Johanns v. Livestock Marketing Association – Oral Argument – December 08, 2004

Media for Johanns v. Livestock Marketing Association

Audio Transcription for Opinion Announcement – May 23, 2005 in Johanns v. Livestock Marketing Association

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John Paul Stevens:

We will now hear argument in Veneman against the Livestock Marketing Association.

Mr. Kneedler.

Edwin S. Kneedler:

Justice Stevens, and may it please the Court:

Congress enacted the Beef Promotion and Research Act in 1985 in the midst of a serious depression in the beef industry.

The beef industry found itself unable to respond to that situation through the promotion of its products.

Congress responded to that situation by establishing a government program of promotion, research, and consumer information.

In the Beef Act, Congress prescribed a central message for advertising under the Act, Congress established a government body, the Beef Board, to administer and implement the program, and it placed the program under the control of a Cabinet officer, the Secretary of Agriculture.

Sandra Day O’Connor:

Mr. Kneedler, will you tell us how this case differs, if it does, from what was before the Court in United Foods?

What meaningful distinctions do you find?

Edwin S. Kneedler:

Well, the important distinction is that the two grounds that… on which we are defending the statute here were not addressed in United Foods.

In particular, the government speech argument, that what I’ve just said goes to, that the Court specifically did not address because it had not–

Sandra Day O’Connor:

We’ve never addressed that in–

Edwin S. Kneedler:

–In none of these cases, and–

Sandra Day O’Connor:

–in these cases–

Edwin S. Kneedler:

–Right.

Sandra Day O’Connor:

–have we?

Edwin S. Kneedler:

The Court has not.

And we think that that is… the critical point about this… about this case and these programs, these are government… these are programs of government speech.

As I said, Congress, itself, prescribed the central message.

Congress established the government board, all of whose members are appointed by the Secretary, to administer it.

Antonin Scalia:

Does it remain government speech even if you don’t say, “This is your government speaking”?

Edwin S. Kneedler:

It–

Antonin Scalia:

If you say, you know, “America’s cattlemen are speaking”, is it government speech?

Edwin S. Kneedler:

–It does… for purposes of this Court’s government speech doctrine, it does.

And I think–

Antonin Scalia:

Why is that?

I mean–

Edwin S. Kneedler:

–And the Court… the Court’s decision in Rust, I think, is the best illustration of that.

David H. Souter:

Yeah, but Rust did not… Rust was not a case in which the doctor was saying,

“This is my personal opinion, not the government’s. “

David H. Souter:

And here, as Justice Scalia pointed out, there is an affirmative effort to say,

“This is… this is paid for by. “

whatever it’s called, the cattlemen’s group or the beef group, which affirmatively indicates that it’s not government speech.

Edwin S. Kneedler:

Well, it… all those statements say… and there are advertisements in the record that say that the advertising is funded by America’s beef producers, which is, of course, accurate, because they–

David H. Souter:

Well, it’s accurate–

Edwin S. Kneedler:

–they pay for it.

David H. Souter:

–but it also contains the implication that who… he who pays is the person whose speech is being broadcasted.

Edwin S. Kneedler:

Well, but, again, in Rust, the doctor who spoke… I think the patient who went to see the doctor for counseling would have… would have assumed or believed that the doctor was… in the immediate encounter, that the doctor was speaking, and yet the Court, in its subsequent cases, has regarded Rust as a situation of government speech.

But the important point about what you’ve just asked is that any concerns about the tag line in the advertising does not go to the constitutionality of the statute or the beef order.

Neither the Act nor the order requires that in the advertising.

And if the Court was to perceive that as a problem, the right remedy would not be to invalidate the Act, but to, instead, provide that there should be some different identification–

Antonin Scalia:

–Yeah, but some people–

Edwin S. Kneedler:

–on the advertising, itself.

Antonin Scalia:

–may be more resistant to an… to an ad that says,

“Your government wants to eat… wants you to eat more meat. “

than they are to an ad which say,

“The meat producers would like you to eat more meat. “

Edwin S. Kneedler:

Well, I… and I think in Rust, some people would have been resistant to the idea that your government wants you to engage in family planning, but what the… what the Court said about Rust was that the government had established a program with a central message about counseling.

