The Beef Debate – Part 3 – Erik Responds

By Tom Goldstein
on May 26, 2005 at 9:39 pm

While Greg correctly describes the LMA decision, he does not quite defend it against the problems I identified. For example, his distinction of Barnette and Wooley fails to address my criticism that Justice Scalia improperly narrows the First Amendment interests at stake down to the personal autonomy concerns and ignores the structural purposes of the First Amendment. Those structural concerns played a major role in Barnette, as evidenced by the Court’s defense of its position on the grounds that “[a]uthority here is to be controlled by public opinion, not public opinion by authority.” Both Turner Broadcasting Sys., Inc. v. FCC and First Nat’l Bank of Boston v. Bellotti make similar points. (For the particulars of those cases, as well as others I refer to below, look to where I cite them in my amicus brief, available via the hyperlink at the end of my initial post.) That is not a personal autonomy concern, it is a concern over the manipulation of viewpoints and public opinion

Greg’s observation that no one is forced to speak out of their own mouth and all remain free to speak out to the contrary has never been a sufficient answer to First Amendment violations of this type, as evidenced by the United Foods decision, which effectively repudiated that distinction as it was made in the earlier Glickman case. Cases like Hurley, Boy Scouts of America, and Miami Herald likewise demonstrate that the opportunity for counter speech or disassociating speech does not justify or cure the offense of compelled support for speech. While Greg is correct in arguing that the personal autonomy concerns are more attenuated here than in Barnette or Wooley, that is not a sufficient answer to a First Amendment objection.

Greg’s discussion of the compelled subsidy cases goes more to the heart of the issue, though again he simply repeats the error of Justice Scalia in conflating the government’s power to act with its power to speak. Of course, speech is different, as is evidenced by the very existence of the First Amendment itself.

As for the supposedly “critical[]” distinction that previous cases involved compelled support for private entities, Greg offers no persuasive reason why such a distinction is indeed critical, or even relevant. The claim that the government could not speak if it could not require people to pay for its speech is true, but persists in attacking the straw-man that opponents of the government speech doctrine would do away with all government speech, which, of course, they would not. My amicus brief explains how the Abood/Keller analysis reconciles both government necessity and First Amendment concerns. And nobody suggests that the speech generated by the Beef Act is necessary to implement any other non-speech program, much less for the government to function.

As for the notion that this is censoring the government, the simple answer is that it is no more censorship than any of the compelled-support cases. The government might well be able to use voluntary contributions to fund speech that would not otherwise satisfy the Abood/Keller test, much like unions do. What it may not do is use the coercive force of taxation to advocate a particular viewpoint out of proportion to that viewpoint’s support among citizens and other private parties willing to devote their resources to such speech.

Gregg next argues that there is no evidence that the First Amendment was designed to limit the government’s own speech, but he has simply overlooked the evidence. Both Justice Black dissenting in Street and Justice Harlan concurring in Lathrop give examples of government speech that few credibly claim would not violate the First Amendment. And the underlying principle that government may not use its authority to manipulate public opinion is quite well accepted and (I think) not challenged by Greg.

The particular examples of acceptable speech Greg gives hardly make his case against application of the Abood/Keller test to government speech. “Buy War Bonds” is quite clearly germane to the government’s sale of war bonds, and if the government itself sold beef it would surely be free to advertise its wares. “Support Our Troops” is a closer call, and whether such speech is simply pure propaganda or is instead germane to raising the military and fielding them to various places where they are needed would be an interesting case under Abood. “Have a T-Bone Tonight,” however, does not have even a remotely colorable connection with a government program other than itself, as even Justice Scalia recognized. Slip. Op. at 7 n.3.

As for the funding mechanism – general taxes versus targeted taxes – I generally think that both constitute violations of the First Amendment when used for non-germane government speech. Targeted taxes certainly implicate the autonomy and discrimination concerns of the First Amendment more than do general taxes, but the structural concerns I describe are substantially the same under either scenario. Gregg’s reference to Justice Thomas’s claim regarding the use of excise taxes from time immemorial is, once again, besides the point in that it conflates the treatment of speech and conduct. And the equal protection analysis regarding limited excise taxes would be quite different when there were used for speech than when they were used for substantive government programs.

