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The ads typically do indicate that they are brought
to you by, e.g., the Beef Council. But it has not been common to explain
on the face of the ad that the Beef Council is a government entity, subject to
control of elected officials. (The government in these cases is not
"forcing" any speech -- it is speaking itself.)
Over the years there have been several leading
academic discussions of "government speech" that have suggested a
transparency requirement when the government speaks. (I believe such an
argument is present in Yudof's book and/or in Shffrin's article, the two
landmark treatments.) As far as I know, the Court has never embraced such
a requirement. (A helpful discussion of this question is in the section
entitled "Ventriloquism" in Abner Greene's article "Government of the Good," 53
Vanderbilt L. Rev. 1, 49-52 (2000).) I would suggest that, even if there
were such a requirement, it would not follow that the constitutional remedy
would be a refund of an assessment that is used to fund the speech.
Marty
----- Original Message -----
Sent: Tuesday, July 08, 2003 3:54
PM
Subject: Re: Government Speech and
Special Assessments
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.
----- Original Message -----
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
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