That was then carried out by private individuals.

Here, this case is much stronger than Rust.

Anthony M. Kennedy:

Well, but if you… if you say the Act can be… say, because this is just an as-applied challenge, you’re asking us to assume that we can put on a label that’s not true,

“This message is brought to you by your friendly Department of Agriculture. “

That isn’t accurate.

Edwin S. Kneedler:

Well, it would be accurate–

Anthony M. Kennedy:

And you’re having us save the statute by just putting a label on it that isn’t accurate.

Edwin S. Kneedler:

–Well, they’re… I’m sure that a label could be devised that would… that would be accurate.

The… first of all, they are approved… specifically approved by the Department of Agriculture.

The… certainly, the Act and regulations provide that the Secretary must approve every contract, every project for advertising.

And, beyond that, the USDA approves all advertising, all copy–

Ruth Bader Ginsburg:

But, Mr. Kneedler–

Edwin S. Kneedler:

–that is actually to be used, so there is specific approval by the Secretary.

Ruth Bader Ginsburg:

–But there is… there’s another tape put out by the government, on meat, and that… what is the government speech?

Usually, the government has a position, and is presenting it.

Here, we have America beef producers has a label on… “Eat meat”.

But if you went to the Surgeon General, probably that message would be “Eat meat moderately”.

So what is the government speech?

I don’t know another case involving a claim of government speech where the message that you are saying is the government’s is not the message that the government is putting out when it’s dealing with its concern for public health.

Edwin S. Kneedler:

Well, the government, in the concern… in situations where it may be concerned about public health, doesn’t say, “Don’t eat meat”.

It… there may be nutritional standards.

And USDA does have nutritional standards that it advises people to adhere to.

But what the government is doing here is facilitating a situation, facilitating promotion of a commodity.

There is a structural defect in a market like… a market for a fungible commodity, and I think it’s important to understand what Congress was responding to here.

When you have a fungible commodity, when you have a lot of small producers, no one of those producers has an incentive to advertise–

John Paul Stevens:

Mr. Kneedler, is meat fungible?

Or… I think there are some steak houses that might disagree with that.

Edwin S. Kneedler:

–Well, there are… there are… there are, to be sure, different cuts of meat, but the… but the basic–

John Paul Stevens:

I mean, even quality of meat within the… some is tougher than others.

Edwin S. Kneedler:

–Well–

John Paul Stevens:

It’s not like milk or wheat.

Edwin S. Kneedler:

–But Congress could reasonably determine, under this statute, that there are… that there are… that beef has many things in common, that it is a generic problem… or generic food or generic commodity, and the industry–

Sandra Day O’Connor:

At some level, it certainly is, I suppose.

But, just as in wheat or corn, there are different brands and different qualities.

But I suppose it’s still fungible, in a broad sense.

Edwin S. Kneedler:

–It is fungible in–

Sandra Day O’Connor:

May I ask you whether, in deciding the government’s speech doctrine, is it the Secretary’s formal right to control, as set out in the statute, that we look to, or do we look to the Secretary’s actual record of oversight–

Edwin S. Kneedler:

–We think the… we think the formal legal control is sufficient.

And it… the Secretary has the responsibility to approve… under the statute… to approve budgets, to approve contracts, and to approve projects.

And USDA does, in fact, go beyond that and determine whether particular advertisements will be… will be issued.

But we think it’s only necessary to look what the statute requires.

But the testimony in this case shows that, in any event, USDA is extensively involved in the development of the advertising under this statute, by extensive consultations with the Operating Committee and the Beef Board in the development of the project.

Edwin S. Kneedler:

So there… this is an integrated effort within the Department of Agriculture.

Stephen G. Breyer:

Is it at all possible to do here what has been done in the union cases, where… I mean, it’s pretty hard for me to believe that there aren’t… that meat… that cattle growers don’t, by and large, like beef.

I mean, maybe they have a ideological objection to people eating beef, but I doubt it.

They probably object to some content.

So can you segregate that?

I mean, in the union cases, the bar cases, they try to segregate where there really is an ideological objection from the cases where really all that the objector wants is not to pay the money.