As for the supposed inapplicability of Jefferson’s discussion of forcing people to fund opinions which they disbelieve, it is true that the reference contemplated religious opinions, but the analogy is quite apt in the speech context. We have regularly read the speech clause to contain an inherent anti-establishment principle, as reflected in all of the cases regarding compelled speech and compelled support for speech. Insofar as people have the right not to speak and not to fund the speech of others with whom they disagree, that is no less than an anti-establishment principle. Accepting the compelled support cases as a given and as an accurate reflection of First Amendment concerns, I merely note that their logic and reasoning cannot be credibly distinguished in the government speech context.

As for Jefferson’s love of agriculture, I fail to see how that is relevant given that the government retains numerous non-speech means of supporting agriculture generally and the beef industry in particular yet has elected not to use them. It is the method – compelled support for speech – of the government’s aid that is unconstitutional, not the generic goal of helping the beef industry.

As for the forum cases, Greg again ducks the essential issues. Yes, valid public and non-public fora are those which allow the expression of multiple viewpoints. But what he ignores is what the cases say about fora where viewpoints are indeed controlled by the government – i.e., those that are viewpoint discriminatory. The short answer is that they are unconstitutional. The government likewise controls the message in such fora, and if it was particularly heavy-handed in its discrimination – requiring that all participants in a forum express a particularly favored viewpoint within rigid government guidelines, that would make the forum a constitutional abomination, not a permissible form of government speech. And if the government-as-speaker includes the government-as-editor, any instance where the government paid for a forum and exercised even limited editorial discretion would become government speech, with the government stepping into the role of parade organizer a la Hurley or newspaper editor a la Miami Herald. Goodbye NAACP v. Cornelius. The Beef Act is best understood as creating a viewpoint discriminatory non-public forum. Government “control” over the resulting speech is simply the enforcement of the viewpoint discrimination, not permissible government speech.

As for the notion that viewpoint discrimination does not apply in the government speech context, again that is begging the question. The Court certainly had not held that previously, as Justice Scalia concedes in saying that the Court had implied, though never held, that government speech was constitutionally permissible. Slip op. at 5. Insofar as Greg is referring to the Rust v. Sullivan case, that was not a case involving government speech, as Justice Scalia himself has written in the past, and even if it were, the limitation on what could be said in Rust is entirely consistent with, and may be required by, an application of the Abood line of cases.

Greg’s effort to create a broader principle permitting viewpoint discriminatory government speech in all circumstances is simply inconsistent with numerous other lines of cases. He simply relies on the straw-man that government could never take a position or speak its mind, all of which overstates the opposition position. While it is indeed the very business of government to take a position and implement one side or another of competing views, such taking of sides applies to government action, not to government speech. We elect representatives to do things, not to tell us how to think and try to manipulate public information and opinion into letting them do more. Justice Scalia’s democratic populism could just as easily be applied to laws restricting speech as to the government’s diversion of funds to support a particular view. Such laws are just as surely a reflection of the democratic will. Fortunately, our Constitution recognizes that there are some things even the majority may not properly do. Engaging in domestic propaganda to solidify the majority viewpoint is just one of those things.

As for Greg’s discussion of the surviving attribution/association claim, I will leave that to future litigation to see how it plays out. Suffice it to say that such a remaining claim once again focuses too narrowly on the autonomy/dignity components of the First Amendment and offers inadequate consideration to the structural concerns of the First Amendment involving government manipulation of the marketplace of ideas. Even if the government were a worthwhile participant in the marketplace of ideas, doing so while it pretends to be somebody else is particularly destructive to the structural checks inherent in the First Amendment. Better that the government spoke anonymously than that it be permitted to mislead the public regarding the provenance of the speech. That concern has nothing to do with attribution to third parties who might be offended.