Re: Government Speech and Special Assessments

[Scarberry, Mark]

Just to clarify the point of my earlier post: My concern is not with the source of the funds, but rather with the government using public funds to engage in campaigning, so as to influence voters.   Mark S. Scarberry Pepperdine University School of Law   -----Original Message----- From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Monday, July 28, 2003 4:11 PM To: [EMAIL PROTECTED] Subject: Re: Government Speech and Special Assessments   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       ----- Original Message ----- From: John Nagle To: [EMAIL PROTECTED] Sent: Monday, July 28, 2003 6:40 PM Subject: Re: Government Speech and Special Assessments   I am curious about Howard's proposed distinction.  Candidate elections are about "the public policy that will prevail in the community," too.  And the dangers of elected officials using public funds to entrench their position could easily be matched by non-elected officials doing the same thing.  By the way, if the tobacco assessment is permissible, could the government also tax movie studios to fund an educational campaign against violent entertainment? At 01:50 PM 7/24/2003 -0400, Howard Wasserman wrote: Scarberry, Mark wrote: 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. I would agree as to candidate elections (in which the current officeholders could be using the government entity itself, and government moneys, to perpetuate thier positions of power), but not as to referena.  If the question before the electorate is the public policy that will prevail in the community, then the government (which we ordinarily entrust to make policy decisions and which always will be responsible for carrying out those decisions) should be involved in that conversation to the same degree (and with the same amounts of money) as everyone else.  I would not have been troubled by the California ads, although I would take momentary pause if (as in the recent California case) they were funded by assessments on the tobacco companies themselves. Howard Wasserman Florida International University College of Law John Copeland Nagle Professor of Law Notre Dame Law School Notre Dame, IN 46556 (574) 631-9407 (574) 631-8078 (fax)