Johanns v. Livestock Marketing Association-government speech: it's what's for dinner!

Justice Stevens concurred and noted that in a situation where a person has already surrendered, either voluntarily or via permissible compulsion, to a "collective entity" there is not a significant constitutional issue so long as the compelled subsidization is "ancillary to the main purpose of the collective program." (216) On the other hand, when liberty has not been surrendered to a comprehensive regulatory scheme and all that is at issue is commercial advertising, then compelled subsidization raises a constitutional issue. (217) Stevens concluded:

   [I]t [is] clear that government compulsion to finance objectionable
   speech imposes a greater restraint on liberty than government
   regulation of money used to subsidize the speech of others. Even in
   the commercial speech context ... it [is] entirely proper for the
   Court to rely on the First Amendment when evaluating the
   significance of such compulsion. (218)

Justice Thomas concurred to reiterate his view that "'paying money for the purposes of advertising involves speech, and that 'compelling speech raises a First Amendment issue just as much as restricting speech.'" (219) He believed that all regulation that compelled funding of speech "must be subjected to the most stringent First Amendment scrutiny." (220)

Justice Breyer dissented and was joined by Justice Ginsburg and, in part, by Justice OConnor. (221) Breyer believed that the majority erred in its analysis of the case and applicable precedent. (222) He disagreed with the majority that United Foods was distinguishable from Glickman. (223) Breyer believed that this regulatory program was simply a type of economic regulation similar to Glickman. (224) He articulated that even if the speech in this case was classified as "commercial speech" and a "somewhat more stringent standard" was applied, the same result should be reached. (225)

It is recognizable from the compelled speech and compelled subsidy precedent that the courts have struggled with defining the boundaries of the First Amendment protections to these categories of speech and the various exceptions thereto. (226) Furthermore, the government checkoff cases in general, and Johanns in particular, demonstrate the complexity and evident disagreement over the government compelling a targeted group of people to subsidize its speech. (227) This complexity and disagreement leave many questions unanswered and ripe for conjecture. (228) Unfortunately, instead of clarifying the government speech doctrine and setting boundaries to its application, the Court, through its flawed analysis of precedent and weak reasoning, only compounded the problem and will have to revisit this issue in the future to provide more clarity. (229)

IV. ANALYSIS

In the early 1990s, the U.S. Supreme Court established the doctrine of government speech. (230) More recently, the Court has addressed three compelled subsidy or "checkoff" cases and reached differing and sometimes seemly inapposite results, at least in substantial part, because of the government speech doctrine. (231) The Court missed an opportunity in Johanns to designate outer parameters to the government speech doctrine. (232) Unfortunately, without more definitive parameters this doctrine may become a dangerously broad defense to the government compelling citizens to subsidize objectionable speech and expression without the slightest invocation of the standard First Amendment protections. (233)