Re: Government Speech and Special Assessments

[Howard Wasserman]

On July 22, Marty Lederman wrote: >On the other hand, see today's decision from the Eastern District of California, holding that a special >assessment against tobacco companies that is earmarked for government-run anti-tobacco ads does >not violate the First Amendment:  >[and described an Eighth Circuit decision as to the Beef Board reaching the opposite conclusion] When I wrote about compelled _expression_, I tried to devise a model for when an objecting payer's free speech right is triggered.  I specifically excluded situations in which the money is compelled, collected, and used by government for its own _expression_.  Government must be able to speak and can do so only through the taxes and other moneys it collects and an Abood/Keller opt-out would severely hamper government's ability to participate in the debate. In thinking about that model, I did not anticipate the situation at issue in the California case--government collecting moneys from a particular, targeted entity (as opposed to general taxes) for the purpose of speech criticizing that very entity or what that entity does.  At least in cases such as Wileman and United Foods, the argument could have been made that the advertising funded would ultimately inure to the benefit of the industry members.  But in the tobacco case, the tobacco companies are paying to fund _expression_ designed to destroy their business.  That sounds like an assessment on the Ku Klux Klan to fund the government's racial tolerance program (an assessment which, if targeted at the Klan or similar groups, obviously would be unconstitutional for other reasons). This is not to disagree with the outcome in the California case (which I think was right) or to agree with the outcome in the Eighth Circuit case (which I think was wrong, for many of the reasons Marty already suggested).  But the California tobacco assessment arguably is more troubling because of the closeness between the singular party taxed and the message being funded.  I still believe the compulsion to fund government _expression_ must fall outside of the Abood/Keller protection, but this case lends a new wrinkle to the question. Howard Wasserman Florida International University College of Law