Most recent free-speech controversies have been about
government efforts to restrict someones right to
express himself. So it is noteworthy that the U.S.
Supreme Court has ruled in a case involving not stifled
speech, but rather coerced speech. Alas, it decided the
case wrongly.
Everyone has seen the generic TV commercials promoting
beef (Its whats for dinner).
Those ads are paid for by the beef cattlemen. But
theres a hitch. Ranchers must help pay the cost
even if they dont want to. Each ranch is assessed
one dollar per head.
This should immediately raise a question: how can some
cattlemen force other cattlemen to pay for something
against their will? After all, you and I have no power to
force others to help us buy television time, no matter
how worthy the cause. If we tried, we would be charged
with robbery.
So how do the cattlemen get away with it? Simple. They
got Congress to pass a law in 1985 to set up the program,
which raises $80 million a year. But some cattle
interests oppose it because they dont like the
campaigns implied message that all beef
grain-fed and grass-fed, domestic and foreign is
alike and because they feel they are ignored by the
Agriculture Department and the Cattlemens Beef
Association. The dissenters went to court and prevailed,
until they reached the high court.
Justice Antonin Scalia led a 6-3 majority in upholding
the coercive program. He was joined by Chief Justice
William Rehnquist and Justice Clarence Thomas. All three
are reputed to be committed to constitutionally limited
government, but this decision should dispel that naive
notion. They were joined by Justices Sandra Day
OConnor, Ruth Bader Ginsburg, and Stephen Breyer.
For Scalia, [The] dispositive question is whether
the generic advertising at issue is the Governments
own speech and therefore is exempt from First Amendment
scrutiny. He decided that it was: The message
of the promotional campaigns is effectively controlled by
the Federal Government itself. The message set out in the
beef promotions is from beginning to end the message
established by the Federal Government.... Congress and
the Secretary [of Agriculture] have set out the
overarching message and some of its elements, and they
have left the development of the remaining details to an
entity whose members are answerable to the Secretary (and
in some cases appointed by him as well). Moreover, the
record demonstrates that the Secretary exercises final
approval authority over every word used in every
promotional campaign.
You may wonder why it matters whether the message is the
governments or a private industrys. Coerced
subsidy of speech is coerced subsidy of speech, right?
Not for Scalia and his colleagues: Compelled
support of government even those programs of
government one does not approve is of course
perfectly constitutional, as every taxpayer must
attest.
Here Scalia makes explicit what few like to think about:
government by nature routinely aggresses against peaceful
individuals. It takes their money for a variety of
purposes, including advocacy, with which they may
vehemently disagree, and they have no legal standing to
object. So much for the vaunted rights of the
minority.
But leaving that aside, does anyone seriously think that
the Beef: Its Whats for Dinner
campaign is something other than a cattle-industry
message? The government is deeply involved in propagating
the message precisely because influential cattle
interests got their connections in Congress to pass the
program. To call the campaign a message established
by the Federal Government defies common sense.
The ruling will most likely validate other
government-sponsored industry campaigns, including the one for pork.
Freedom has taken another hit.
Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine. Send him email.
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