And so they work out a system.

You know, you pay so much for your dues anyway, you just don’t pay that pro rata amount, where you really have an ideological objection.

Edwin S. Kneedler:

Well, I think that–

Stephen G. Breyer:

Is it possible to work that out?

Edwin S. Kneedler:

–What has… what has been proposed by the… by the Respondents in this case, of course, is to make it voluntary, so that people–

Stephen G. Breyer:

Yeah, but, I mean, if you make it–

Edwin S. Kneedler:

–can opt out.

Stephen G. Breyer:

–totally voluntary, what you’re going to discover is, all of a sudden, the beef people, rather than write a check, will say,

“Oh, you know, I make… I raise cattle, but I don’t think people should eat beef. “

Edwin S. Kneedler:

Well–

Stephen G. Breyer:

That saves them the money.

Edwin S. Kneedler:

–Well, and I–

Stephen G. Breyer:

And I tend to doubt that that’s their view.

Edwin S. Kneedler:

–Well, and–

Stephen G. Breyer:

Some may view… object to certain content.

So I’m asking if it’s feasible to work out–

Edwin S. Kneedler:

–I think it… I think it would not be feasible.

It would… it would enmesh the Department in difficult judgements and time-consuming–

Anthony M. Kennedy:

It would be… in the union cases, it’s hard enough.

It’s a… the good-of-the-order exception is the way it works in the union.

And in the bar thing, I think it would be hard to–

Edwin S. Kneedler:

–Absolutely.

And the Court made a similar point in Southworth, where it specifically declined to impose, on the university, a requirement to make judgements that would enable people to opt out in particular cases.

And we think that the problem here would be even greater.

Edwin S. Kneedler:

But they would be particularly great under Respondents’ proposal that individuals who don’t want to pay, without even having to express an objection, because the whole system would collapse.

This is a classic collective-action, free-rider problem.

Antonin Scalia:

Mr. Kneedler–

Edwin S. Kneedler:

What the numbers–

Antonin Scalia:

–can I come back to Rust versus Sullivan?

You say that that was a government speech case?

I had not recollected it as a government speech case.

Edwin S. Kneedler:

–This Court–

Antonin Scalia:

This is government subsidizing speech by private organizations, and it chose to subsidize one type of speech, but not another.

Edwin S. Kneedler:

–Yeah–

Antonin Scalia:

Did we say, in the opinion, that this was–

Edwin S. Kneedler:

–Not in Rust, but in the Court’s subsequent cases, Rosenberger, Southworth… in particular, in Velazquez… this Court said that Rust has come to be understood by the Court as a government speech case, because the government prescribed a message, and it’s government speech whether or not the government speaks for itself or enlists others to transmit the message.

Antonin Scalia:

–Well, for the precise purpose at issue here, I think it makes a lot of difference.

You can fund private people for some things, and not fund them for others, and it doesn’t make whatever they say government speech.

I think that’s a–

Edwin S. Kneedler:

But–

Antonin Scalia:

–I think that’s a really–

Edwin S. Kneedler:

–but there’s really no–

Antonin Scalia:

–strong proposition, that whenever you’re subsidizing any private enterprise, the speech of that private enterprise becomes public speech.

Edwin S. Kneedler:

–There’s really no need to get to that point here, because the Beef Board, which is the entity that does the speaking, is, I think, unquestionably a government body.

It’s established by special statute under the Lebron test.

All of its members are appointed by the–

Antonin Scalia:

That’s fine.

But what you were using Rust for was to establish the proposition that in order to be government speech, it… you don’t have to… you don’t have to say, “This is the government speaking”.

Edwin S. Kneedler:

–Well, I think–

Antonin Scalia:

And Rust doesn’t stand for that.

Edwin S. Kneedler:

–what… I think, as this Court has come to explain Rust, as being issues of government speech… but, as I say, there is no need… there is no need for the Court to get to that situation.

And the fact that the government is the one in control of the speech here critically distinguished… distinguishes this case from cases like Keller and Abood.

Anthony M. Kennedy:

–This is a question perhaps more for the Respondent than for you, but I would like your comment on it.

