Re: Government Speech and Special Assessments

[Malla Pollack]

My thanks to Marty for pointing out this decision which I just read with interest (and no claim of expertise in the area).  I would appreciate help from the experts out there with one point bothers me about the case and the Circuit's explanation of the preceding line of case. I have seen (I think) the advertising at issue (Beef! Its what's for dinner. --sometimes very well done- :-) ) But I could not tell from the ads that this was a message from the government. I have a serious problem with the government being allowed to force speech without clearly telling the audience that the government is forcing the speech. Yet this is not an issue involved in the case analysis. Explain/justify please. Malla Pollack Visiting, Univ. of Oregon, Law 541-346-1599 [EMAIL PROTECTED] ----- Original Message ----- From: Marty Lederman To: [EMAIL PROTECTED] Sent: Tuesday, July 08, 2003 11:32 AM Subject: Government Speech and Special Assessments 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