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

(100.) Id. (citing United Foods, 533 U.S. at 428).

(101.) Id.

(102.) Id. 569-70 (Ginsburg, J., concurring).

(103.) Id. at 569. Ginsburg was referring to the "Dietary Guidelines for Americans 2005," as published by the United States Department of Health and Human Services and United States Department of Agriculture, in which the government suggested that Americans limit the amount of food they eat which comes from ruminant animals such as cattle, because these foods contain saturated and trans fatty acids which are considered unhealthy. Id. (citing U.S. DEPT OF HEALTH AND HUMAN SERVICES, DIETARY GUIDELINES FOR AMERICANS 30, 69 (2005), http://www.health.gov/dietaryguidelines/dga2005/document/pdf/DGA2005.pdf).

(104.) Id. at 570 (Ginsburg, J., concurring). See United Foods, 533 U.S. at 425 (Breyer, J., dissenting).

(105.) Johanns, 544 U.S. at 571 (Souter, J., dissenting). Justice Kennedy also dissented from the majority holding. Id. at 570 (Kennedy, J. dissenting). He agreed with Justice Souters dissenting opinion, stating that Souters opinion "demonstrate[d] with persuasive analysis" how the speech could not logically be considered government speech in any way. Id. Justice Kennedy also said that he would leave for another day the issue of whether the speech would have been acceptable if the government had clearly put its name on the advertisements. Id. Justice Kennedy further indicated that he would also leave for another day the issue of whether requiring a small group of people to fund government speech through advertisements would violate the First Amendment if the government plainly identified itself in the advertisements. Id.

(106.) Id. at 571 (Souter, J., dissenting). Justice Souter further noted that the Court in United Foods left open the possibility that the government could use a government speech argument, even though the Court did not in that case. Id. Justice Souter, however, was not surprised to see the government use the argument the next time the issue came up in Johanns. Id.

(107.) Id. at 571-72.

(108.) Id. Souter then discussed the similarities between the mushroom checkoff and the beef checkoff, quoting United Foods by stating, "First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors...." Id. at 572. Souter argued that it does not matter whether the disagreement with the advertisements message is only minor because there is not a requirement that it be a substantial disagreement. Id. at 572 n.2 (citing United Foods, 533 U.S. 411). Furthermore, the ranchers could have argued under Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985), that they had a right not to speak which is just as paramount and guarded by the First Amendment as the affirmative aspect of the freedom to speak. Id. (citing Harper & Row, 471 U.S. at 559).

(109.) Id. at 573.