In Johanns v. Livestock Marketing Assn, the United States Supreme Court upheld the beef checkoff program and effectively broadened the government speech doctrine. In a 6-3 decision, the Court held that the generic beef advertising program at issue was the government's own speech and therefore was exempt from the standard First Amendment scrutiny, regardless of any imposition on the beef producers' freedom of speech. The Court's decision allows the government to overrun citizens' freedom of speech simply by invoking the government speech defense without using any type of balancing or germaneness test. Although the Court's decision in Johanns gave lip service to requiring political accountability of the government before allowing it to invoke the government speech defense, true political accountability in Johanns was tenuous at best. The Court missed an opportunity to set outer boundaries to the government speech doctrine and will likely be revisiting this doctrine again in the near future.
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. …