*1 JOHANNS, SECRETARY OF AGRICULTURE, et al. v.
LIVESTOCK MARKETING ASSOCIATION еt al. No. 03-1164. Argued December May 2004 Decided 2005* *Together 03-1165, Cattlemen, Inc., with No. Nebraska et al. v. Live al., stock Marketing Association et also certiorari to the same court. *2 Rehnquist, Court, in which Scalia, J., opinion delivered the Thomas, J., post, JJ., Thomas, Breyer, joined. and O’Connor, J.,C. and Ginsburg, concurring opinions. J., filed Breyer, p. post, p. and J., Kennedy, p. 569. post, judgment, in the concurring
J., opinion an filed opin- Souter, J., dissenting filed a 570. opinion, post, p. dissenting filed a p. Kennedy,-JJ., post, 570. joined, ion, Stevens in which Kneedler cause Deputy Solicitor General argued him 03-1164. With in No. the federal petitioners Clement, Acting General Solicitor cases briefs in were .both Attorney Irving Assistant Keisler, General L. Gornstein, Douglas Letter, N. and Matthew M. Collette.
Gregory G. Garre the cause for in argued petitioners No. 03-1165. With him on the briefs was Lorane F. Hebert.
Laurence H. Tribe the cause for argued respondents on the brief were Thomas Goldstein, both him cases. With Amy Philip Howe, Olsson, Ronald A. Parsons, Jr., Heidepriem.† Scott N.
†Briefs of amici curiae urging reversal both cases were filed for the Lockyer, Attorney Bill State of California, California Rich- General of Frank, ard M. Hackenbracht, Mary E. Deputy Attorney General, Chief Genеral, Senior Assistant Attorney Berg, Deputy Attorney Linda L. General; Abbott, by Greg for the State of Texas et al. Attorney General of *3 Cruz, R. Ted Texas, L. Craft, General, Ranee Solicitor Assistant Solicitor McBee, Barry R. General, and Edward Attorney General, First Assistant Burbach, D. General, VázquezIrizarry, William Deputy Attorney by Sec- retary Rico, of Justice of Puerto by Attorneys and General for their Troy respective King Terry Goddard of Alabama, States as follows: of Mike Arizona, Beebe of Ken Salazar of Arkansas, M. Jane Colorado, Brady Delaware, Crist, Jr., Charles J. of of Thurbert E. Baker of Florida, Mark J. Bennett of Lawrence G. Wasden of Georgia, Hawaii, Lisa Idaho, Madigan Illinois, Gregory Thomas J. Miller of Iowa, of D. Stumbo of Foti, Jr., Curran, Jr., Charles C. Kentucky, Louisiana, Joseph J. of of Maryland, Michael A. Cox of Jim Hood of Mississippi, Jeremiah Michigan, W. (Jay) Nixon of Missouri, Bruning Jon Nebraska, Patricia A. Ma- of drid of Wayne Stenehjem of North Mexico, Jim Petro of Dakota, New Ohio, W. A. Drew Oklahoma, Hardy Myers Edmondson of Oregon, of Gerald J. Pappert Pennsylvania, Henry McMaster of South Carolina, of Paul G. of Summers Mark L. Tennessee, Utah, William H. of Shurtleff Sorrell of Jerry Kilgore W. Vermont, Gregoire Christine 0. of Virginia, Washington, Peggy Lautenschlager A. Wisconsin, and Pаtrick J. Crank of Wyoming; for the American Cotton Shippers Association et al. Wal- by Harris; ter Dellinger and Pamela for the Agricultural California Issues Waxman, Moss, Zubler, Seth P. Randolph D. Todd and Brian by Forum Boynton; M. Association, Inc., Michigan by for the Pork Producers et al. Mansfield; Edward M. A. David Bono and by for Thad Cochran et al. Norton; Gerald P. and for 113 Agricultural Industry by Associations Charles L. Babcock and T. David Moran. Briefs of amici curiae urging affirmance both cases were filed for the Moeller, Stokes, Susan E. David R.
Campaign Family by Farms et al. opinion delivered of the Court.
Justice Scalia eight years, For the third time we consider whether a program generic advertising promote federal that finances agricultural product an violates the First In Amendment. previous dispositive question cases, these unlike two, generic advertising is whether the at issue is the Govern- exempt ment’s own and therefore is from First scrutiny.
I A (Beef The Beef Promotion and Research Act of 1985 Act Act), policy or promot- Stat. announces a federal ing marketing consumption prod- of “beef and beef using by ucts,” funds raised an assessment on cattle sales 2901(b). § importation. 7 U. S. C. statute directs Secretary Agriculture implement poliсy this (Beef issuing a Beef Promotion and Research Order Order Order), specifies key §2903, and four terms it must con- Secretary appoint tain: is to a Cattlemen’s Beef Promo- (Beef Board), tion and Research Board Board or whose mem- geographically representative group bers are to be a of beef producers importers, nominated trade associations. 2904(1). § Operating The Beef Board is to convene an Com- composed repre- mittee, of 10 Beef Board members and 10 *4 Krub; and Karen R. for Apparel Importers by the Coalition of Cotton Raul, Phillips, Carter G. Man Charles Eric A. Shumsky, and Michael C. Soules; DKT Liberty Carpenter, Julie M. Daniel et Project by al. Mach, O’Neil; Nelson; M. Robert Scott L. Citizen, Inc., and for Public by Reuter; Farms, Inc., Finnerty Corinne R. and Loren D. by for Rose Acre for Washington Legal Popeo Daniel J. Rich- by Foundation et al. and A. Samp; Leigh- ard C. Jaffe, Erik S. Brian by for Jeanne Charter et al. ton, Gold, Giachino, James A. Moody, Steven B. Renee Michael P. McMa- hon, Townes; Virginia B. Cochran et al. William Joseph by and and for Mellor, H. Steven M. Simpson, and Scott G. Bullock. Richard,
Barry Hank B. Campbell, Monterey Campbell filed a brief and amicus Florida, Citrus, in both cases for thе Department State of as curiae.
