Government May Not Speak Out-of-Turn

By Goldberg, Steven H. | South Dakota Law Review, Fall 2012 | Go to article overview

Government May Not Speak Out-of-Turn


Goldberg, Steven H., South Dakota Law Review


"The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other." (1)

Rust v. Sullivan

Rehnquist, C.J

"The so called 'government speech' doctrine is not so much a doctrine as it is an evolving concept that the government may compel the use of coerced financial contributions for public purposes." (2)

Livestock Marketing Association v. United States

Department of Agriculture

Kornmann, District Judge

"[T]he dispositive question is whether the generic advertising at issue is the Government's own speech and therefore is exempt from First Amendment scrutiny." (3)

Johanns v. Livestock Marketing Association

Scalia, J.

"The Free Speech clause ... does not regulate government speech. A government entity has the right to 'speak for itself' ... to select the views that it wants to express." (4)

Pleasant Grove City, Utah v. Summum

Alito, J.

I. INTRODUCTION

Johanns v. Livestock Marketing Association (5) was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum (6) that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent for the result in Pleasant Grove is especially strange. While I think Johanns did not involve government speech and was wrongly decided, that is not the focus of this essay. Even if the speech was the government's, my concern is with the Pleasant Grove attempt to use Johanns as authority for the idea that government speech is "exempt from First Amendment scrutiny." (7)

Livestock Marketing Association v. United States Department of Agriculture, (8) must have seemed routine, if not easy, when Judge Kornmann wrote his decision one year after the Supreme Court of the United States decided in United States v. United Foods, Inc. (9) that a compelled subsidy from mushroom growers for advertising with which they disagreed violated their rights under the First Amendment. The Livestock Marketing Association amended its complaint to include the First Amendment claim, and Judge Kommann observed that "[t]he beef checkoff is, in all material respects, identical to the mushroom checkoff: producers and importers are required to pay an assessment, which assessments are used by a federally established board or council to fund speech." (10) Neither the Court of Appeals nor the Supreme Court disagreed with that observation, but in the Supreme Court Johanns came out differently from United Foods.

The Court distinguished Johanns from United Foods by endorsing the government's claim that the beef advertising was government speech--an argument not advanced in a timely fashion in United Foods. (11) Justice Scalia, noting the Court had previously sustained First Amendment challenges in both "compelled speech" and "compelled subsidy" cases, said the Court had never "considered the First Amendment consequences of government-compelled subsidy of the government's own speech." (12) Unfortunately, for what became a pernicious "government speech" doctrine in Pleasant Grove, Justice Scalia began the opinion more broadly. The "dispositive question,' he said, "is whether the generic advertising at issue is the Government's own speech and therefore is exempt from First Amendment scrutiny.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Government May Not Speak Out-of-Turn
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.