SOUTER, J., DISSENTING
JOHANNS V. LIVESTOCK MARKETING ASSN.
544 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NOS. 03-1164 AND 03-1165
MIKE JOHANNS, SECRETARY OF AGRICULTURE,
et al., PETITIONERS
03–1164
v.
LIVESTOCK MARKETING ASSOCIATION
et al.
NEBRASKA CATTLEMEN, INC., et al.,
PETITIONERS
03–1165
v.
LIVESTOCK MARKETING ASSOCIATION
et al.
on writs of certiorari to the united states
court of appeals for the eighth circuit
[May 23, 2005]
Justice Souter, with
whom Justice Stevens and Justice Kennedy join, dissenting.
The Beef Promotion and Research
Act of 1985, known as the Beef Act, taxes cattle sold in or
imported into the United States at one dollar a head. 7 U.
S. C. §2904(8). Much of the revenue is spent urging people to
eat beef, as in advertisements with the slogan, “Beef. It’s What’s
for Dinner.” App. 50. Respondent taxpayers, “South Dakota and
Montana ranchers and organizations representing their interests,”
Brief for Respondents 1, object to the tax because they disagree
with the advertisements’ content, which they see as a generic
message that “beef is good.” This message, the ranchers say,
ignores the fact that not all beef is the same; the ads fail to
distinguish, for example, the American ranchers’ grain-fed beef
from the grass-fed beef predominant in the imports, which the
Americans consider inferior.
The ranchers’ complaint is on all fours with
the objection of the mushroom growers in
United States v.
United Foods, Inc.,
533 U. S. 405 (2001), where a similar
statutory exaction was struck down as a compelled subsidy of speech
prohibited by the First Amendment absent a comprehensive regulatory
scheme to which the speech was incidental. The defense of the
Government’s actions in these cases, however, differs from the
position of the United States in
United Foods. There we
left open the possibility that a compelled subsidy would be
justifiable not only as one element of an otherwise valid
regulatory scheme, but also as speech of the Government itself,
which the Government may pay for with revenue (usually from taxes)
exacted from those who dissent from the message as well as from
those who agree with it or do not care about it. Not surprisingly,
the Government argues here that the beef advertising is its own
speech, exempting it from the First Amendment bar against
extracting special subsidies from those unwilling to underwrite an
objectionable message.
The Court accepts the defense unwisely. The
error is not that government speech can never justify compelling a
subsidy, but that a compelled subsidy should not be justifiable by
speech unless the government must put that speech forward as its
own. Otherwise there is no check whatever on government’s power to
compel special speech subsidies, and the rule of
United
Foods is a dead letter. I take the view that if government
relies on the government-speech doctrine to compel specific groups
to fund speech with targeted taxes, it must make itself politically
accountable by indicating that the content actually is a government
message, not just the statement of one self-interested group the
government is currently willing to invest with power. Sometimes, as
in these very cases, government can make an effective disclosure
only by explicitly labeling the speech as its own. Because the Beef
Act fails to require the Government to show its hand, I would
affirm the judgment of the Court of Appeals holding the Act
unconstitutional, and I respectfully dissent from the Court’s
decision to condone this compelled subsidy.[
Footnote 1]
***
In 1779 Jefferson wrote that “to
compel a man to furnish contributions of money for the propagation
of opinions which he disbelieves, is sinful and tyrannical.” 5 The
Founders’ Constitution, §37, A Bill for Establishing Religious
Freedom, p. 77 (1987), codified in 1786 at Va. Code Ann. §57–1
(Lexis 2003). Although he was not thinking about compelled
advertising of farm produce, we echoed Jefferson’s view four years
ago in
United Foods, where we said that “First Amendment
values are at serious risk if the government can compel a
particular citizen, or a discrete group of citizens, to pay special
subsidies for speech on the side that it favors … .” 533 U.
S., at 411.
