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

(239.) Johanns, 544 U.S. at 574 (Souter, J., dissenting).

(240.) See id. at 570-80.

(241.) Daniel Dvorak, Forced Commercial Speech and the Government Speech Doctrine: Discerning and Reducing the Uncertainty Following Johanns v. Livestock Marketing Association, 32 J. CORP. L. 429, 440 (2007).

(242.) 455 U.S. 252 (1982)

(243.) Johanns, 544 U.S. at 562. See Lee, 455 U.S. at 260.

(244.) 262 U.S. 447 (1923).

(245.) See id. at 486-88. The Court in Mellon held that the plaintiff did not have a case because the plaintiff had no close relationship with the general taxes imposed by the federal government. Id.

(246.) Johanns, 544 U.S. at 575-76 (Souter, J., dissenting).

(247.) Lee, 455 U.S. at 260 (1982) (emphasis added).

(248.) Id. at 259. "The remaining inquiry is whether accommodating the Amish belief will unduly interfere with fulfillment of the governmental interest." Id.

(249.) See Johanns, 544 U.S. 550.

(250.) Id. at 562 (citing Lee, 455 U.S. at 260).

(251.) Id. at 562-63.

(252.) See id. at 550; Lee, 455 U.S. 252.

(253.) Johanns, 544 U.S. at 575 (Souter, J., dissenting).

(254.) See Lee, 455 U.S. 252.

(255.) See id.

(256.) See Johanns, 544 U.S. 550.

(257.) See id. at 553-67.

(258.) Id. at 575 (Souter, J., dissenting). In Mellon, the Court was able to articulate the distinction between the more distant relationship between a general tax payer and a general tax and the closer relationship between a corporate taxpayer and a municipal corporation, likening the latter to the relationship between a stockholder and a private corporation. Mellon v. Massachusetts, 262 U.S. 447, 486-87 (1923). The Court further distinguished the closer nexus that a targeted tax creates as it stated:

   But the relation of a taxpayer of the United States to the federal
   government is very different. His interest in the moneys of the
   treasury-partly realized from taxation and partly from other
   sources-is shared with millions of others, is comparatively minute
   and indeterminable, and the effect upon future taxation, of any
   payment out of the funds, so remote, fluctuating and uncertain,
   that no basis is afforded for an appeal to the preventative
   powers....

   The administration of any statute, likely to produce additional
   taxation to be imposed upon a vast number to taxpayers, the extent
   of whose several liability is indefinite and constantly changing,
   is essentially a matter of public and not of individual concern.

Id. at 487.

(259.) Johanns, 544 U.S. at 575 (Souter, J., dissenting).

(260.) Id. at 576 (citing Hurley v. Irish Am. Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 573 (1995)).

(261.) See id. at 551, 574.

(262.) Id. at 575-76.

(263.) Id. at 563.

(264.) U.S. CONST. art. II, [sections] 2, cl. 2.

(265.) Daniel E. Troy, Do We Have a Beef With the Court? Compelled Commercial Speech Upheld, But it Could Have Been Worse, 2005 CATO SUP. CT. REV. 125 (2004-05).

(266.) Id.

(267.) Government Speech Doctrine-Compelled Support for Agricultural Advertising, 119 HARV. L. REV. 277, 287 (2005) (emphasis added).