554 councils. by of state beef a federation named
sentatives §2904(4)(A). impose $l-per-head Secretary a is to The “checkoff”) (or importation cat- or on all sales assessment products. imported beef comparable on assessment tle and a §2904(8). beef- to fund is to be used the assessment And designed campaigns, including promotional projects, related by approved the Secre- by Operating Committee (C). 2904(4)(B), §§ tary. speci- Secretary promulgated with the the Beef Order
The by primarily state is collected fied terms. The assessment proceeds Beef to the then forward the councils, which beef 1260.172(a)(5) (2004).1 § Operating Board. CFR proposes projects the checkoff to be funded Committee 1260.167(a). § including promotion and research. (see §§2.22(a)(l)(viii)(X), Secretary designee his 2.79(a)(8)(xxxii))approves project and, in the case each promotional each communication. materials, the content of §§1260.168(e), App. 1260.169; 114, 143. temporary promulgated in 1986 on a
The Beef was Order among producers subject on to a referendum basis, 2906(a). permanent. §§2903, it 7 U. S. C. whether to make large majority May to continue it. Since In voted 1988, through has been collectеd than billion time, more $1 (SD 2001), large Supp. 132 F. 2d checkoff, projects spent promotional has been fraction of that sum many using trade- the familiar Beef authorized Act— App. 50. slogan for Dinner.” It’s What’s marked “Beef. example, year Beef Board collected In fiscal spent million over $29 million in assessments over $48 mar- promotion. funds overseas The Board also on domestic such keting research, and food-science market efforts; and informa- beef; the nutritional value evaluations of Board, Beef remitted to the cases, only per 50 cents head is In most to deduct producers allow domestic Beef Act and Beef Order because the to their voluntary contributions to 50 cents up from their assessment $1 1260.172(a)(3) (2004). § §2904(8)(C); 7 CFR S. C. beef councils. U. state *5 campaigns tional for producers. both consumers and beef §§2902(6), 2904(4)(B). (9), (15), 7See U. S. C.
Many promotional messages funded the checkoff 52-53) (though App. not see all, bear the attribution “Funded g., America’s Beef id., Producers.” E. at 50-51. Most print and messages television logo, also bear a Beef Board usually a checkmark g., the word “BEEF.” id., E. 50-52.
B
Respondents are two associations whose members collect
pay
the checkoff, and several individuals who raise and
subject
sell cattle
They
the
Id.,
checkoff.
at 17-19.
sued
Secretary,
Department
Agriculture,
Board
.
in Federal District
on a
Court
number
constitutional and
statutory grounds
particular,
before
us—in
impermissibly
Board
used checkofffunds to send communica-
tions supportive
program
of the
producers.
beef
to beef
Supp.
F.
2d, at 823. Petitioners in No. 03-1165, state beef
producers’ association
producers,
and two individual
inter-
vened
argue
support
defendants
program.
granted
District Court
preliminary injunction,
a limited
which forbade the continued use of checkofffunds to
laud
program
lobby
beef
governmental
or to
relating
action
Id.,
checkoff.
at 832.
litigation
pending,
While was
we held in United States
(2001),
v.
Foods,
United
Inc.,
mandatory
complaint a First Amendment to assert Supp. activity. F. promotional 207 the beef checkoff of (SD 2002); Respondents that noted App. 30-32. 2d commodity, generic a advertising promotes beef as promote the impedes their efforts to they contended, which, grain-fed beef, or beef, superiority alia, inter American of, Angus Hereford beef. or certified respond- Court ruled trial, the District
After a bench that the It claim. declared Amendment ents on their First respond- unconstitutionally compel Order Beef Act Beef rejected they object, and speech to which ents to subsidize the checkoff survives contention that the Government’s only government scrutiny it funds because Amendment entered Supp. court speech. 2d, at 1002-1007. 207 F. injunction barring further collection permanent (allow- willing pay producers to checkoff, even voluntary the court checkoffs, ing of collection continued Act). Id., at “rewrit[ing]” require the Beef thought, would calculating share Believing of cost 1007-1008. subsidy compelled would to the attributable the checkoff of a refund to order grеat, also the court declined be too Finally, the court already Ibid. collected. checkoff funds against “producer injunction permanent its earlier made seeking to in- program praising the beef communications” did court policy. Id., at 1008. The governmental fluence resolu- its respondents’ claims, but certified other not rule pursuant to Fed- as final Amendment claim tion of the First 54(b). Supp. at 1008. 2d, F. Procedure of Civil eral Rule Eighth affirmed. Appeals for the Circuit Court (2003). Court, Court District Unlike 335 F. 3d advertising challenged dispute Appeals did instead, held government speech; it challenges only First Amendment is relevant status funding. compelled challenges to its speech’s content, not speech, funding held, it Compelled id., at 720-721. See may violate the First ques- if even the government’s. tion is the Ibid. (2004). granted
We
certiorari.
