Government may not speak out-of-turn.

• Author: Goldberg, Steven H.
• Position: Symposium: The Government Speech Doctrine

"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.

1. 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." (13)

   Any trial lawyer paying attention would object that Justice Scalia's dispositive question is compound and not necessarily susceptible to a single answer. Whether the beef ads were government speech is a very different question from whether government speech is exempt from First Amendment scrutiny.

2. THE GOVERNMENT AS SHILL: "BEEF, IT'S WHAT'S FOR DINNER!"

   The Johanns decision, although it provides no support for the proposition that government speech is exempt from First Amendment scrutiny, does illuminate one of the significant flaws with the viewpoint-enabled government speech doctrine Justice Alito invented in Pleasant Grove. That doctrine allows the government, through a fiction, to promote one side's view about a societal dispute over a contrary view, though the subject is one over which government has no power of action.

   No one knew the Johanns advertisements were the government speaking. The "America's Beef Producers" mask allowed the government to promote the view of the ordinary beef producers over that of the Angus and Hereford breeders. To make matters worse, the latter had to contribute to the ads while the government hid its role in the charade.

   Justice Souter's Johanns dissent, joined by Justices Stevens and Kennedy, made a point of the problem raised if speech was labeled the government's, but no one knew it was the government speaking. Citing dicta from Board of Regents of Univ. of Wis. System v. Southworth, (14) Justice Souter acknowledged a "relatively new and correspondingly imprecise" (15) government speech doctrine and quoted Southworth's observation that if such a doctrine existed, it was "inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies." (16) He then emphasized the Southworth view that if any such doctrine existed, it would be justified by democratic accountability:

   When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. (17) Justice Scalia's opinion is dismissive of a democratic accountability justification for a government speech doctrine that permits government viewpoint. He admits that "[s]ome of our cases have justified compelled funding of government speech by pointing out that government speech is subject to democratic accountability," but goes on to say "beef advertisements are subject to political safeguards more than adequate to set them apart from private messages" because they are subject to government control. (18) He concludes the argument by asserting that, in any event, the requirement of the subsidy for the speech does not depend upon "whether or not the reasonable viewer would identify the speech as the government's." (19)

   Whatever the First Amendment might stand for, there is nothing in its history or purpose to suggest it exists to allow government to act as a shill for one private opinion as opposed to another. Shill, a harsh term, is not used lightly. A shill is "a decoy or accomplice, especially one posing as an enthusiastic or successful customer to encourage other buyers, gamblers, etc.," (20) and that is exactly what the Johanns decision facilitated.

   The result of the Johanns decision is that the charade of government speech, not identified as the government's, allows some beef producers to persuade consumers that "beef is beef" to the consternation of those producers who think their certified Angus or Hereford beef is superior and would like to use their money to say so. Instead, they have to pay for a contrary message that makes it seem as if they agree that their beef is not special. Steak lovers unite! It is not just the producers of great beef that suffer from the government shilling for those who sell canners and cutters as if they could be slaughtered for quality beef.

   My affection for a good Angus steak notwithstanding, I do not here intend to start a quarrel with Professor Post's assertion that Johanns was a "welcome development" in beginning to solve the "complex First Amendment questions" about compelled subsidization of speech that were created in United Foods and "which the Court has been unable to master." (21) I do hope to demonstrate that Johanns provided no authority for the invention in Pleasant Grove of a doctrine that empowers government to speak without First Amendment scrutiny.

3. JOHANNS DICTA IS WRONG: THE CONSTITUTION DOES NOT EMPOWER THE GOVERNMENT TO SPEAK

   All of the empowering of government in the Constitution is about acts, not speech. None of the eighteen clauses of Article I, [section] 8 empower Congress to legislate speech, and nowhere in Article II, [section] 2 does the Constitution empower the President qua President to speak Article II [section] 3, to be sure, not only empowers, but requires, the President "from time to time to give to the Congress information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient;" but that's it for constitutionally empowered or required government speech. (22) There is, of course, the First Amendment, that whatever else it meant, told the new federal government not to meddle with speech. (23)

   Before Johanns there is no example of the Court traversing a free speech challenge by labeling the speech as the government's and holding that government can say anything it wishes without concern for the free speech clause. Indeed, two "compelled subsidy" of speech cases before Johanns demonstrate that the government power to speak, as suggested in the Southworth dicta, is only an adjunct to government's power to act.

   Glickman v. Wileman Brothers & Elliott, Inc. (24) rejected a First Amendment challenge to a mandated subsidy from California fruit tree producers. Four years later, United Foods upheld a First Amendment challenge to a mandated subsidy from mushroom producers. Although Glickman and United Foods reached different...