Case Summary for Johanns v. Livestock Marketing Association
Source: Linda Greenhouse, NYT (5/25/04): "The Supreme Court agreed on Monday to decide
the constitutionality of a 1985 federal law that requires beef producers to pay into a fund that
supports generic promotion campaigns to encourage more beef consumption. The case is an
appeal by the Bush administration and a group of Nebraska cattle producers from a ruling last
July by the federal appeals court in St. Louis that declared that the program amounted to
compelled speech, unconstitutional under the First Amendment."
"The $50 million program, paid for by an assessment of $1 for each head of cattle, was
challenged by a smaller group of cattle producers who maintained that the generic campaign
hurt their interests by making no distinction for consumers between domestic and imported
beef."
Quick look at Johanns v. Livestock Marketing Association
Analysis: Commodity Promotion and Goverment Speech [Source: SCOTUS]
by Tom Goldstein at 11/23/05/ 02:09 PM A six-Justice majority of the Supreme Court today
upheld federally mandated commodity promotion programs against First Amendment challenge.
These programs require producers of various commodities – here, beef ranchers – to contribute
to a federal fund principally used for generic advertising. The Court left open the possibility that
a particular program could be successfully challenged on First Amendment grounds on the
theory that the advertisements for that program attribute a message to a particular group of
participants in the program. Justice Scalia’s opinion for the Court aptly introduces the decision
with the observation that it is “the third time in eight years” that the Justices have confronted
“whether a federal program that finances generic advertising to promote an agricultural product
violates the First Amendment.” The Court first said “no” in Glickman v. Wileman Brothers (the
peaches and plums case) then “yes” in United States v. United Foods (the mushrooms case). But
neither Glickman nor United Foods confronted the question whether the programs were
essentially immune from constitutional scrutiny as “government speech.”
The Court today adopted the government speech rationale, rendering the Glickman and United
Foods decisions essentially a dead letter. Five Justices joined the majority opinion. Justice
Ginsburg concurred in the judgment to add a sixth vote, adhering to her dissenting vote in
United Foods that the programs presented no First Amendment concern. Justice Breyer joined
the majority opinion, but separately concurred to express his continued view that United Foods
was wrongly decided.
Today’s decision is likely to be extremely significant for First Amendment jurisprudence, as it
signals that the government has a free hand not only to communicate its own views without
oversight by the courts but also to require financial support for that communication from a
discrete segment of the population.
The decision creates an interesting divergence in First Amendment law that may have
substantial consequences in the future. The Court has previously held (in cases like Abood and
Keller) that the government cannot compel private financial contributions in support of a private
message. The contributions, the Court reasoned, were akin to compelled speech. Those rulings
provide the doctrinal foundation for the United Foods decision.
Today, the Court held that the same rule does not apply to forced contributions to support
governmental messages. The reason for the different rule is not entirely clear, but is apparently
that the government can require support through generalized tax revenues, and it makes no
difference if the assessment is instead targeted. In most First Amendment contexts, of course,
the Court deems it more objectionable – not less – that an individual is being required to support
a governmental message.
It is difficult to know what caused the Court in this line of cases to zig-zag from Glickman to
United Foods to today’s LMA decision. The members of the United Foods majority who
nonetheless voted to uphold the beef program – Rehnquist, Scalia, and Thomas – notably are
sympathetic to government speech analysis in the heated abortion context. See Rust v. Sullivan
(a decision later recast by the Court as a government speech decision). In addition, those
Justices may have decided the case with an eye to the Court’s review next Term of the
constitutional challenge to the Solomon Amendment. [Disclosure: Goldstein & Howe
represented the Respondents in the case.]
The Beef Debate Continued
Thursday, May 26, 2005 The Beef Debate Continued
Greg Garre of Hogan and Hartson - counsel to the private Petitioners - enters the debate.
Thanks to SCOTUSblog for hosting this (high protein) food fight. Our government has been
speaking out for centuries -- sometimes, no doubt, to more desirable ends than others. Now the
Supreme Court has resolved that the First Amendment does not prevent the government from
requiring citizens, or even certain targeted groups of citizens, from paying for its speech. In the
Johanns case, that principle led the Court to uphold a successful and widely popular marketing
program for beef -- just as the summer grilling season is about to kick off and a week after the
Court eased restrictions on the flow of wine. You can’t knock the Court’s timing. Or (and of
course here I must disagree with Erik) its reasoning. Although the Court followed a somewhat
tortuous path to get to Johanns in the context of its commodity promotion cases (Wileman
Brothers and United Foods), Johanns fits comfortably within the Court’s First Amendment
precedents. The Court’s “compelled speech” cases (e.g., Barnette and Wooley) involved
situations where the government compelled private individuals to utter its message or bear it on
their person or property. Under the beef checkoff program, no one has been forced to stand and
pledge allegiance to beef, or to drive around with a “Beef. It’s What’s for Dinner” license plate.