We first invalidated an of (1943). Virginia West Bd. Barnette, Ed. v. 319 U. 624 S. of required every The State Pledge schoolchild to recite the Allegiance saluting flag, pain while the American expulsion public from the schools. We held that “le[ave] open public Amendment does not it authorities to compel [a person] to utter” a with which he does agree. not Wooley Id., Maynard, at 634. Likewise, in v. (1977), requiring Hamp- U. S. 705 we held that a New couple shire to bear the State’s motto, “Live Free or Die,” plates impermissible on their compul- cars’ license was an expression. Obliging people sion of private to “use their property ideological as a ‘mobile billboard’ for the State’s message” impermissible compelled expression. amounted to Id., at 715. reasoning compelled-speech of these cases has been
carried over to certain in which individuals are instances compelled speak, private message not to but to subsidize they disagree. although with upheld which Thus, we have state-imposed requirements lawyers be members of the pay public state bar and its dues, annual and that school “shop” representing their join union labor either teachers invali- dues, we have equal the union pay fees” “service politi- speech on compulsory fees to fund use of the dated the Cal., 496 U. S. Bar v. State Keller matters. See cal (1977). Bar (1990); 431 S. 209 Ed., U. Bd. v. Detroit Abood germane not held, was content, we such with or union compelled justified member- regulatory interests disagreed it with making accordingly, those who ship, and supra, Keller, Amendment. See pay the First for it violated supra, 234-235. Abood, at 15-16; at compelled-subsidy sustain us to latter cases led These check- very beef similar challenge to an assessment Foods, advertising. United imposed mushroom to fund off, (“[W]e agree the district supra; 3d, 335 F. at see respects, all material ‘[t]he is,-in checkoff court that in United at issue checkoff’” to the mushroom identical Foods). assumption ad- that the Deciding on the the case speech, see speech, vertising private was Keller Abood concluded 416-417,3 we S., 533 U. producers mushroom controlling. cases, those As in were necessity” pay checkoff; al- obliged “law or were *8 mandatory fee if permit the though Keller would Abood regulatory in scheme,” “germane” “broader to a it were 3 on) (and the dissent relied Foods, distinguished In United the Court Inc., (1997), Elliott, which U. S. 457 & 521 Brothers Wileman Glickman v. advertising pro generic to fund mandatory of assessments upheld the use Foods, Glickman, in United the Gov as fruit. In tree moting California government permissible advertising was that argue not ernment did J., that (Souter, dissenting) 482, (noting 2 S., n. 521 U. at speech. See Rather, the Government argument). such waived had Government advertising generic compelled support contended,-and agreed, we of “collectivist” centralization of the Government’s part legitimately was Court). Here, Id., of the (opinion 475 fruit. at market for tree place” system Foods, regulatory is no broader in United “there Glickman so speech, market unrelated of aspects collectivizes S., 415. U. at controlling. is not only regulatory purpose funding
United Foods the was the advertising. 533 S., U. at 415-416. In invalidating all of the cases exactions to subsidize speech, speech presumed was, or was be, that of an entity government other supra, than the Keller, itself. See supra, at supra, 11, 15-16;Abood, at 212-213; Foods, United Regents at Sys 416-417; see also Board Univ. Wis. of of of (2000) (because Southworth, tem v. 217, 229, U. S. “[t]hе University ha[s] disclaimed that the own,” is its “provide Abood and beginning point analy Keller for our sis”); Rosenberger cf. v. Rector and Va., Visitors Univ. of of (1995) (uni 515 U. concurring) S. 851-852 J., (O’Connor, versity’s likely Student Activities Fund does not unconstitu tionally compel speech “represents govern because it not ment simply belongs resources . . . but a fund that to the students”). compelled-subsidy consistently Our cases have respected principle “Compelled support private aof fundamentally association compelled sup different from port government.” (Powell, supra, Abood, at 259, n. 13 concurring judgment). “Compelled J., support govern programs ment”—even those one does not approve perfectly every of course constitutional, as tax —is payer government programs must attest. And some in entirely advocating position. volve, of, consist “The government, general may support programs as a rule, valid policies by binding protest taxes or other exactions ing parties. principle Within this broader it seems inevita ble that spent funds raised will be expression and other to advocate and defend its own policies.” gener Southworth, S., 529 U. at 229. We have ally though yet squarely compelled assumed, held, that funding government speech does not alone raise supra, ibid.; Keller, concerns. See 12-13; *9 Rosenberger, supra, Wooley, supra, at 833; see also at 721 dissenting). J., (Rehnquist, I—I hH 1—I nor principles, seriously dispute these
Respondents not do matter, their general they that, as contend do only their requires to show challenge them Amendment disagree. they which pay dollars checkoff cam- challenged promotional they the assert Rather, type of dispositively from the differ paigns to First susceptible is suggest, not cases speech that, our Beef role They point to the challenge. promo- designing the Operating Committee its Board and mandatory assessment use of a campaigns, to the tional advertising. each consider We producers to fund the on beef in turn.
A copy him- ad not write Agriculture Secretary does The campaigns are promotional Beef Board’s Rather, the self. only half Committee, Operating by designed the Board’s Beef by appointed members Board Beef are members of whose Operating (All Committee Secretary. the members the § Secretary. 1260.213 by CFR the subject to removal are content (2004).) whose Respondents сontend entity nongovernmental by effectively controlled is —the “government be considered Operating Committee—cannot we contention, because this not address speech.” We need cam- promotional message premise: reject The its Federal Government effectively controlled paigns is itself.4 begin promotions is in the out set
The Gov- Federal message established ning to end “govern Committee Operating not label We therefore need are assessments to which entity “nongovernmental.” mental” or by appointed Board, whose members all of Beef is the remitted only relevant Committee’s Operating to law. Secretary pursuant which campaigns, promotional ancillary designs involvement —it actor thus as a status state its approves Secretary supervises —and issue. directly at *10 Congress implementation
eminent.5 has directed the of a program” promotion, “including paid “coordinated of adver tising, image desirability to advance the of beef and beef 2902(13). §§ products.” 2901(b), Congress 7 U. S. C. Secretary specified, general have also in terms, what the promotional 2904(4)(B)(i) § campaigns g., shall contain, see, e. (campaigns types “shall . . . take into acсount” different products), they beef g., and what not, see, shall e. 7 CFR 1260.169(d)(2004) § (campaigns prior ap shall not, without proval, product”). refer “to a or brand trade name of Congress Secretary Thus, and the have set out the overarch ing message they and some of its elements, and have left development remaining entity details to an whose (and members Secretary are answerable to the in some cases well). appointed by him as Secretary
Moreover, the record demonstrates that the ex- approval authority every ercises final over word used in every promotional campaign. proposed promotional All messages by Department are reviewed officialsboth for sub- wording, stance proposals rejected and for and some are or Department. App. rewritten 114, 118-121, 274-275. Secretary’s approval rejec- Nor is the role limited to final Department tion: Officials of participate also attend and open meetings proposals in the developed. at which are Id., at 111-112. degree governmental
This message control over the distinguishes funded the checkoff these cases from Keller. so, The princiрal suggests dissent that if this is then the Government adopted has at best a mixed because it message, promulgates dietary also that, guidelines followed, if would discourage consumption excessive Post, Souter, J.); beef. at n. 5 (opinion of see post, also at 569-570 (Ginsburg, J., in concurring judgment). agreed Even if we pro tection of the government-speech doctrine must be forfeited whenever inconsistency there is message, we would nonetheless accord the protection promotions here. The beef perfectly compatible with the guidelines’ consumption moderate ads do not insist —the Breakfast, Lunch, beef is also What’s for Midnight Snack. There the state bar’s communicative activities to which the plaintiffs objected prescribed by gen- were not law their developed eral outline and not under official supervision. many lobbying Indeed, of them consisted of legislature the state on various issues. S., See 496 U. *11 and n. 2. When, here, as sets the overall approves every to be communicated and word that precluded is relying it disseminated, is not from on the government-speech merely doctrine it because solicits assist- nongovernmental ance developing specific sources in messages.