United Foods addressed a scheme of enforced
exaction virtually identical to the one here, except that the
product involved was mushrooms, not beef. There, as here, a federal
statute forced a targeted group (mushroom growers) to pay a tax
that funded ads promoting its members’ produce at a generic level
objectionable to some of them. We held that the mushroom statute
violated the growers’ First Amendment right to refuse to pay for
expression when they object to its content.[
Footnote 2]
As the Court says,
ante,
at 5–6,
United Foods was a descendent of two lines of
precedent. The first, exemplified by
West Virginia Bd. of
Ed. v.
Barnette,
319 U. S. 624 (1943), and
Wooley v.
Maynard,
430 U. S. 705 (1977), stands for the
principle that government may not force individuals to utter or
convey messages they disagree with or, indeed, to say anything at
all. The second, comprising
Keller v.
State Bar of
Cal.,
496 U. S.
1 (1990), and
Abood v.
Detroit Bd. of Ed.,
431 U. S. 209
(1977), is authority for the related proposition that, absent
substantial justification, government may not force targeted
individuals to pay for others to speak.
Four years before
United Foods we
held that one such ground was present where enforced contribution
to objectionable speech is incidental to a “broader collective
enterprise in which th[e] freedom to act independently is already
constrained by the regulatory scheme.”
Glickman v.
Wileman Brothers & Elliott, Inc.,
521 U. S. 457, 469 (1997). As noted,
United Foods left open the possibility of another
justification, that the objectionable message is “government
speech,” which our case law suggests is immune to many types of
First Amendment challenge. See
ante, at 7–8.
Although we declined to address the pertinence
of a government-speech justification in
United Foods, it
is crucial to the defense of the statute here because, as the
District Court and the Court of Appeals observed (and as the Court
appears to agree), these cases are factually on all fours with
United Foods. See 335 F. 3d 711, 717 (CA8 2003)
(“[W]e agree with the district court that ‘[t]he beef checkoff is,
in all material respects, identical to the mushroom
checkoff’ ” program challenged in
United Foods
(quoting 207 F. Supp. 2d 992, 1002 (SD 2002))), quoted
ante, at 6. Unless, then, the doctrine of government
speech is defined in such a way as to justify the targeted
compulsion here, the enforced subsidy for beef ads must fail along
with the mushroom subsidy. In my judgment the beef subvention
should fail, for I, unlike the Court, do not believe that the beef
ads qualify for treatment as speech by the Government.
The government-speech doctrine is relatively
new, and correspondingly imprecise. In fact, the few cases in which
we have addressed the doctrine have for the most part not gone much
beyond such broad observations as “[t]he government, as a general
rule, may support valid programs and policies by taxes or other
exactions binding on protesting parties. Within this broader
principle it seems inevitable that funds raised by the government
will be spent for speech and other expression to advocate and
defend its own policies.”
Board of Regents of Univ. of Wis.
System v.
Southworth,
529 U. S. 217, 229
(2000). Even at this somewhat early stage of development, however,
two points about the doctrine are clear.
The first point of certainty is the need to
recognize the legitimacy of government’s power to speak despite
objections by dissenters whose taxes or other exactions necessarily
go in some measure to putting the offensive message forward to be
heard. To govern, government has to say something, and a First
Amendment heckler’s veto of any forced contribution to raising the
government’s voice in the “marketplace of ideas”[
Footnote 3] would be out of the question. See
Keller,
supra, at 12–13 (“If every citizen were
to have a right to insist that no one paid by public funds express
a view with which he disagreed, debate over issues of great concern
to the public would be limited to those in the private sector, and
the process of government as we know it radically
transformed”).
The second fixed point of government-speech
doctrine is that the First Amendment interest in avoiding forced
subsidies is served, though not necessarily satisfied, by the
political process as a check on what government chooses to say.
“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.”
Southworth,
supra, at 235; see also
Abood,
supra, at 259, n. 13 (Powell, J.,
concurring in judgment) (“[T]he reason for permitting the
government to compel the payment of taxes and to spend money on
controversial projects is that the government is representative of
the people”). Democracy, in other words, ensures that government is
not untouchable when its speech rubs against the First Amendment
interests of those who object to supporting it; if enough voters
disagree with what government says, the next election will cancel
the message.
