Government Speech and Special Assessments

[Marty Lederman]

The Eighth Circuit today held that, even if -- as is, in fact, the case -- the Beef Board and Beef Promotion Operating Committee are Federal Government entities, and even if -- as is, in fact, the case -- the speech of those government entities is (naturally enough) "government speech," nevertheless it violates the First Amendment to compel assessments from beef producers to pay for pro-beef speech of those government entities where the beef producers "disagree" with the government speech.  http://www.ca8.uscourts.gov/opndir/03/07/022769P.pdf.  (Disclosure:  I worked on the case while I was employed at DOJ.)   I've often expressed my views on this list as to the inadequacies of the Abood/Keller/United Foods line of cases, so I won't repeat my harangue here, other than to note that, as Justice Harlan warned in Lathrop v. Donohue, those cases are difficult to reconcile with the notion that taxpayers may be compelled to subsidize government (and private) speech (and other activities) of which they disapprove.  Today's decision suggests that perhaps taxpayers are entitled to a refund whenever they disapprove of the use to which the government puts their compelled payments -- at the very least, where the tax, user fee or assessment applies only to a discrete group of payors.   What is more, the court affirms the district court's injunction prohibiting the government from collection of any assessments from any beef producers, whether or not they are plaintiffs in the case), and whether or not the assessments are used for any "objectionable" speech (an injunction that is, IMHO, indefensible).   Marty Lederman