B Respondents program also contend that the beef does not qualify “government speech” because it is funded a targeted producers, by gen- assessment on beef rather than funding eral they argue, revenues. This mechanism, has gives two program relevant effects: It control over the beef politically legislators, not to accountable but to a narrow in- group pay respondents’ terest dissenting will no heed to perception views, and it creates the that the advertisements speak producers respondents. for beef such as reject point. compelled-sw&si<%
We the first analysis altogether is promo- unaffected whether the funds for by general through tions are raised taxes or as- may challenge compelled support pri- sessment. Citizens speech, vate right but have no First Amendment not to fund government speech. And that is no less true when the fund- ing through targeted is achieved assessments exclu- devoted sively program object. to the to which the assessed citizens (1982)(“There Cf. Lee, United States v. 252, U. S. principled way distinguish general no ... between taxes imposed Security and those under the Social inAct” evaluat- ing right religion). the burden on the to free exercise of right pay First Amendment does not confer a one’s taxes
56B injury compelled general fund- fund, because the into the (as injury compelled speech) ing opposed does not accounting. Bowen stem from the mode of Cf. Government’s (1986)(“The Roy, 693, 700 Free Exercise Clause v. 476 U. S. right dictate the con- does not afford an individual a . . . procedures”); id., at 716- duct of the internal Government’s part concurring concurring in J., (Stevens, result). compelled funding gov- justified
Some of our cases have speech by pointing out that ernment subject accountability. g., Abood, 431 See, e. democratic (Powell, concurring judgment); J., at S., 259, U. n. 13 to “tradi- Southworth, 529 at 235. But our references S.,U. signify political id., do not controls,” tional duplicates Appropriations Clause, § every gov- or that instance of Const., I, 9, U. S. Art. cl. appro- by line item in an ernment must be funded *12 subject priations are Here, bill. the beef advertisements adequate apart political safeguards than to set them more messages. program private authorized and the from The specific message prescribed re- statute, federal basic imposed by promotions’ quirements contеnt are fed- for the regulations promulgated comment. after notice and eral politically Secretary Agriculture, accountable offi- a of key appoints program, dismisses the the cial, oversees power adver- personnel, over the and retains absolute veto wording.6 right And to the Con- content, tisements’ down oversight authority, mention gress, not to course, retains perma before among producers a referendum Congress required also checkoff, call an Secretary the the and allowed nently implementing comprising 10 “representative group” of a upon other referendum demand 2906(a) (b). they §§ Even before 7 U. S. C. producers. of cattle percent — compelled speech, checkoff as challenge the complaint amended their such a referendum. litigation in this to force respondents seeking were 2002). (SD Supp. See 207 F. 2d more program time. No ability to reform required.7 proceeds argument respondents’ point, the second As to advertising crediting They contend as follows: only impermissibly uses Beef Producers” “America’s promote seeming money endorsement their but also their they agree. Communications dо not with which they they argue, speech,” are at- “government if be cannot per- government; than the to someone other tributed by compulsory they is, he attributed, when whom son to unwilling communication, funding, instrument made the objection. may raise a First validity argument— of this We need not determine compelled compelled than rather which relates to in all com Amendment affront” finds some “First principal dissent when, as says, it “a pelled fiinding government —and galling,... greater more the First Amendment affront sessment ... makes respond process practically can required political care is to ensure that the consists, Post, That care greater at 576. compulsion.” to limit the by a tar speech funded says, requirement dissent Post, at 576- identify speaker. as the geted assessment must authority and no prior practice, precedent, no no 578. The dissent cites has ever before anyone even who highly refined elaboration—not this “Congress found within of it. It is more than we think can be thought course, noth speech.” Of abridging make no law ... the freedom of shall identify prevents Order the Government ing the Beef Act Beef requires less concealment ing sponsor itself as of the ads—much correct, theory not sustain if it were this would provenance ads’ even—so below, Act and the Order. altogether enjoined judgment which *13 realizes the But not on whether the ads’ audience the correct focus is in purported assessment’s speaking, compelled Government is but on the today, hold rights. As we respondents’ terference with First speech respondents enjoy right no not to fund —whether assessments, or not the rea and whether broad-based taxes If a identify government’s. as the speech sonable viewer would however, analysis identify respondents’, viewer would as 565-567, and n. 8. page would be different. See this and infra subsidy8 regard respondents’ challenge. facial —with requires neither the Act Since Beef nor the Beef Order attri-' any possible neither can the cause of bution, be Amend- enjoining ment harm. The District order the en- Court’s forcement of the Act and the Order thus cannot be sustained theory. on this theory might (again, facts,
On some set of this second we express point) as-applied no view on the form the basis for an challenge established, is, it were that individual beef —if respondents. advertisements were The rec- attributed only stipulated sampling ord, however, includes of these promotiоnal App. see of the exem- materials, 47, and none plars provides any support theory except for this attribution tagline identifying funding. appar- Respondents for the ently presented no other evidence trial, of attribution at findings point. the District Court made no factual on the testimony only subject Indeed, in the trial on the party employee respondent identified, has an of one of the promotions associations said he did not think the beef would 8The principal concepts something dissent conflates the two into it de “presumptive autonomy speakers scribes as citizens’ to decide what to Post, say pay say.” and what to for others to at 576. discuss in As we text, might objection pay there be a valid if “those out to singled 575-576) closely expression” (post, way tax are linked with the at in a them But this appear government message. makes endorse (like compelled-speech Wooley opinions argument Barnette draws) substantively analysis. which it from the compelled-subsidy differs being pay The latter invalidates an exaction not because forced to personal autonomy, being that is unattributed violates but because private speeсh any legitimate unconnected to forced to fund someone else’s (dis government