Faculty Scholarship 1994 - Present

Johanns v. Livestock Marketing Ass'n: Demise of first amendment protection against compelled commercial speech.

On May 23, 2005, the United States Supreme Court in Johanns v. Livestock Marketing Ass�n. (hereinafter referred to as Livestock Marketing) ruled that the United States Department of Agriculture (hereinafter referred to as USDA) did not violate the First Amendment rights of beef producers and ranchers by requiring them to contribute funds to support generic advertisements for beef, because generic advertisements in question constituted the Government�s own speech. Mandated by the Beef Promotion and Research Act, the advertisements were funded through a $1 assessment fee per head of cattle sold. Two associations of beef producers and several individuals who raise and sell cattle objected unsuccessfully to the assessment on the grounds that the beef advertisements violated their First Amendment, because the advertisements promoted beef as a generic commodity and interfered with their efforts to promote the superiority of particular types of beef. Livestock Marketing is the third disparate decision of the United States Supreme Court in the past eight years involving compelled commercial speech. Four years earlier, the United States Supreme Court ruled in United States v. United Foods, Inc. (hereinafter referred to as United Foods), that the assessments imposed on mushroom growers to pay for generic advertisements promoting the mushroom industry under the Mushroom Promotion, Research, and Consumer Information Act of 1990 violated First Amendment protections against compelled speech and compulsory financing of speech. Four years before United Foods, the United States Supreme Court decided in Glickman v. Wileman Bros. & Elliott, Inc. (hereinafter referred to as Wileman Bros.) that compulsory contributions to a generic advertising campaign promoting California tree fruits (nectarines, peaches, and plums) did not violate the First Amendment rights of the fruit producers. In order to set the stage for the analysis of Livestock Marketing, section II of this article will briefly sketch the broad First Amendment background that provides a matrix for examining Livestock Marketing. More particularly, because the beef, mushroom and fruit producers objected that they were forced to be associated with, and to contribute financially to, commercial messages with which they disagreed, this article will examine the leading United States Supreme Court decisions providing First Amendment protection against compelled political speech and compulsory financing of political or ideological views. Likewise, the use of mandatory student fees to support student�s publications containing expression to which some students object is analogous to mandatory contributions to advertisements to which the food producers objected. Hence this article will also consider the leading United States Supreme Court decisions that examined the First Amendment implications of state-related universities utilizing mandatory student fees to support student organizations and expression, and upheld the use of mandatory student fees to support student activities and publications. Part III of this article sketches the trajectory of the Supreme Court compelled commercial speech decisions culminating in Livestock Marketing, providing an analysis that assesses whether the First Amendment protections against compelled political or ideological speech and compelled financing of political or ideological speech continue to hold sway in the commercial speech arena. Part IV of this article concludes that further attempts to apply First Amendment restrictions against compelled political speech to the commercial arena will be futile, and predicts that legitimate attempts to challenge advertising programs mandated by government agencies will be thwarted by the Court�s endorsement of the defense of government speech.