners attributed the beef message to the producers. The finding of government speech by the Court then served as a shield to block First Amendment violation claims of government coerced commercial expression. Some have observed that the beef promotion message appears to be a message without an obvious speaker although the Court settled on one.

Again, the contribution of Johanns cannot be understood standing alone. It is better to analyze the controversy within the context of Glickman, United Foods, and Johanns. The three cases considered together lead us to the following conclusions. The Glickman reasoning that the scope of the challenged regulatory scheme matters still stands, as it is more difficult for a plaintiff to establish a successful First Amendment claim when coerced financial support for commercial expression is a mere additional and incidental part of an otherwise valid broad regulatory measure. A factual showing of private speech attribution appears to be necessary in order to successfully advance a First Amendment claim when a government claim of government speech is also advanced even when the regulatory scheme is more narrowly drawn as was true in Johanns. Mandatory "financial check off' support for contested commercial expression is not the equal of more direct coerced commercial expression as noted by the majority in Johanns. When the majority of the Court accords the disputed expression government speech status, First Amendment coerced commercial expression violation claims are blocked. Government speech need not be content neutral, indeed, government speech is anticipated to be content based in order to successfully advance the virtue of the government policy or to encourage citizen support or participation in the government policy. Agricultural "checkoff' programs appear to be safe for the time being, although it is a closely divided Court holding the same. Perhaps the most controversial conclusion of the Court in Johanns was the finding that a First Amendment claim of government coerced commercial expression must be supported with a challenging factual showing of attribution when a government counterclaim of government speech is advanced. The factual burden appears to be on the private party and the default position appears to favor the government claim. As noted earlier, once the Court acknowledges the presence of government speech, private First Amendment violation claims of coerced commercial expression are neutralized. In short, when government speech is acknowledged, the government is free to advance content-based expression shielded from ordinary First Amendment violation claims, which rely upon the requirement that government regulation of expression be content neutral.

The rather casual Court finding of government speech in Johanns allowed the Court to avoid the issue of government coerced commercial expression. A finding of government speech in other freedom of expression controversies likewise allows the Court to sidestep or reason around important issues. Pleasant Grove City, Utah v. Summum (14) is an excellent case in point. In Pleasant Grove City, a unanimous Court rejected the First Amendment claim of the Summum religion to enjoy equal access to a public space by being allowed to erect a pyramid-like monument where others had been permitted to erect a Ten Commandments monument in the same public space. The Summum religion was relying on a First Amendment argument that is replete with ample case law precedent. If the sovereign permits access to public space for the purpose of expression, the access policy must be content neutral. The doctrine would seem to support the Summum claim. If the Ten Commandments monument is permitted the Summum pyramid must also be permitted. Government ought not to prefer one religion over another in granting access to public space. However, the unanimous Court chose to view the city's decision to permit the construction of the Ten Commandments monument as an expression of public policy preference or government speech. The acknowledgement of the presence of government speech then served to neutralize the plaintiffs' First Amendment violation claim because the government speech need not be content neutral. This would seem to be the greatest danger of the Court being too quick or too casual in recognizing the government's claim of government speech over the individual's First Amendment claim. A hint of this is found in Johanns and a full serving of it is found in Pleasant Grove City. The Court is not beyond advancing the government speech doctrine as logic to reach a conclusion most desired but otherwise unsupportable in existing case law.

(1.) 544 U.S. 550 (2005).

(2.) 316 U.S. 52 (1942).

(3.) 421 U.S. 809 (1975).

(4.) 447 U.S. 557 (1980).

(5.) 319 U.S. 624 (1943).

(6.) 547 U.S. 47 (2006).

(7.) 430 U.S. 705 (1977).

(8.) U.S. CONST. art. I, [section] 8, cl. 18.

(9.) 430 U.S. 705 (1977).

(10.) 500U.S. 173 (1991).

(11.) 531 U.S. 533(2001).

(12.) 521 U.S. 457 (1997).

(13.) 533 U.S. 405 (2001).

(14.) 555 U.S. 460 (2009).

BOB BURNS, ([dagger])

([dagger]) Dr. Bob Burns is a Distinguised Professor Emeritus of Political Science and Dean Emeritus of the Honors College at South Dakota State University. He is a Flandreau native and a 1964 Political Science graduate of SDSU. He earned his Ph.D. in Political Science from the University of Missouri-Columbia. He served as an officer in the U.S. Army from 1968 1970 including one year as an Army Captain in Vietnam. He was awarded a Bronze Star for Meritorious Service and the Air Medal with Oak Leaf Cluster while serving in Vietnam. Dr. Bums joined the political science faculty at SDSU in 1970 where he served for 38 years until his retirement in 2008. In addition to teaching American public policy and law at SDSU, Dr Bums was the head of the Political Science, Philosophy, and Religion departments for nearly 20 years, and later also served as the Dean of the SDSU Honors College. He has served on national, regional, and multiple state and local civic and government boards, commissions, task forces, and councils during his professional life and that service continues into retirement.
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Title Annotation:Symposium: The Government Speech Doctrine
Author:Burn, Bob
Publication:South Dakota Law Review
Date:Sep 22, 2012
Previous Article:Government speech: an introduction to a constitutional dialogue.
Next Article:Government may not speak out-of-turn.

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