purpose personal autonomy. Supra, violates at 557-558 Abood). violation not occur when the cussing Keller and Such a does speech. Apportioning funding exaction funds the burden other levies (including speech) through taxes and government operations “sin autonomy simply taxpayers because individual feel does not violate 575-576, n. 4. “galling,” post, out” or find the exaction gled *14 re- the individual group.9 Whether his attributed be be associated producers would spondents are beef who Beef Producers” coming “America’s speech labeled as altogether silent. is record trial question which the is a tagline a trademarked funding itself, only the have We specific sufficiently to con- standing alone, is that, term10 pro- any particular beef that factfinder a reasonable vince con- with the tarred producers, would be or all beef ducer, that conclude therefore We ad.11 trademarked tent of each Councils of Resource Organization Western respondent employee An (WORC) as follows: testified din- ‘Beef, it’s what’s says, an ad would see “Q When someone says аt that ad and anyone looks ner,’ you do believe from WORC? coming so. “A I don’t think any of these actually believe you have basis “Q . .'. [D]o are attributed Board Beef by the Cattlemen’s promoted
messages organization? an WORC as 2002). (Jan. 14, 46-47 No, I think so.” Tr. “A 10 don’t . trade apparently been Producers” has “America’s Beef phrase 1999, http://tarr.uspto.gov/servlet/tarr? see Board since marked (as 20,2005, and available May visited regser=registration&entry=2352917 attrib materials are file), promotional some case
in Clerk of Court’s materials promotional Other Beef ProducersSM.” uted to “America’s (such identifying a notice as record, however, attributions bear other holder, apparently untrademarked copyright as the the Beef Board Check through Beef Producers by America’s Veal phrase “Funded off”). App. 52. to refer thought plausibly more might be Beef Producers” “America’s organization an and such producers, of beef organization a particular message were if the ads’ objection First Amendment have a might valid Gay, Lesbian Hurley Irish-American v. to it. Cf. incorrectly attributed (1995). But Inc., Boston, S. 572-573 515 U. Group and Bisexual would be mistaken claims that it respondent groups neither of the individual supra, none Producers,” n. “America’s see Beef membership organi his an because of injured be respondents claims Beef Producers” Rather, that “America’s respondents zation. claim Thullner, from Robert coming identify enough to precise who American Smith, Mertz, respondents the other John Ernie producers. as-applied
on the record before us an First Amendment chal- *15 lenge no basis on to the individual advertisements affords Eighth judgment, part. which to sustain the even Circuit’s
[*] [*] [*] Respondents’ complaint a number of other asserted grounds declaring Order, the Beef the Beef or both Act, entirety. having invalid in their The en- Court, District joined the Act and the on the basis of the First Order grounds. Amendment, had no occasion to address these other Respondents may proceed now on these other claims. judgment Appeals the vacated, Court proceedings cases are remanded for further consistent with opinion. this
It is so ordered. Justice Thomas, concurring. join opinion.
I I continue to believe that Court’s advertising “[a]ny regulation compels funding of subjected stringent must to the First Amendment be most scrutiny.” Inc., Foods, 533 U. S. United States v. United (2001) concurring); 419 see also Glickman 405, (Thomas, J., Elliott, Inc., 457, 521 U. S. 504- v. Wileman Brothers & (1997) dissenting). time, At the same J., (Thomas, qualified recognize principle wherе I that this must be govern funding speech regulation compels that is taxpayers have a First that all ment’s It cannot be own. government objection taxpayer-funded “germane” to some is not speech, even if the funded program. Like regulatory ante, at 557-559. See broader “pure” analytical between Court, I see no distinction general government speech revenues and tax funded 562-564; the exactions, ante, at funded from opera government practice using targeted taxes to fund founding, see The from the taxes, as excise dates tions, such 1961). (J. p. 12, Federalist 75 Cooke ed. No. generic pro- their if the advertisements associated
Still, organization re message the individual or with either as-applied spondents, respondents would have a valid then may challenge. not, First Amendment associate individuals Amendment, with the First consistent involuntarily speech by attributing organizations an message or not those individuals them, unwanted whether speech, under and whether or not the fund only government’s principle This follows not control. may establishing from our cases that the they compel convey messages with which dis individuals agree, g., Virginia Barnette, see, e. Bd. Ed. v. West (1943);Wooley Maynard, U. S. 633-634 v. U. S. *16 (1977), expressive-association 713-717 but also from our coercively prohibit associ cases, which from ating groups messages, see, individuals or with unwanted (2000) g., Boy Dale, 640, 653 e. Scouts America v. 530 U. S. (government organization [an] cannot “force to send a mes sage” disagrees); Hurley with which it v. Irish-American Gay, Group Boston, Inc., Lesbian and Bisexual (1995). Virginia compelled If had 557, U. S. West 576-577 reciting Mr. Barnette to take out an advertisement Pledge Allegiance purporting Message “A to be example, Children,” the Barnette that would have been (if it), compelled speech just less intrusive form of like mandatory flag present salute invalidated in Barnette. The record, however, does not show that the advertisements objectively message associate their individual respondent. Ante, 564-567, at The and n. 11.* funding nature of the is also too attenuated a link. Barnette; these are Moreover, not cases like the Govern- respondents government- ment has not forced to bear a imposed message. post, ante, at 8; 579, Cf. n. at n. dissenting). payment gov- J., to the taxes (Souter, *I may note that on remand their com respondents be able to amend plaint to assert an attribution claim. See Fed. Rule Civ. Proe. 15.
ernmеnt purposes of supporting government speech is nearly not as being intrusive as forced to “utter what is not [one’s] mind,” supra, Barnette, carry an un- wanted property. one’s With these join observations, I opinion. the Court’s Justice Breyer, concurring.
The beef program checkoff in these virtually cases iden- tical to the mushroom program checkoff in United States v. United Foods, Inc., (2001), 533 U. S. which the Court struck down on First grounds. “govern- speech” ment theory adopts today Court was not before us in United Foods, and we declined to consider it when it was raised at the eleventh hour. See id., at 416-417. I dissented in United Foods, my based on view that the chal- lenged assessments involved a form of regulation, economic speech. See id., at 428. And I explained that, were I classify program involving speech,” “commercial I still would uphold vote to it. See id., at 429.
