Forced commercial speech and the government speech doctrine: discerning and reducing the uncertainty following Johanns v. Livestock Marketing Association.

• Author: Dvorak, Daniel A.

1. 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 I. INTRODUCTION

   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.

   This Note first explores the development of the Supreme Court's commercial speech jurisprudence, tracing its growth from the beginning in the 1980s to the present. Next, this Note discusses the state of the law dealing with forced commercial speech and the Government Speech Doctrine, paying special attention to the uncertainty arising from recent Supreme Court decisions. Then, the Note proposes three possible changes that could be implemented either legislatively or judicially in an effort to reduce uncertainty and redefine the limits of allowable forced commercial speech to more acceptable levels.

2. BACKGROUND: THE DEVELOPMENT OF COMMERCIAL SPEECH JURISPRUDENCE

   1. Origins of Commercial Speech Protection

      The first Supreme Court case to extend First Amendment protection to purely commercial speech was Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council. (7) In that case, an eight-member majority held that a state may not "completely suppress the dissemination of concededly truthful information about entirely lawful activity." (8) Prior to this decision, courts considered commercial speech--defined as "speech which does 'no more than propose a commercial transaction,'" (9)--unprotected by the First Amendment. (10) The majority held that because even purely commercial speech can be just as important, if not more important, to individual choice and liberty as political or ideological speech, it deserves to be protected in the same manner as speech at the core of the Amendment's protection. (11)

      The Court's extension of protection, however, was not without limits. The Court did not afford protection to commercial speech that is false or misleading, (12) or that deals with an illegal product or transaction. (13) It is within this context of First Amendment protection that the Court later analyzed the constitutionality of forced commercial speech, which is the subject of this Note.

      Some years later, the Court elaborated on the protections afforded to commercial speech by proffering a four-part analysis to determine if a regulation prohibiting commercial speech is constitutional. First, the Court decides whether the speech is protected commercial speech. To be protected, the speech must concern lawful activity and not be misleading. Second, the Court determines if the stated government interest in the regulation is substantial. If the Court answers the previous two inquiries in the affirmative, it then determines whether the regulation advances the stated government interest. Finally, the Court decides whether the regulation is over-inclusive or overbroad in advancing the government interest. (14) Still recognizing that some commercial speech remains outside the bounds of First Amendment protection, (15) the Court--using the above four-part analysis--struck down a state regulation seeking to prohibit a state created monopoly electric utility from advertising. (16)

      The Central Hudson decision has other important ramifications for compelled commercial speech because of the distinct judicial positions developed by members of the Court that have remained in later decisions. For example, Justice Rehnquist dissented to the Court's decision on the grounds that commercial speech should not be protected by the First Amendment in the same regard as political or ideological speech, (17) and because he believed the state law to be "more akin to an economic regulation to which virtually complete deference should be accorded by this Court." (18) Both of these positions are central to the outcome of subsequent compelled commercial speech decisions, (19) which find their jurisprudential roots, at least in part, in Central Hudson.

   2. Origins of the Unconstitutionality of Compelled Speech

      An individual's right to speak and express him or herself is widely believed to be at the core of the First Amendment's free speech protections. However, protection of the converse value, the right not to speak or express oneself against the force or compulsion of the government or state, was previously not so certain. In West Virginia State Board of Education v. Barnette, (20) the Court struck down a state statute requiring all students and teachers to salute the American flag and recite the Pledge of Allegiance. (21)

      The Court has also upheld a citizen's right to be free from compulsion to display his state's motto on his vehicle's license plate. (22) More broadly, the Court posited that "where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message." (23) This dicta would seem to suggest that state action is unconstitutional whenever it compels a citizen to express an ideology that is not his own. However, a separate requirement to the successful invocation of the First Amendment, emphasized by Justice Rehnquist, is to show that the state "place[s] the citizen in the position of either apparently or actually 'asserting as true' the message." (24) This concept, known as attribution, is a fundamental component of a successful compelled commercial speech challenge. (25)

   3. Supreme Court Compelled Commercial Speech Jurisprudence

      1. Glickman v. Wileman Bros. & Elliot

         One of the Supreme Court's first decisions regarding compelled commercial speech came in 1997, when it decided Glickman v. Wileman Bros. & Elliot. (26) In that case, large producers of various fruits challenged a federal statute (27) which, among other things, (28) compelled all producers to contribute to a generic advertising program, which these particular producers opposed. (29) The producers challenged the statute on the theory that forcing producers to finance generic advertising--commercial speech--to which they objected, was a violation of the producers' First Amendment right not to speak. (30)

         The Court responded to this challenge by upholding the compelled funding statute for several reasons. The Court determined that because "the marketing orders impose[d] no restraint on the freedom of any producer to communicate any message to any audience," meaning "they do not compel any person to engage in any actual or symbolic speech," and...