Government's ability to speak in the
public debate must be limited to some extent when campaigns are involved. As I
noted once before on this list, at one time the state of California was running ads
suggesting that tobacco companies would lie to the voters who were being asked
to decide referenda on various smoking related issues. I don't know where
the funds for the ads came from, but this was very troubling to me. In the analogous
context of a political campaign for public offices, there must be limits on the
government's ability to campaign. Otherwise a party in power could
perpetuate itself by voting to spend as much as was needed to defeat all
opposition.
Mark S. Scarberry
Pepperdine University School of Law
-----Original
Message-----
From: Howard Wasserman
[mailto:[EMAIL PROTECTED]
Sent: Thursday, July 24, 2003 9:16
AM
To: [EMAIL PROTECTED]
Subject: Re: Government Speech and
Special Assessments
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
