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

Justice Stevens also concurred in the judgment, joined by Justice Brennan. Id. at 579 (Stevens, J., concurring). Stevens felt the Court did not adequately define commercial speech and was concerned that speech which called for greater constitutional protection would not adequately be protected if commercial speech was defined too broadly. Id. He concurred in the result only because he did not consider it "commercial speech" so he found no need to determine whether the Courts four-part test was adequate to protect commercial speech. Id. at 583.

Justice Rehnquist disagreed with the Court and dissented to express his view that the Court was incorrect in several respects. Id. at 583-84 (Rehnquist, C.J., dissenting). First, Rehnquist believed the energy crisis was a critical state and national issue which warranted banning promotional advertising. Id. at 584. Second, he did not think a "state-created monopoly," subject to a comprehensive regulatory scheme, should be afforded First Amendment protection. Id. He referred to the speech at issue as "economic regulation" and believed it should be given much less protection, if any, than the Court gave it. Id. Finally, Rehnquist advocated that the Court inappropriately made a judgment call regarding the drafting of a promotional advertising ban, which, in his opinion, should have been left up to the legislature. Id. Rehnquist also indicated that New York should be able to ban promotional advertising as permissible state regulation since without the extensive state regulatory scheme, it would not enjoy a monopoly. Id. at 588. Furthermore, he indicated that the Courts test nearly raised commercial speech to the same level as noncommercial speech which distracts from the importance of providing First Amendment protection to noncommercial speech. Id. at 591.

(184.) 496 U.S. 1 (1990).

(185.) Id. at 5.

(186.) Id. The trial court had granted summary judgment to the State Bar and had based its decision on the State Bar being a government agency. Id. at 6. Then the California Court of Appeals reversed and held that "while respondents regulatory activities were similar to those of a government agency, its 'administration-of-justice functions were more akin to the activities of a labor union." Id. (citing Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)). Then the California Supreme Court reversed the Court of Appeals in a divided vote. Id. Its rationale was that the State Bars status as a public corporation made it like a government agency. Id. at 6-7.

(187.) Id. at 4, 7.

(188.) Id. at 11. The Court further noted that most of the State Bars functions are simply advisory in nature. Id. Functions such as admission, disbarment, suspension, and the establishment of an ethics code are all done by the California Supreme Court. Id.

(189.) Id. at 12. The Court compared the members of the State Bar to members of an employee union, stating that in both cases there would be the problem of "free riders" if each person receiving benefit was not required to share equally in the expense. Id. The Court discounted the State Bars argument that the compelled association of the State Bar serves a greater public interest than compelled association with labor unions because labor unions serve the greater purpose of maintaining industrial peace for all of society. Id. at 13 (citing Ellis v. Brotherhood of Ry., 466 U.S. 435, 455-56 (1984)).