John Nagle asks: "[I]f the tobacco assessment is permissible, could the government also
tax movie studios to fund an educational campaign against violent
entertainment?"
Perhaps not, but only because that would be a
tax on speech itself -- i.e., on the practice of making movies
-- and presumably the tax would be justified on the ground that the speech
(violent films) causes harm. The First Amendment doesn't permit
that.
But the tobacco tax is a different story
altogether. Growing tobacco, and making tobacco products, is not
constitutionally protected activity. And a tax on tobacco products
obviously does not violate the Constitution, without more. So what's the
constitutional concern with using the tobacco tax revenues for a goernment-run
anti-tobacco campaign? Or, more to the point, why would this
possibly raise a First Amendment concern? I assume all
would agree that the government can run the anti-cigarette campaign using
general tax revenues, and that the First Amendment would not in that case
require any sort of refund to those who disagree with the campaign, those
injured by the campaign, those who think the campaign is a waste of tax dollars,
etc. So why is there any more of a Free Speech concern when the campaign
is (nominally) paid for by a special assessment on the tobacco industry?
(I say "nominally" because although the revenues for the campaign come from an
"earmarked" bookkeeping account, nevertheless money is fungible, and therefore
one can plausibly argue that the campaign is largely subsidized by all tax
revenues, including, e.g., general income and sales taxes.)
Even assuming, as PG&E
suggests, that corporations have a Barnette-like right not to
speak, they're not being required to speak here. Nor are they
being required to "host" government speech on their personal property, as in
Wooley. There is not any risk of misattribution: No one
would think that the campaign expresses the views of the tobacco industry.
And there's no general First Amendment right not to have the
government spend special assessments in a manner that the taxed entity
disapproves -- Phillip Morris surely could not complain if the government used
the special assessment to, e.g., develop a good-tasting no-nicotine
cigarette. So what, exactly, is the constitutional problem?
Marty Lederman
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- Re: Government Speech and Special Assessments Scarberry, Mark
- Re: Government Speech and Special Assessments Howard Wasserman
- Re: Government Speech and Special Assessments John Nagle
- Re: Government Speech and Special Assessment... Marty Lederman
- Re: Government Speech and Special Assess... John Nagle
- Re: Government Speech and Special Assessment... Howard Wasserman
- Re: Government Speech and Special Assessments Scarberry, Mark