Suppose the statute were changed and there was a dollar-a-head assessment on beef, and it just went into the general funds of the United States Treasury, and then they used part of that money… they had more money for beef advertising, and the government did the advertising.

Anthony M. Kennedy:

What would the Respondents say about that?

Edwin S. Kneedler:

I think… I think they would say that that… that there’s something different about general taxes and excise taxes or focus taxes.

But I don’t think there’s any basis in this–

Anthony M. Kennedy:

But why can’t–

Edwin S. Kneedler:

–in history or–

Anthony M. Kennedy:

–why can’t you just do that?

Or is your answer to me,

“Well, then, it’s just formalism, and you might as well rule for me now? “

Edwin S. Kneedler:

–I’m sorry, do… maybe I misunderstood your question.

Anthony M. Kennedy:

Why can’t the government–

Edwin S. Kneedler:

Were you asking why focus–

Anthony M. Kennedy:

–why can’t the government adopt my solution?

Edwin S. Kneedler:

–Well, I… and maybe I misunderstood.

Was it… was it paying for it out of general taxes or taking this money and putting into the focus–

Anthony M. Kennedy:

It’s put into the general fund of the… of the Treasury.

Edwin S. Kneedler:

–I… they may say that that’s the same thing, but I… they were drawing a distinction between paying for it out of general funds… income tax or something… that we all would pay for.

They say that’s the solution, rather than having the industry, that benefits from the advertising, pay for it.

Not only does the industry benefit–

Anthony M. Kennedy:

But then you’d come within the protections of Frothingham versus Mellon, and Massachusetts versus Mellon, if you did it that way.

Edwin S. Kneedler:

–Yes, there would be standing objection… objections at that point, but we think, in terms of the merits of the argument, the notion that a person would have a First Amendment objection to paying an excise tax because of the uses to which the excise taxes are being put is really extraordinary and finds no basis in cases like Abood and Keller, which have to do with private association… an association with private speech–

Anthony M. Kennedy:

But then you could–

Edwin S. Kneedler:

–no government speech.

Anthony M. Kennedy:

–probably restructure this Act to get to the result you want.

Edwin S. Kneedler:

Yes.

If that… but the funds that are raised are public monies.

They don’t go in… they’re not deposited in the Treasury.

But in the Joint Appendix, there is a reproduced… an AMS, Agricultural Marketing Service, circular that explains how these public monies… and calls them “public monies”… are to be disposed of.

And it describes the Beef Board, this governmental body that receives the money, as being the custodian for the Agricultural Marketing Service and handling these monies.

And Congress and the Secretary have imposed strict limitations on how those funds can be deposited.

So whether they go into the general Treasury or whether they’re handled in this way is really a matter of fiscal and revenue and internal governmental policy that I don’t think that–

Ruth Bader Ginsburg:

Mr. Kneedler, this theory is one that wasn’t brought up at all in Wileman, if I remember correctly.

And in United Foods, it was brought up too late, so the government… so the Court didn’t entertain it.

The argument that you’re making today, I take it, would necessarily displace United Foods has having any kind of a continuing–

Edwin S. Kneedler:

–Yes, because the government did not reach the government speech… or the Court did not reach the government speech argument in United Foods.

And, in fact, United Foods is back, on remand.

That was a reversal of summary judgement for the government.

It’s back, on remand, and is being stayed, pending the outcome of this case on government speech.

So there would not be an inconsistent result in–

Antonin Scalia:

You wouldn’t want to treat beef and mushrooms inconsistently.

[Laughter]

Edwin S. Kneedler:

–Well–

Ruth Bader Ginsburg:

–But there is–

Edwin S. Kneedler:

–I think–

Ruth Bader Ginsburg:

–the public perception of these ads… it says, “Eat meat”… it’s quite different from saying,

“Your government wants you to buy meat. “

And the United States isn’t saying that.

So–

Edwin S. Kneedler:

–But what the… what the United States is doing is responding to this classic collective-action problem by establishing a government program to meet the situation where the industry, itself, will… is unable to conduct the advertising because of… because of, what I said, the fungibility of the product–

Ruth Bader Ginsburg:

–But then–

Edwin S. Kneedler:

–and all.