The adequacy of the democratic process to
render the subsidization of government speech tolerable is,
naturally, tied to the character of the subsidy. For when
government funds its speech with general tax revenue, as it usually
does, no individual taxpayer or group of taxpayers can lay claim to
a special, or even a particularly strong, connection to the money
spent (and hence to the speech funded). See
Massachusetts
v.
Mellon,
262 U. S. 447, 486–487 (1923). Outrage
is likely to be rare, and disagreement tends to stay temperate. But
the relative palatability of a remote subsidy shared by every
taxpayer is not to be found when the speech is funded with targeted
taxes. For then, as here, the particular interests of those singled
out to pay the tax are closely linked with the expression, and
taxpayers who disagree with it suffer a more acute limitation on
their presumptive autonomy as speakers to decide what to say and
what to pay for others to say. See
Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc.,
515 U. S.
557, 573 (1995) (“[T]he fundamental rule of protection under
the First Amendment [is] that a speaker has the autonomy to choose
the content of his own message”).[
Footnote 4]
When a targeted assessment thus makes the
First Amendment affront more galling, it does, or should, follow
that greater care is required to assure that the political process
can practically respond to limit the compulsion Jefferson inveighed
against. Whereas it would simply be unrealistic to think that every
speech subsidy from general revenue could or should be scrutinized
for its amenability to effective political response, the
less-common targeted speech subsidies can be reviewed specifically
for their susceptibility to response by the voters, and the
intensity of the provocation experienced by the targeted group
justifies just such scrutiny.
In these cases, the requirement of effective
public accountability means the ranchers ought to prevail, it being
clear that the Beef Act does not establish an advertising scheme
subject to effective democratic checks. The reason for this is
simple: the ads are not required to show any sign of being speech
by the Government, and experience under the Act demonstrates how
effectively the Government has masked its role in producing the
ads.[
Footnote 5] Most
obviously, many of them include the tag line, “[f]unded by
America’s Beef Producers,” App. 50–51, which all but ensures that
no one reading them will suspect that the message comes from the
National Government.[
Footnote
6] But the tag line just underscores the point that would be
true without it, that readers would most naturally think that ads
urging people to have beef for dinner were placed and paid for by
the beef producers who stand to profit when beef is on the table.
No one hearing a commercial for Pepsi or Levi’s thinks Uncle Sam is
the man talking behind the curtain. Why would a person reading a
beef ad think Uncle Sam was trying to make him eat more
steak?[
Footnote 7] Given the
circumstances, it is hard to see why anyone would suspect the
Government was behind the message unless the message came out and
said so.
The Court takes the view that because Congress
authorized this scheme and the Government controls (or at least has
a veto on) the content of the beef ads, the need for democratic
accountability has been satisfied. See
ante, at 11–12. But
the Court has it backwards. It means nothing that Government
officials control the message if that fact is never required to be
made apparent to those who get the message, let alone if it is
affirmatively concealed from them. The political accountability of
the officials with control is insufficient, in other words, just
because those officials are allowed to use their control (and in
fact are deliberately using it) to conceal their role from the
voters with the power to hold them accountable.[
Footnote 8] Unless the putative government speech
appears to be coming from the government, its governmental origin
cannot possibly justify the burden on the First Amendment interests
of the dissenters targeted to pay for it.[
Footnote 9]
Nor is it any answer that resourceful
taxpayers could discover the Government behind the beef ads by
doing research on the implementation of the Beef Act. Of course a
taxpayer could discover the facts by looking hard enough, but what
would tip off the taxpayer to look? And even if a few taxpayers did
unearth the truth it would not matter, for the First Amendment harm
cannot be mitigated by the possibility that a few cognoscenti may
actually understand how the scheme works. If the judiciary is
justified in keeping hands off special assessments on dissenters
from government speech, it is because there is a practical
opportunity for political response; esoteric knowledge on the part
of a few will not do.