I remain of the view that the assessments in these cases are best described as a form of regulation. economic How- ever, recognize I majority that a of the Court does not share that view. Now that we have had opportunity an to con- sider “government speech” theory, accept I it as a solu- tion problem to the presented by these cases. With the *17 caveat that I continue my believe that dissent in United Foods preferable offers a approach, join I the Court’s opinion.
Justice Ginsburg, in the concurring judgment.
I resist ranking promotional messages under funded the Beef Promotion and Research Act of 1985, 7 U. S. C. § seq., 2901 et but not attributed to the gov Government, as speech, given ernment conveys Government in its own g., name. See, Dept. e. S.U. of Health and Human Services and Dept. U. Agriculture, S. Dietary Guidelines 570 http://www. available 69, 30, pp. Americans
for (as visited health.gov/dietaryguidelines/dga2005/document/ (not- file) case of Court’s in Clerk available May and 18,2005, present in foods “[tjrans fatty . . . acids ing that sheep)” and (e. g., and cattle animals ruminant come “[ljimit oils and fats intake recommending Americans acids”); 7 578, n. post, at fatty trans and/or high in saturated however, that persuaded, dissenting). I remain J., (Souter, v. United in United States as cases, these in the assessments (2001), v. Wileman and Glickman Inc., 533 S. Foods, U. (1997), per- qualify as U. S. Inc., 521 Elliott, Brothers & S., Foods, U. regulation. United See economic missible I concur reason, dissenting). For that J., at 425 (Breyer, judgment. Kennedy, dissenting. Justice demon- dissenting opinion, which join Souter’s
I Justice here speech at issue why analysis persuasive with strates speech at all. meaningfully be considered cannot Amend- day the difficult another for I would reserve government were if the arise questions that would ment pay even group citizens target a discrete speaks,” as it publicly as “embrace government does post, at 580. Jus- and Stevens Justice whom with Souter,
Justice Kennedy dissenting. join, tice 1985,known of Act Research Promotion
The Beef
United
into the
imported
sold
cattle
Act, taxes
the Beef
2904(8).
§
Much of
U. S. C.
head.
dollar
at one
States
adver-
beef, as in
people
eat
urging
spent
the revenue
for Dinner.”
slogan,
It’s What’s
“Beef.
with the
tisements
Mon-
Dakota
taxpayers, “South
Respondent
App. 50.
inter-
representing their
organizations
ranchers
tana
they
because
object
the tax
Respondents 1,
ests,” Brief
they see as
content, which
disagree
advertisements’
*18
generic
good.”
that “beef is
message,
This
the
say, ignores
ranchers
the fact that not all beef is the same;
the ads fail
distinguish,
example,
the American
grain-fed
ranchers’
grass-fed
beef from the
predominant
beef
imports,
in the
which the Americans consider inferior.
complaint
ranchers’
is
all
objection
fours with the
growers
the mushroom
in United States v. United Foods,
(2001),
Inc.,
The Court unwisely. defense The error is not government speech justify can never compelling a sub- sidy, but that a compelled subsidy justifiable should not be by speech government unless the put must for- ward as its own. Otherwise there is no check whatever on government’s power compеl special speech subsidies, the rule of United Foods is a dead letter. I take view government that if relies on government-speech doctrine specific compel groups to fund taxes, it must make itself politically by indicating accountable actually content is a message, just statement of one group self-interested *19 572 inas Sometimes, power. willing with invest
currently to disclo- an effective make can government very cases, these Be- its own. speech as labeling the explicitly only by sure show to require the Government to Act fails Beef the cause Ap- of Court the of judgment the affirm I would hand, its respectfully dis- I and unconstitutional, holding Act peals compelled this condone decision Court’s sent from subsidy.1
[*] [*] [*] furnish compel a man “to that wrote Jefferson In 1779 which opinions of propagation money for the of contributions Estab- Bill for A tyrannical.” is sinful ... he disbelieves Constitution, Founder’s 5 Freedom, in Religious lishing 1987), codified (R eds. Lerner & R. p. 77 Kurland No. 2003). Although (Lexis he was §57-1 Ann. Code Va. 1786at produce, advertising of farm compelled thinking about Foods, ago in United years four view echoed Jefferson’s we serious values Amendment “First that said we where a citizen, or particular compel a can risk if subsidies pay special citizens, group of discrete United 411. S., at U. . .” . . favors it that side virtually exaction of enforced a scheme addressed Foods product involved except that here, the one identical statute a here, federal as There, not beef. mushrooms, was pay a tax (mushroom growers) to group forced generic produce at a members’ its promoting ads that funded mush- heldWe them. objectionable to some level right growers’ violated statute room its object to they when expression pay for to refuse content.2 as a question presented also certiorari petition The Government’s denied Court available, but be might relief limited more
to whether
us.
not before
it is
hence
question
on that
certiorari
with
disagreement
growers’
the mushroom
while
also noted
We
prin
apparent
no
.,
there
..
minor
be seen
“could
the ads’
whether
about
debates
minor
of hand
out
distinguishes
ciple which
says,
As the Court
ante, at 557-559, United Foods was a
descendent of
precedent.
two lines of
exemplified
first,
Virginia
West
Bd.
(1943),
Ed. Barnette,
v.