Rather, those who sell cattle must pay a small assessment -- a dollar per head of cattle -- to pay
for the government’s efforts to promote beef through an entity created by Congress. Cattlemen
remain free to say whatever they wish about the product they choose to sell, pro or con. The
government has not sought to limit, control, or silence their own speech in any way. So the
“Livestock Marketing Association” is still free to denounce the government’s pro-beef ads,
though at the oral argument several of the Justices seemed to have a difficult time understanding
why it would want to do so.
Likewise, this case is different than the Court’s "compelled subsidy" cases (e.g., Keller and
Abood). In those cases, the Court held that the First Amendment prevented a labor union and a
state bar association from compelling members to subsidize political messages with which
objectors disagreed. Critically, however, the speech at issue in those cases was private speech
and not government speech. Some may find the compelled funding of government speech as
objectionable as the compelled funding of private speech, but the government could not speak if
it could not require citizens to pay for its speech, and the government could not function without
speaking. Even Erik recognizes the “necessity for some forms of government speech.”
Fortunately, the Supreme Court has resisted the temptation of adopting a “First Amendment”
analysis that regulates (some might say censors) what the government can and cannot say, or
fund.
Nor is there any evidence that the First Amendment was designed to limit the government’s own
speech, including “public propaganda” like Buy War Bonds!, Support the Troops!, or even Have
A T-Bone Tonight! And -- as Johanns establishes -- it does not prevent the government from
funding its speech through general tax revenues or even targeted assessments like taxes on the
sale of commodities, which, as Justice Thomas noted in his concurrence, have been around since
the founding, even though they have been abhorred by some almost as long (remember the
Whiskey Rebellion?).
It is true, as the Johanns dissenters pointed out and opponents of the government speech
doctrine often trot out, that Jefferson proclaimed that “to compel a man to furnish contributions
of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” But
Jefferson’s outcry was specifically addressed to the colonies’ practice of imposing taxes to
support the church. The framers saw fit to address that problem in the Establishment Clause of
the Constitution, not the Speech Clause. Note the irony, too, of invoking Jefferson -- one of the
nation’s greatest proponents of agricultural products and an agrarian society -- in seeking to kill
a government program that was enacted to save the ranching way of life following a long-term
depression in the beef industry in the 1970s and 1980s.
The public forum cases are also far afield. The beef checkoff program does not open any sort of
“forum” for speech. Congress has not agreed to fund private speech or different viewpoints
about beef. Congress itself set the message (all beef is good); it created a special administrative
entity to propagate that message; and it made that entity (and all advertisements paid for with
checkoff funds) subject to the control of the Secretary of Agriculture. And where the
government itself is speaking, the Court has already held that the rule against viewpoint
discrimination does not apply. If it did, the government could never take a position on an issue
and speak its mind. Some might prefer a muzzle, especially on some issues. But, as Justice
Scalia explained in his Finley concurrence, “it is the very business of government to favor and
disfavor points of view on (in modern times, at least) innumerable subjects -- which is the main
reason we have decided to elect those who run the government, rather than save money by
making their posts hereditary.”
One of the more interesting aspects of the decision involves the Court’s resolution of the
plaintiff’s “attribution” claim. The Court squarely rejected the requirement -- suggested by the
dissent -- “that government speech funded by a targeted assessment must identify government as
the speaker.” (How extraordinary would it have been if the Supreme Court had told the
Congress and the Executive how to speak: “First you must clearly introduce yourself, and
then…” It sounds like a finishing school lesson.) The Court then went on to explain that “the
correct focus is not on whether the ads’ audience realizes the government is speaking, but on the
compelled assessment’s purported interference with [the plaintiff’s] First Amendment rights.”
To show a violation of the First Amendment under that framework, the taxpayer must establish
that a viewer would identify the speech as the plaintiff’s own speech. That will be an extremely
difficult showing to make.
As the dissent observed, “the government-speech doctrine is relatively new.” After Johanns, it is
surely here to stay. Looking back at the lines of First Amendment case law that led to the result
in Johanns, it is perhaps easy in hindsight -- and with the refreshing clarity of Justice Scalia’s
reasoning -- to see how the Court got there. But I’ll end by agreeing with Erik that it was
nonetheless a big doctrinal step for the Court to take, and those looking for examples of the
major doctrinal developments of the Rehnquist Court can find a nice example here.