Nahmod Law

The Government Speech Doctrine Comes of Age

The government speech doctrine came of age in a series of cases beginning with Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005), where Justice Souter forcefully set out his own views in dissent.

But before addressing Johanns, I think it is worth mentioning that shortly after University of Wisconsin v. Southworth, 529 U.S. 217 (2000), discussed in a prior post, the Court held in Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), that a federal statute violated the First Amendment because it prohibited recipients of Legal Services Corporation funds from providing legal representation for efforts to amend or challenge existing welfare laws, even if that legal representation was separately funded. Writing for the Court (including Justice Souter), Justice Kennedy explained and then distinguished Rust:

The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to government speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding. We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, or in instances, like Rust, in which the government “used private speakers to… transmit information pertaining to its own program.”

531 U.S. at 541 (citations omitted). However, according to the Court , not every government subsidy creates a government speech scenario. Where, as in Legal Services Corporation, government subsidized individuals and groups for the purpose of soliciting a diversity of views, then forum analysis is appropriate just as it was in Rosenberger. In these situations, when there is no “programmatic message,” the government may not discriminate on the basis of viewpoint. In the course of its opinion, the Court also emphasized the distorting effects of the funding condition on the adversary system and the legal process. For these reasons, the statute violated the First Amendment.

Johanns v. Livestock Marketing Association

Johanns v. Livestock Marketing Association, handed down in 2005, generated important doctrinal developments in government speech doctrine. Here, the Court, in an opinion by Justice Scalia, ruled that mandatory assessments on beef producers that were used to disseminate the advertisement, “Beef, it’s what’s for dinner,” did not violate the First Amendment because the advertisement constituted government speech. Johanns was very similar factually to an earlier case, United States v. United Foods, 533 U.S. 405 (2001), which had held that a government assessment on mushroom growers for generic advertisements was compelled speech forbidden by the First Amendment. But, unlike in United Foods, in Johanns the government argued that the advertisements were government speech since the Secretary of Agriculture exercised final control over the message.

Johanns presented the Court with its first real opportunity to consider the free speech implications of the government speech doctrine when it involved compelled speech. The Court held that the federal statute authorizing the speech, accompanied by government control of the message, rendered the advertisement government speech. As a result, the compelled nature of the speech did not make a significant difference in the analysis because government has the right to tax and spend. Furthermore, it did not matter for First Amendment purposes whether the speech was facilitated through a general tax or through a targeted assessment.

Justice Souter’s Dissent

Justice Souter dissented on the ground that this was not an instance of government speech at all. In his view, “the Court has it backwards.” 544 U.S. at 578. The First Amendment focus should be neither on whether government stated that the speech was government speech, nor on government control of the speech. Rather, it should be on whether a reasonable observer viewed it as government speech. In Johanns, there was no way for a reasonable observer to know that it was the government speaking.

To the contrary: two factors indicated to Justice Souter that it was not the government speaking when the advertisement was distributed. First, the advertisements included the tagline, “funded by America’s Beef Producers.” A reasonable observer who read this tagline would conclude that a group of private parties was behind the advertisement. Second, the government’s Dietary Guidelines for 2005 (which surely constituted government speech) carried the message that Americans should eat less beef. Here the government would be advancing seemingly contradictory messages if the advertisement constituted government speech. (Justice Scalia responded to Justice Souter’s latter argument by maintaining that the messages were not in fact contradictory: government could promote beef for dinner while at the same time encouraging Americans to limit their overall beef consumption. “The beef promotions are perfectly compatible with the guidelines’ message of moderate consumption–the ads do not insist that beef is also What’s for Breakfast, Lunch, and Midnight Snack.” 544 U.S. at 561 n. 5.)

Next, Justice Souter referred to “the requirement of effective public accountability” and emphasized the importance of government’s clearly holding itself out as the speaker. The primary justification for exempting government speech from First Amendment scrutiny is that the political process keeps the speech in check. “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.”

A Marketplace of Ideas Rationale for Government Speech

Justice Souter then went on to offer a philosophical grounding of his own for the government speech doctrine. Citing the dissenting opinion of Justice Holmes, joined by Justice Brandeis, in Abrams v. United States, 250 U.S. 616, 630 (1919), he suggested that it was the “marketplace of ideas” rationale that made the government speech doctrine necessary. Under this rationale, government has an important role as a participant in the marketplace of ideas in which there is a “free trade in ideas.” Government would not be able to participate in that marketplace if citizens could use the First Amendment as a “heckler’s veto.” For these reasons, it was essential, according to Justice Souter, that the Court ensure that it was in fact government speaking.

Next

The next two posts on government speech conclude this series.