Although we pertinence declined to address the of a government-speech justification Foods, United it is crucial to the defense of the statute here because, as the District (and Court Appeals and the Court of observed as the Court appears agree), factually these cases on all fours with branded mushroom is better than just Foods, mushroom.” United S., 533 U. at 411. The Amendment, words, other is not limited to “serious” or “substantial” disputes about were, content. Even if it the growers mushroom could have argued, as the here, ranchers argue could they because prefer would say nothing to convey than the ads, in the the ads violate their First right not to speak at g., Row, e. Harper See, all. Publishers, & Inc. v. Nation Enterprises, 471 (1985) (“There 539, U. S. 559 is necessarily, and suitably within defined areas, a [First Amendment] not freedom speak publicly, one which serves the same ultimate end as speech freedom of in its affirmative as- (internal pect” omitted)). quotation marks (“[W]e 2003) (CA8 F. 3d See Foods. United is, in ‘[t]he checkoff beef court agree district checkoff’” mushroom respects, identical material all Supp. F. (quoting 207 Foods challenged in United program then, Unless, 2002))), (SD ante, at 558. quoted 2d way in such speech is defined doctrine sub- enforced here, the compulsion justify the as to subsidy. mushroom along with must fail sidy ads for beef unlike I, fail, should subvention the beef my judgment In treat- qualify for ads that the believe do not Court, by the Government. as ment relatively new, doctrine government-speech in which cases few fact, the imprecise. In correspondingly part not most have doctrine have addressed we govern “[t]he observations beyond broad such gonе much programs and may support valid general rule, as a ment, protesting binding on exactions or other taxes policies inevitable it seems principle this broader parties. Within spent for be will raised funds poli own its defend advocate expression to other *21 South System v. Wis. Regents Univ. Board cies.” of of of (2000). this somewhat Even U. S. worth, 529 the points about two however, development, early stage of n clear. doctrine recognize the certainty need to is the point of first The objec- despite speak power to government’s legitimacy of neces- exactions or other taxes by whose dissenters tions the offensive putting to sarily go measure in some say to has government govern, To heard. be forward to of veto heckler’s a First something, and in the voice government’s raising the to forced.contribution question. See the out of be would “marketplace of ideas”3 J., (1919) (Holmes, 616, 630 States, S. 250 U. Abrams United v. See better (“[T]he desired good ultimate Brandeis, J., dissenting) joined of power is the truth of best test th[e]... by free trade reached ideas — ”). . market.. the of competition in the accepted itself get thought the (“If supra,
Keller, every at 12-13 citizen right were to have pаid by public insist no one express funds a view with disagreed, which he great debate over issues of concern to public the would be limited private to those in the sector, process government as we radically know it transformed”). point second fixed government-speech doctrine is
that the First Amendment avoiding interest in forced subsi- dies is though necessarily served, politi- satisfied, process cal government a check on what say. chooses government “When the speaks, for promote instance to its policies own or particular to advance a idea, it inis, end, accountable to the political process electorate and the advocacy.” its supra, Southworth, at 235; see Abood, also supra, (Powell, at 259, n. 13 concurring judgment) J., (“[T]he permitting government reason for compel payment spend money taxes and to proj- controversial government ects is that the representative people”). Democracy, in other words, ensures that is not speech untouchable when against its rubs Amend- ment interests of object those who supporting enough it; if disagree voters government says, with what the next elec- tion message. will cancel the adequacy process of the democratic to render sub government speech
sidization of naturally, is, tolerable tied to the subsidy. character of For when funds general its usually tax revenue, as it does, no taxpayer group taxpayers lay individual or can to a claim special, particularly strong, even connection to the (and money funded). spent hence to the See Massa (1923). Mellon, chusetts v. Outrage U. S. 486-487 *22 likely is disagreement to be stay temper rare, and tends to ate. palatability But the relative subsidy of a remote shared by every taxpayer is not to be speech found when is targeted funded with particu then, taxes. For here, singled lar pay interests of closely those out to the tax are 576 with disagree who and taxpayers
linked with expression, auton on their presumptive limitation a more acute it suffer for to what pay and to say what to decide as speakers omy Gay, Lesbian Hurley v. Irish-American See to say. others (1995) Inc., Group Boston, 557, 573 U. S. and Bisexual under rule (“[T]he protection fundamental to choose autonomy has the a that speaker [is] own message”).4 of his the content First Amend- makes thus assessment a targeted When that should, follow does, or it more galling, ment affront process that the political to ensure is care required greater in- Jefferson the compulsion to limit respond can practically to unrealistic be it simply would Whereas against. veighed could revenue from subsidy general think every speech that effective to amenability politi- its for scrutinized be or should taxpay a between is no difference in fact there The Court asserts that revenues, prece our which general with funded speech to challenge er’s taxes. targeted with funded challenge to foreclose, a and dents in United our statement position, authority for that Court’s lone But the “[tjhere ... to way principled no (1982), is Lee, that 455 U. S. States v. Social under the imposed those taxes and general between distinguish 562, unavailing. Lee involved ante, at id., Act,” quoted at Security state taxes, Court’s Security Social to objection paying religious if the Government recognition in the case was grounded ment in that to nothing would be there objection, to accommodate required were paying “general to objection religious raising a similar stop others the commonsense because of danger comparable no there is taxes.” Here they connection feel a closer notion individuals paid expression they do taxes than targeted out to fund with singled v. in Massachusetts recognized this We general revenues. taxpayer’s the individual (1923), noted that Mellon, where we U. S. 447 from taxation Treasury partly realized in the moneys “interest — [and] others with millions from other sources —is shared and partly Id., This common 487. indeterminable.” minute and comparatively con in this distinguish way” notion, then, provides “principled sense in Lee seemed The Court taxes. general text between way, as the unre- limited this might reasoning its be recognize that “[tjhere how way, principled is no of its reads: dacted statement version taxes general between case, distinguish ever, of this purposes S., at 260. 455 U. Security Act.” Social under the imposed those *23 response, targeted speech
