Forced Commercial Speech and the Government Speech Doctrine: Discerning and Reducing the Uncertainty Following Johanns V. Livestock Marketing Association
Dvorak, Daniel A., Journal of Corporation Law
I. INTRODUCTION II. BACKGROUND: THE DEVELOPMENT OF COMMERCIAL SPEECH JURISPRUDENCE A. Origins of Commercial Speech Protection B. Origins of the Unconstitutionality of Compelled Speech C. Supreme Court Compelled Commercial Speech Jurisprudence 1. Glickman v. Wileman Bros. & Elliot 2. United States v. United Foods 3. Johanns v. Livestock Marketing Association III. ANALYSIS: WHERE ARE WE AFTER JOHANNS? A. Distinction of Glickman B. Forced Commercial Speech and Attribution C, Taxation and Forced Commercial Speech IV. RECOMMENDATIONS: ELIMINATING UNCERTAINTY AND LIMITING THE GOVERNMENT SPEECH DOCTRINE A. The Supreme Court Should Explicitly Overrule the Glickman Precedent 1. The Glickman Distinction is Blurry, Easily Manipulated, and Difficult to Apply 2. Glickman Provides Congress with a Dangerous Incentive to Over-Regulate 3. Perversely, the Glickman Precedent Increases the Burden on Those Involved in Regulatory Programs B. The Government Speech Doctrine Should Be Rendered Inapplicable to Commercial Speech C. At a Minimum, Government Speech Should Not Implicate Private Speakers V. CONCLUSION
In the past 30 years, the landscape of commercial speech has been altered in many remarkable and somewhat indefinite ways. From initial inclusion within the protections of the First Amendment in 1976, (1) to the initial development of the Government Speech Doctrine in 1991, (2) the wide array of changes has created a segment of First Amendment jurisprudence that is as confusing as it is novel.
During the mid to late 1980s, Congress passed a group of legislative programs meant to organize the various sectors of weak and declining agricultural production, and provide for common group expenditures on research and advertising programs. In particular, in 1985, Congress adopted the Beef Promotion and Research Act of 1985 (3) (beef checkoff). This Act authorizes the Secretary of Agriculture to promulgate Market Orders and assemble a group of industry experts to be a part of a Beef Board which, though overseen by the Secretary, administers the research and marketing projects. (4) The projects of this board are funded entirely through targeted assessments exacted from beef producers: a "checkoff" set at the rate of one dollar per head of cattle. (5) The most visual example of this advertising is the ubiquitous "Beef. It's What's for Dinner" and the sound and video that accompanies it in the many commercial advertisements. (6)
While many may debate the relative effectiveness of these advertisements in proportion to the millions spent in their development and promulgation, perhaps the greatest point of contention surrounding commodity research and advertising programs such as these is their constitutionality. Because all beef producers--large or small, from family farms to multi-state conglomerate corporate farms--are required to pay the checkoff if they wish to participate in production, producers of various incomes, political perspectives, and--most importantly, marketing strategies--are compelled to contribute. The question facing the federal judiciary, and at its pinnacle, the Supreme Court, is whether the First Amendment will allow for compelled contributions to be used by the government, on behalf of private producers, to fund speech that some contributors find objectionable and contrary to their individual marketing positions and strategies.
The resolution of this controversy has wide-ranging legal and economic ramifications that are too large to ignore. If these programs are able to withstand First Amendment challenges, Congress may be put on notice that this type of regulation will always pass constitutional muster. Thus, these limited commodity programs may double or triple in number. …