In sum, the First Amendment cannot be
implemented by sanctioning government deception by omission (or by
misleading statement) of the sort the Court today condones, and
expression that is not ostensibly governmental, which government is
not required to embrace as publicly as it speaks, cannot constitute
government speech sufficient to justify enforcement of a targeted
subsidy to broadcast it. The Court of Appeals thus correctly held
that
United Foods renders the Beef Act’s
mandatory-assessment provisions unconstitutional.[
Footnote 10]
Footnote 1
The Government’s petition for certiorari also
presented a question as to whether more limited relief might be
available, but the Court denied certiorari on that question and
hence it is not before us.
Footnote 2
We also noted that while the mushroom
growers’ disagreement with the ads’ message “could be seen as minor
… , there is no apparent principle which distinguishes out of hand
minor debates about whether a branded mushroom is better than just
any mushroom.”
United Foods, 533 U. S., at 411. The First
Amendment, in other words, is not limited to “serious” or
“substantial” disputes about content. Even if it were, the mushroom
growers could have argued, as the ranchers could argue here, that
because they would prefer to say nothing than to convey the message
in the ads, the ads violate their First Amendment right not to
speak at all. See,
e.g.,
Harper & Row, Publishers,
Inc. v.
Nation Enterprises,
471 U. S. 539, 559
(1985) (“There is necessarily, and within suitably defined areas, a
[First Amendment] freedom
not to speak publicly, one which
serves the same ultimate end as freedom of speech in its
affirmative aspect”).
Footnote 3
See
Abrams v.
United
States,
250 U.
S. 616, 630 (1919) (Holmes, J., joined by Brandeis, J.,
dissenting) (“[T]he ultimate good desired is better reached by free
trade in ideas—th[e] … best test of truth is the power of the
thought to get itself accepted in the competition of the market
…”).
Footnote 4
The Court asserts that in fact there is no
difference between a taxpayer’s challenge to speech funded with
general revenues, which our precedents foreclose, and a challenge
to speech funded with targeted taxes. But the Court’s lone
authority for that position, our statement in
United
States v.
Lee,
455 U. S. 252 (1982),
that “[t]here is no principled way … to distinguish between general
taxes and those imposed under the Social Security Act,”
id., at 260, quoted
ante, at 11, is unavailing.
Lee involved a religious objection to paying Social
Security taxes, and the Court’s statement in that case was grounded
in the recognition that if the Government were required to
accommodate the objection, there would be nothing to stop others
from raising a similar religious objection to paying “general
taxes.” Here there is no comparable danger because of the
commonsense notion that individuals feel a closer connection to
speech that they are singled out to fund with targeted taxes than
they do to expression paid for with general revenues. We recognized
this in
Massachusetts v.
Mellon,
262 U. S. 447 (1923), where we noted
that the individual taxpayer’s “interest in the moneys of the
Treasury—partly realized from taxation and partly from other
sources—is shared with millions of others [and] is comparatively
minute and indeterminable.”
Id., at 487. This commonsense
notion, then, provides a “principled way” to distinguish in this
context between targeted and general taxes. The Court in
Lee seemed to recognize that its reasoning might be
limited in this way, as the unredacted version of its statement
reads: “[t]here is no principled way, however, for purposes of this
case, to distinguish between general taxes and those imposed under
the Social Security Act.” 455 U. S., at 260.
Footnote 5
The Court thinks it is enough that the
Government is not required to mislead in this way.
Ante,
at 12, n. 7. This view that the statute is saved because it
might be applied without misleading readers apparently reflects the
Court’s position that these cases involve a facial challenge.
Ante, at 13. But the challenge here is to the application
of the statute through actual, misleading ads, as shown by a record
replete with examples.
Footnote 6
Disputing this, petitioners Nebraska
Cattlemen, Inc., et al., suggest that any danger of confusion
is eliminated by the inclusion in the beef ads of a red check mark
with the word “beef” atop it, because this “distinctive checkoff
logo is a direct sign that the ads are disseminated pursuant to the
federal checkoff program.” Reply Brief for Petitioners in No.
03–1165, at 15–16. It seems to me quite implausible that most (or
even some) Americans associate a red check mark underneath the word
“beef” with the Federal Government. Indeed, it strikes me that even
someone generally familiar with the Beef Act and its taxation
mandate might not recognize the checkoff logo as signifying
Government involvement.
