In a decision that seemed to twist logic unmercifully to arrive at a prescribed conclusion, the U.S. Supreme Court on Monday declared those ads promoting “Beef: It’s what’s for dinner” are not the work of an industry council promoting their product, but are in fact “government speech.” Therefore it’s acceptable to use the coercive power of government to force beef producers who don’t agree with or like the ad campaign to pay for it.
Most Americans who see those agricultural industry promotion ads — think also “Got Milk?” or “the other white meat” — probably believe they’re supported by dues or voluntary assessments on members of industry associations. In fact, almost all those campaigns are backed up by the federal government, which makes it illegal for beef producers (to take the current example) not to pay $1 per head of cattle raised each year to support the campaigns.
A sensible Supreme Court would wonder what clause in the Constitution gives the government power to promote a special interest through taxation and would conclude that the government had no constitutional authority to do such a thing.
Instead, this court has been inconsistent on the issue. It upheld an ad campaign for California fruit in 1997, but struck down a mushroom campaign in 2001. Lower courts have struck down the dairy and pork campaigns, and they’re working their way up to the Supreme Court.
In the beef case, Justice Antonin Scalia, writing for a 6-3 majority, came up with the novel notion that since the secretary of Agriculture oversees the ad campaign, the campaign is government speech, which means it doesn’t violate the First Amendment rights of ranchers who hate the campaign to force them to pay for it. As Justice David Souter noted in dissent, however, “It means nothing that government officials control the message if the fact is never required to be made apparent to those who get the message.”
Those ad campaigns might not be unconstitutional, but the way they’re paid for is unconscionable. Industry associations should raise their own money voluntarily and run their own campaigns.