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. …

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