Johanns v. Livestock Mktg. Ass'n - 544 U.S. 550, 125 S. Ct. 2055 (2005)

Rule:

The United States Supreme Court's compelled-subsidy cases have consistently respected the principle that compelled support of a private association is fundamentally different from compelled support of government. Compelled support of government -- even those programs of government one does not approve -- is of course perfectly constitutional, as every taxpayer must attest. And some government programs involve, or entirely consist of, advocating a position. The 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. The compelled funding of government speech does not alone raise First Amendment concerns.

Facts:

The Beef Promotion and Research Act of 1985 (Beef Act) established a federal policy of promoting and marketing beef and beef products. The Secretary of Agriculture has implemented the Beef Act through a Beef Promotion and Research Order (Order), which created a Cattlemen's Beef Promotion and Research Board (Beef Board) and an Operating Committee, and imposed an assessment, or "checkoff," on all sales and importation of cattle. The assessment funds, among other things, beef promotional campaigns approved by the Operating Committee and the Secretary. Respondents, associations whose members pay the checkoff and individuals whose cattle were subject to the checkoff, challenged the program on First Amendment grounds, relying on United States v. United Foods, Inc., 533 U.S. 405, 150 L. Ed. 2d 438, 121 S. Ct. 2334, in which the U.S. Supreme Court invalidated a mandatory checkoff that funded mushroom advertising. The District Court found that the Beef Act and Order unconstitutionally compel respondents to subsidize speech to which they object. Affirming, the Eighth Circuit held that compelled funding of speech may violate the First Amendment even when it was the government's speech.

Issue:

Did the checkoff in question fund the Government’s own speech, thereby exempting the same from First Amendment scrutiny?

Answer:

Yes.

Conclusion:

The Court held that the beef checkoff funded the Government's own speech, and as such, it was not susceptible to a First Amendment compelled-subsidy challenge. According to the Court, the message set out in the beef promotions pursuant to the Beef Promotion and Research Act of 1985, 7 U.S.C.S. § 2901 et seq., was from beginning to end a message established by the federal government. Contrary to the respondents’ assertions, the government was not precluded from relying on the government-speech doctrine merely because it solicited assistance from a nongovernmental source, such as the Cattlemen's Beef Promotion and Research Board, in developing specific messages. The Court averred that the compelled-subsidy analysis was altogether unaffected by whether the funds for the promotions were raised by general taxes or through a targeted assessment. The respondents could have challenged compelled support of private speech, but they had no First Amendment right not to fund government speech.