cal the less-common subsidies can specifically susceptibility be reviewed response for their by intensity provocation experi- voters, and the by targeted group justifies just enced scrutiny. such requirement public In these cases, the of effective account- ability ought prevail, being means the ranchers it clear that the advertising Beef Act does not establish an scheme subject to effective democratic checks. The reason for this simple: required is any sign the ads are being not to' show speech by experience the Government, and under the Act effectively demonstrates how the Government has masked producing its obviously,many role the ads.5 Most of them tagline, “[f]unded by include the America’s Producers,” Beef App. reading 50-51, which all but ensures that no one them suspect message will that the comes from the National Gov- tagline just point ernment.6 But the underscores the that naturally would be it, true without that readers would most urging think people that ads to have beef for dinner were placed paid by producers profit the beef who stand to when hearing beef is on the table. oneNo a commercial for Pepsi talking or Levi’s thinks Uncle Sam is the man behind Why person reading the curtain. would a a beef ad think 5The Court thinks it enough that the Government is required not Ante, way. mislead in this at n. 7. This view that the statute is saved might applied because it be misleading apparently without readers reflects the position Court’s these challenge. eases involve a facial Ante, challenge 564-565. But the here is to the appliсation of the stat actual, ads, through ute misleading replete as shown a record examples. this, Cattlemen, Disputing petitioners Inc., al., suggest Nebraska et danger confusion is eliminated the inclusion in the beef ads it, of a red checkmark with the word atop “beef” because this “distinctive checkoff logo sign is a direct that the ads are pursuant disseminated to the 03-1165, federal checkoff program.” Reply Brief for Petitioners in No. (or some) pp. quite 15-16. It seems to me implausible most even Americans associate a red checkmark underneath the word “beef” with Indeed, the Federal gener Government. it strikes me that someone even ally familiar might recog with the Beef Act and its taxation mandate nize the checkoff logo signifying Government involvement. steak?7 Given trying eat more to make him was Uncle Sam why anyone would sus- it hard to see circumstances, unless pect was behind the Government *24 message and said so. came out Congress author- that because the view
The takes Court (or at least controls and the Government this scheme ized on) for demo- the need ads, the beef the content of a veto has ante, at 563- accountability satisfied. See has been cratic nothing means It has it backwards. the 564. But Court message fact is if that officials control that Government get the required apparent those who to be made never affirmatively them. message, concealed from if it is let alone accountability in- political with control is of the officials just al- those officials are because sufficient, words, in other (and deliberately using in fact are to use their control lowed it) power to voters with the their role from the to conceal putative government hold them accountable.8 Unless also unlikely connection would Moreover, such an anyone who did draw mind making time his having Sam was a hard have to believe that Uncle different view of take a other, governmental messages for up, expressly Dietary Americans Guidelines eating. should be how much beef of of and Departments Agriculture of the publication Americans “Fats.” Services, chapter beef in a entitled Health and Human discusses (as visited Http://www.health.gov/dietaryguidelines/dga2005/document file). 16, 2005, May and available in Clerk of Court’s ease consumption to reduce their chapter is that most Americans need from other than fats, they most of thе fats do eat sources get and should id., beef, fish, nuts, at 29-31. That namely, vegetable oils. See of Health and Human Agriculture report, which Secretaries dietary health informa source of say primary Services “is intended to be (as ads tion,” id., i, of beef the beef encourage consumption at does not do) fruits, chapter, a different which discusses is clear from the fact that is entitled “Food dairy products, and fat-free vegetables, grains, whole id., at 23. Groups Encourage,” whether, how, the bene addresses or even Notably, the Court nowhere spon by concealing its allowing government taxpayers fits of to mislead on First Amend imposition the additional sorship expression outweigh Indeed, no benefits ment from it. the Court describes rights results doctrine think First Amendment approach gives from its no reason to speech appears coming government, gov- to be from the its justify origin possibly ernmental cannot the burden on the pay Amendment interests of dissenters for it.9 taxpayers is it answer that resourceful could dis-
Nor by doing cover the behind the beef ads research Government implementation Beef course a tax- on Act. Of payer by looking enough, could discover the faсts hard but tip taxpayer what off the even if a few would look? And taxpayers it matter, did unearth the truth would not for the mitigated by possibil- First Amendment harm cannot be ity cognoscenti may actually that a few understand how the judiciary justified keeping scheme works. If the hands special off assessments dissenters speech, practical opportunity polit- it is because there is a *25 response; knowledge part ical esoteric on the of a few will not do. merely subterfuge.
should accommodate the Government’s
The Court
precedent requires
observes that no
the Government
to show its hand
by claiming government
when it seeks to defend a
assessment
targeted
Ante,
since the
speech.
expected,
at
n. 7. That is of course to be
never
government-speech doctrine is so new that
the Government has
enjoyed
opportunity
attempting
before
to invoke it in this Court when
in United Foods.
justify
subsidy
of
type
compelled
struck down
in
says
Since
need never show its hand
the Court now
the Government
ante,
564-565,
an
one,
at
there is no chance for
effective
cases like this
objectionable.
political
funding
speech,
check on forced
however
9
said,
labeling speech as
explicitly
That
I
not mean to
that
suggest
do
convey
personally
that of
suffice when individuals must
government would
Barnette, 319
Bd.
Ed. v.
Virginia
as West
in
government’s message,
of
(1977).
in
Wooley Maynard,
(1943),
705
U. S. 624
v.
430 U. S.
than
autonomy
greater
in those situations
fringement
speaker’s
on the
it
be saved
today,
great
us
so
cannot
eases like the ones before
(the
they
simply
speakers)
to inform listeners that
allowing speakers
they disagree with the mes
or that
communicating government
Wooley, as it was
the same view in
sage.
apparently
The Court
took
Hampshire
unmoved
in that case that New
by the dissent’s observation
sticker
conspicuous bumper
“place
bumper
drivers were
on their
free
‘Live
the motto
they
profess
do not
in no uncertain terms
explaining
”
J.).
Rehnquist,
Id.,
(opinion
Free or Die.’
implemented by
be
Amendment cannot
the First
sum,
In
(or by
deception
mis-
sanctioning government
omission
statement)
today condones,
leading
the Court
of the sort
ostensibly governmental,
expression
which
that is not
publicly as it
required
to embrace
is not
sufficient
speaks, cannot constitute
subsidy
justify
to broadcast it.
of a
enforcement
correctly
Foods
Appeals
held that United
thus
Court
mandatory-assessment provisions
Beef Act’s
renders the
unconstitutional.10
to Central Hudson
by pointing
Act
Petitioners also defend the Beef
Y.,
(1980),
Comm’n N.
where we
types
on most other
applied
than that
to restrictions
level of review
in Glickman v. Wileman
speech.
strongly suggested
But the Court
Inc.,
Elliott,
and in United States
(1997),
v.
Brothers &
521 U. S.
Foods, Inc.,
Hudson scru
both that Central
(2001),
United