Ruth Bader Ginsburg:

–isn’t it more realistic to describe this as the government facilitating the private speech of the many people in this industry who don’t have a big budget to advertise on–

Edwin S. Kneedler:

I think–

Ruth Bader Ginsburg:

–on their own?

Edwin S. Kneedler:

–doctrinally, it is government speech.

It has the… it has the benefit of enabling the promotion that would have happened in the industry, but for the collective-action problem to occur.

But it is government speech under this Court’s decision.

If I may–

John Paul Stevens:

Do you want to save your time?

Edwin S. Kneedler:

–Please.

John Paul Stevens:

Mr. Garre.

Gregory G. Garre:

Thank you, Justice Stevens, and may it please the Court:

The First Amendment does not prevent the government from speaking out in order to revise and expand the market for the nation’s most important agricultural product.

Anthony M. Kennedy:

If we can just continue on government speech, because that’s where–

Gregory G. Garre:

Yeah.

Anthony M. Kennedy:

–where we left off.

It seems to me there is something offensive about making a particular portion of the public pay for something that the government says.

Gregory G. Garre:

Justice Kennedy–

Anthony M. Kennedy:

It ought to be out of the general fund.

Gregory G. Garre:

–Justice Kennedy, the assessments in this case are imposed on a class of people who sell particular commodity… cattle.

In that respect, they’re no different than the types of assessments the Federal Government has been imposing for centuries on the sale of commodities, from the first tax the Federal Government imposed on whiskey to the excise taxes on gasoline producers today.

And Respondents concede you could do this out of general tax revenues.

They concede that you could have a government speech program funded by excises on certain commodities, like cigarettes or alcohol.

There is no basis under the First Amendment to carve out a different rule in the case of beef.

Anthony M. Kennedy:

What I’m saying, it seems to me that the government speech doesn’t seem to me to advance your argument very much, because it has problems of its own.

Gregory G. Garre:

Well, we agree with the government speech doctrine, although we also think that the Court can uphold the statute under the intermediate-scrutiny analysis.

It makes perfect sense for the government to be speaking out in order to correct a market problem that Congress identified in the midst of a two-decade-long depression in the beef industry.

Take the BSE incident last year.

BSE imposes a potentially catastrophic and overnight impact on the beef industry.

In response to that threat, because of the beef checkoff program, the government was able to respond immediately with the funds necessary to respond on a national scale, not only through promotion… and this is an important part in which this case is different from United Food… only about half of every checkoff dollar goes to promoting beef through commercial advertising, like the

“Beef, it’s what’s for dinner. “

campaign.

The rest of that dollar goes to things like producing information to consumers about the safety of U.S. meat, the… addressing the health concerns imposed by BSE and other potential diseases, like E. coli; going to open up foreign markets so that we can export beef… beef exports have risen dramatically under this program… and going for things like research in order to identify an early-detection system for BSE.

In United Foods, this Court emphasized, at least three times throughout its opinion, that the only aspect of the program that was… the dollar was being collected for was commercial advertising.

And, Justice Stevens, I think you emphasized that in your concurrence, as well.

And this program is much more–

Antonin Scalia:

Yeah, but, I mean, that… the part that’s good can’t save the whole thing, any more than in the… in the union case, the fact that some… the union dues could be used for some permissible purposes, saved the dues that were being used for impermissible purposes.

You–

Gregory G. Garre:

–Well, the union–

Antonin Scalia:

–You don’t want to just save half of this program, do you?

Gregory G. Garre:

–Well, certainly saving half is better than scuttling the whole–

Antonin Scalia:

Oh, all right.

Gregory G. Garre:

–thing, Justice Scalia.

But the union case is… the speech that was… that this Court held could not be funded… and, after all, in those cases, the message was controlled by a non-government entity, the union or the state bar.

But there, you’re talking about political and ideological speech.