Footnote 7
Moreover, anyone who did draw such an
unlikely connection would also have to believe that Uncle Sam was
having a hard time making his mind up, for other, expressly
governmental messages take a different view of how much beef
Americans should be eating. Dietary Guidelines for Americans 2005,
a publication of the Departments of Agriculture and of Health and
Human Services, discusses beef in a chapter entitled “Fats.”
Http://www.health.gov/dietaryguidelines/dga2005/document (as
visited May 16, 2006, and available in Clerk of Court’s case file).
The message of that chapter is that most Americans need to reduce
their consumption of fats, and should get most of the fats they do
eat from sources other than beef, namely fish, nuts, and vegetable
oils. See
id., at 29–31. That the report, which the
Secretaries of Agriculture and of Health and Human Services say “is
intended to be a primary source of dietary health information,”
id., at i, does not encourage the consumption of beef (as
the beef ads do) is clear from the fact that a different chapter,
which discusses fruits, vegetables, whole grains, and fat-free
dairy products, is entitled “Food Groups to Encourage.”
Id., at 23.
Footnote 8
Notably, the Court nowhere addresses how, or
even whether, the benefits of allowing government to mislead
taxpayers by concealing its sponsorship of expression outweigh the
additional imposition on First Amendment rights that results from
it. Indeed, the Court describes no benefits from its approach and
gives no reason to think First Amendment doctrine should
accommodate the Government’s subterfuge. The Court merely observes
that no precedent requires the Government to show its hand when it
seeks to defend a targeted assessment by claiming government
speech.
Ante, at 12, n. 7. That is of course to be
expected, since the government-speech doctrine is so new that the
Government has never before enjoyed the opportunity to invoke it in
this Court when attempting to justify the type of compelled subsidy
struck down in
United Foods. Since the Court now says the
Government need never show its hand in cases like this one,
ante, at 12–13, there is no chance for an effective
political check on forced funding for speech, however
objectionable.
Footnote 9
That said, I do not mean to suggest that
explicitly labeling speech as that of government would suffice when
individuals must personally convey government’s message, as in
West Virginia Bd. of Ed. v.
Barnette,
319 U. S. 624 (1943), and
Wooley v.
Maynard,
430 U. S. 705 (1977). The infringement
on the speaker’s autonomy in those situations is greater than in
cases like the ones before us today, so great that it cannot be
saved by allowing speakers to inform listeners that they (the
speakers) are simply communicating a government message or that
they disagree with the message. The Court apparently took the same
view in
Wooley, as it was unmoved by the dissent’s
observation in that case that New Hampshire drivers were free to
“place on their bumper a conspicuous bumper sticker explaining in
no uncertain terms that they do not profess the motto ‘Live Free or
Die.’ ”
Id., at 722 (opinion of Rehnquist, J.).
Footnote 10
Petitioners also defend the Beef Act by
pointing to
Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm’n of N. Y.,
447 U. S. 557 (1980),
where we subjected restrictions on commercial speech to a less
rigorous level of review than that applied to restrictions on most
other types of speech. But the Court strongly suggested in
Glickman v.
Wileman Brothers & Elliott, Inc.,
521 U. S. 457, 469 (1997), and in
United States v.
United Foods, Inc.,
533 U. S. 405 (2001), both that
Central Hudson scrutiny is not appropriate in a case
involving compelled speech rather than restrictions on speech, and
that even if some relaxed standard of review analogous to
Central Hudson were employed the Beef Act would not
survive it. See
Glickman,
supra, at 474,
n. 18 (“The Court of Appeals fails to explain why the
Central Hudson test, which involved a restriction on
commercial speech, should govern a case involving the compelled
funding of speech”);
United Foods,
supra, at 410
(“[E]ven viewing commercial speech as entitled to lesser
protection, we find no basis under either
Glickman or our
other precedents to sustain the compelled assessments sought in
this case”). Petitioners do not explain why we should depart from
these intimations that restrictions on speech are not judged by the
same standard as compelled speech.
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