Compelled Speech: “Beef, it’s what’s for dinner.”

Having just linked this case in the recent Rumsfeld v. Forum for Academic and Institutional Rights, Inc. case, I find this summary inadequate in its explanation of the exception for compelled Government speech. Sorry.

Johanns v. Livestock Marketing Association

This case deals with an objection by some beef producers that advertisements, paid for by a "checkoff" (which requires that a $1 assessment on each beef product), produced by a governmental board, and attributed to "Beef Producers of America," violate their First Amendment protection against compelled speech. The producers believe that the ads promoting that "Beef. It's what's for dinner" do not allow the producers to promote their own type of beef.

The opinion of the Court describes an exception to the First Amendment via governmental speech. This case is evaluated in terms of a previous case which was almost identical to this one where mushroom farmers won a case against similar ads. The majority distinguishes the mushroom case from this case because of the statutorily required governmental oversight of the beef advertisements. The first part of the objection, that the views of a limited interest group are represented and attributed to all beef producers, is dismissed because of the required governmental oversight, and the argument that the beef producers have no right to pay their taxes into a general fund rather than to a specific purpose. The second part of the objection, that the tagline "paid for the beef producers of America" attributes views to beef producers that are not their own, is dismissed because the statute does not require that the advertisements be attributed to "beef producers" and because this would not sufficiently attribute these views to any given beef producer.

The dissent describes this relatively new governmental speech exception to the First Amendment as the propositions that (1) that the government must be able to speak without a First Amendment heckler's veto, and (2) that the First Amendment is served by a check on the government provided by the political process. The dissent argues that (2) is not fulfilled by this law, attributing to the majority the view that the absence of a deceptive requirement in the law is sufficient. The dissent then argues that the First Amendment is not protected by the possibility of discovery, but rather that the attribution to the governmental board must be apparent.

While it is factually true that the ads are "paid for by the beef producers of America," this tagline would make me think that they, rather than the Federal government, produced the ad. This tagline seems to be a half truth. Yes, the beef producers “paid for” the ads, but they did not produce them. It would then be better if the tagline were “paid for by the beef producers of America, and produced by the Beef Board…something, something.” The governmental speech exception is important and should be upheld, but I would be inclined to agree with the dissent that the attribution should be absolutely apparent, rather than merely available to count as an exception to the First Amendment’s protection from compelled speech.