Here, we’re talking about beef production… producing–

Stephen G. Breyer:

Well, what’s the objection to, whenever you have an ad, you put a little thing in the corner, and it says,

“This advertisement is paid for by the beef industry under a regulation, X-23, of the Department of Agriculture? “

Gregory G. Garre:

–Justice Breyer, the program would do that if this Court held it was necessary–

Stephen G. Breyer:

And it wouldn’t–

Gregory G. Garre:

–under the First Amendment.

Stephen G. Breyer:

–tough, would it?

Gregory G. Garre:

But–

Stephen G. Breyer:

All you’d have to do is have a little thing… and it would just say,

“USDA requires this, under the program. “

and then the whole problem goes away.

Gregory G. Garre:

–That’s correct.

But let me make a few additional–

Stephen G. Breyer:

All right.

Gregory G. Garre:

–points.

First, as Mr. Kneedler emphasized, nothing in the statute, the regulation, requires the ad to say that they’re funded by America’s beef–

David H. Souter:

Well, I… we realize that.

I mean, we’re getting into it because there’s at least a potential constitutional problem here.

Gregory G. Garre:

–And let me make another–

David H. Souter:

As you respond to Justice Breyer’s question, would you go the step further and say, Why isn’t one possible solution to this difficulty we’re having about government speech a requirement that if you want to justify it as government speech, you put in the advertisement,

“This is the government’s position, paid for by the beef producers? “

Gregory G. Garre:

–The government isn’t hiding from–

David H. Souter:

No–

Gregory G. Garre:

–the messages in its pro-beef ads.

It… Justice Souter, the government could do that, but it’s not hiding from this message.

We think that if the Court–

David H. Souter:

–In fact, there was an indication in the brief that the government had taken the position that if the government came out front and said,

“Hey, we’re urging you to eat more meat. “

that, in fact, it would be very unsuccessful in doing it.

It seems to want to hide the ball here.

Gregory G. Garre:

–Well, the government does do that, Justice Souter.

Last year, during the height of BSE crisis, the President, from his ranch in Texas, urged Americans to eat more beef and told Americans that beef was safe.

That’s the same message that went out, supervised by the United States Department of Agriculture, through the Beef Board, to communicate–

David H. Souter:

Did he–

Gregory G. Garre:

–message.

David H. Souter:

–And who paid for that?

Did beef people pay for that?

Gregory G. Garre:

The President’s message was paid through general tax dollars.

The message under this program is paid through the assessment.

It’s the same message.

The message under the Beef Board is carefully controlled and supervised by the United States Department of Agriculture.

If I could make a point–

Stephen G. Breyer:

Well, let’s be honest about it.

Let’s be totally accurate.

It’s not going to say, “The government believes this”.

The government may not believe it.

What it says is,

“This message is brought to you by the Beef Association under the… under a program requiring contributions to advertising of the Department of Agriculture. “

Gregory G. Garre:

–And–

Stephen G. Breyer:

Nobody will even know what that means, but it has the–

[Laughter]

–it has–

Gregory G. Garre:

–Well, that’s good.

Stephen G. Breyer:

–it has the virtue of being totally accurate.

Gregory G. Garre:

That’s right.

Every single ad that we’re aware of, has the beef check, which is the sign that the beef… or the reasonable observer would know that this is a statute passed by Congress containing a message that Americans should eat more beef, that beef is nutritious, that’s disseminated under a program that’s carefully supervised and controlled by the Secretary of Agriculture.

Stephen G. Breyer:

The important thing is, you have no objection to doing that.

Gregory G. Garre:

We would not, but we also think… and if the Court made that clear in this case, it wouldn’t be a basis for invalidating the statute; it might be a basis for sending it back or an as-applied challenge.

Importantly, we–

David H. Souter:

But what it… what it would… what it would be a basis for, at least within the confines of this argument, would be a basis for your government speech claim in the sense that you wouldn’t be basing a government speech claim on what is really a misrepresentation.

Gregory G. Garre:

–It… we don’t think it’s a misrepresentation.

The speech is funded by America’s beef producers.

The Respondents in this case, the centerpiece of their First Amendment argument–

David H. Souter:

No, including those who don’t want to fund it and who don’t agree with the message.

I mean, the problem here is that by making that representation, you indicate that this is the message of the people who are paying for it.

And some of the people who are paying for it do not wish to convey that message.

