Thursday, November 07, 2002

Beef Imbroglio

It took me a while to suss out the relevant facts in this article about the case of Charter v. USDA, but I think I've finally figured it out. First, some background: The Supreme Court ruled in the case of United States v. United Foods (2001) that individual firms cannot be forced to make contributions for generic advertising. For example, milk producers and distributors can't be forced to help pay for those "Got Milk?" ads that you see all the time. The justification for this decision -- and I think it's a good one -- is that freedom of expression includes more than the right to say what you want to say; it also includes the right *not* to say things you *don't* want to say. And as a corollary, you also have a right not to be forced to subsidize others who are saying those things you don't want to say.

The issue at hand in Charter v. USDA: Major beef producers lobbied for the Beef Act (don't know what year it was passed), which creates a "checkoff" on tax returns. If you check that box, you're agreeing to let the government keep a little more of your money and use it to advertise and promote beef. For reasons that I cannot fathom, lots of taxpayers actually check that box, creating revenues of $80 million annually. But running the program requires funding, and the funding comes from a $1 "assessment" per head of cattle sold. Independent cattle producers have argued, I think correctly, that this is virtually indistinguishable from what the Supreme Court ruled unconstitutional last year.

But the USDA (and the beef associations that lobbied for the Beef Act) defend this program on grounds that the speech in question is "government speech" protected under the First Amendment. The idea is that the government has a right to express ideas, just as private parties do. In this case, the government is simply employing private parties to express the government's message. A federal district court judge bought this argument and ruled in favor of the government. There will be an appeal, of course.

The problem with the "government speech" position, as I understand it, is that it relies on the notion that government actors have the same rights that private citizens do. Yet there are many things private actors can do that are forbidden to government, and rightly so. The Bill of Rights is not there to protect government action, but to limit it. The fact that the funds in question are acquired coercively by the state makes all the difference in the world. Using the First Amendment to justify forcing people to support views they don't necessarily agree with turns the Bill of Rights on its head, allowing it to be used against private citizens for the benefit of government.

Moreover, accepting the "government speech" argument in this case creates a perverse incentive for private interests to lobby for special-interest legislation, because it opens a gaping loophole to the prohibition on forced speech enunciated in U.S. v. United Foods: get the government to do the talking for you.

My non-expert opinion: the district court's decision will be overturned on appeal. But I'd like to hear the opinions of some actual lawyers.

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