Gregory G. Garre:

–We–

David H. Souter:

That’s the misrepresentation.

Gregory G. Garre:

–With respect, we would disagree.

There’s no reason to believe that a reasonable observer would think that just because an ad says it’s funded by the nation’s beef producers, every single one of the 850,000 individual cattle producers in this country agrees with every single–

David H. Souter:

But what they would–

Gregory G. Garre:

–of the message.

David H. Souter:

–what they would, I think, assume is that, in the name, the beef producers do, in fact, agree with this, and this is their message.

What they would not assume from it is that it is what you and Mr. Kneedler are claiming, the speech of the Government of the United States.

They certainly wouldn’t infer that.

Gregory G. Garre:

We think it’s fair to assume, as the Court would under the establishment clause, that they’re familiar with the act of Congress that makes it… this message, as well as the program.

A critical point on this attribution argument is that it’s not supported by any single piece of evidence that Respondents, themselves, have put into the record in this case.

Their First Amendment objection is to the content of the ad.

There’s not a single piece of evidence in the record purporting to make this attribution argument that the public would attribute to the ads to them.

It’s not in the complaint in this case, it’s not in their own affidavits, it’s not in the–

David H. Souter:

Well, maybe–

Gregory G. Garre:

–in the–

David H. Souter:

–maybe it’s not because they didn’t know you were going to be defending on the basis of government speech.

That’s what’s getting us into this.

Gregory G. Garre:

–Well, I highly doubt that, Justice Souter, because the First Amendment claim was added in response to the United Foods case, and this case was developed, from the outset, on a government speech theory.

David H. Souter:

Which wasn’t a government speech case.

Gregory G. Garre:

But it… the case was tried under the First Amendment, under a government speech argument.

But… so the fact that Respondents didn’t put–

Ruth Bader Ginsburg:

This case, not United Foods.

Because United Foods, the Court said it… it was not legitimately before us.

Gregory G. Garre:

–That’s correct.

But my point is that the First Amendment case proceeded after United Foods.

The government’s central argument in the trial was government speech.

The one time attribution came up… and this is at pages 46 and 47 of the trial record… Respondents’ own witness testified that the public was not likely to attribute the message of the pro-beef ad to its organization of beef producers.

So if the Court finds that attribution is a constitutional concern, it’s no basis to bring down the act of Congress on the record in this case.

The… I want to emphasize, if I could, that the program in this case has been effective.

The record establishes that the beef checkoff has had a statistically significant impact on increasing consumer demand for beef and an increase in prices.

That’s contained in the expert testimony of Professor Ward, at pages 100 and 173.

The record also shows that for every checkoff dollar spent on the program, there’s more than a 5.67 rate of return back to the beef producers in the form of increased prices for cattle.

The Beef Board’s 2003 report suggests… finds that the price of a fed steer increased by more than $200 in the past few years.

This program has worked.

Thank you very much.

John Paul Stevens:

Thank you.

Mr. Tribe?

Laurence H. Tribe:

Justice Stevens, and may it please the Court:

As I was listening to some of the questions about whether it would solve the problem to be more candid and say, “This is your government speaking”, I thought I would begin with that question, rather than with an overview of government speech.

You’ll recall Wooley v. Maynard, of course, in which the State of New Hampshire, without sensing the irony of its position, said,

“We’ll put you in jail if you do not say, “Live Free or Die” on– “

Anthony M. Kennedy:

But that was–

Laurence H. Tribe:

–“your license plates”.

Anthony M. Kennedy:

–that was an individual attribution.

You, yourself, had–

Laurence H. Tribe:

Yes.

Anthony M. Kennedy:

–had to carry this message.

Now, here you want us to think of some cowboy–

Laurence H. Tribe:

Well–

Anthony M. Kennedy:

–going into the bar, and he gets jeered by all his friends because he likes beef.

Laurence H. Tribe:

–Well, Justice Kennedy, my–

[Laughter]

–my point… my point was going to be that a footnote on the license plate saying, “This is New Hampshire speaking”, would not have helped.

But one of the central holdings, as I understood it, of United Foods, independent of government speech, was that although there is a difference between having to say something yourself, having to put it on your car, and having to pay for it, that difference does not go to the existence of a First Amendment speech objection… not an association objection, but a speech objection.

Antonin Scalia:

Let’s first address the question you said… you said you were going to address, whether in order to be government speech, within the meaning of our cases, it has to be identified as such.

Is that really true?

I mean, you know, in World War II, Bob Hope would appear in movie theaters and say, you know, “Buy war bonds”?

Laurence H. Tribe:

Yeah, I don’t–

Antonin Scalia:

“This is Bob Hope. “

“You people ought to go out now– “

Laurence H. Tribe:

–Justice Scalia, I think, although it’s an interesting digression about whether the government is being candid, the objection here has nothing to do with that.

Antonin Scalia:

–Okay, so it is–

Laurence H. Tribe:

But being the government–

Antonin Scalia:

–it is not essential–

Laurence H. Tribe:

–It may be.

Antonin Scalia:

–that government might… in order to be government speech, the government does not have to identify itself as the speaker.

Laurence H. Tribe:

I–

Antonin Scalia:

Yes or no?

Laurence H. Tribe:

–I think the answer is yes, it must identify itself, but it doesn’t help, because–

David H. Souter:

Well, it doesn’t–

Laurence H. Tribe:

–the government–

David H. Souter:

–we understand that you have a First Amendment claim, which you’re going to have even if we say, “This is not government speech”.

I think the whole point here is to decide whether this is even–

Laurence H. Tribe:

–No, no, Justice–

David H. Souter:

–an issue that should be disposed of on any grounds other than candor.

Laurence H. Tribe:

–Justice Souter, I think that we’re getting off track by assuming that it helps for it to be government speech.

My point is that a central theme of this–

Antonin Scalia:

Well, just indulge us.

I mean, some of us think it makes–

Laurence H. Tribe:

–Let me–

Antonin Scalia:

–a difference–

Laurence H. Tribe:

–Well, but–

Antonin Scalia:

–and I would–

Laurence H. Tribe:

–but let me ask you whether–

Antonin Scalia:

–I would like to know whether it is essential to its character as government speech that the government’s say, “This your government speaking”.

Laurence H. Tribe:

–It depends on the purpose for which you are acting whether it’s government speech.

In Rust v. Sullivan, even though I think you’re certainly right, Justice Scalia, that in that opinion it wasn’t called government speech, in order to rationalize it, in Rosenberger and Velazquez, it was so described.

But the question there wasn’t,

“Can people be made to support it? “

The question, rather, was,

“Can the government insist on staying within the terms of its grants and saying you can’t talk about abortion? “

When the question is,

“Can the government force you to support it. “

the “it”, if it’s government speech, doesn’t help.

The First Amendment makes it a harder case for them, not easier.

Antonin Scalia:

It does it all the time in general taxes.

Every–

Laurence H. Tribe:

Well–

Antonin Scalia:

–time we pay general taxes, we’re supporting government speech–

Laurence H. Tribe:

–Of course.

Antonin Scalia:

–we may not agree with.

Laurence H. Tribe:

But the Court has said there is a fundamental difference between being singled out, as in Wooley, to have a licence plate, as in Pruneyard, to have someone on your premises.

In Pruneyard, the Court said that one of the reasons it’s okay to require someone to allow a private speaker onto the premises is that he was not required to support a government slogan.

When it is–

Sandra Day O’Connor:

Yeah, but there it–

Laurence H. Tribe:

–government speech–

Sandra Day O’Connor:

–there it is your car, your property.

That’s not this.

This is a generic ad on behalf of beef.

Laurence H. Tribe:

–That was true of–

Sandra Day O’Connor:

I think there is–

Laurence H. Tribe:

–that was true of United Foods.

Sandra Day O’Connor:

–there’s a world of difference between this and having something put on your license plate or in your–

Laurence H. Tribe:

Justice O’Connor, I would be much more offended by having to put it in my license plate.

But if I were raising cattle, and I were told, as they were told in this case,

“cattle equals beef; that’s all it’s worth, and that’s why we won’t let you, in these ads… we won’t let the ads, that you have to pay for, increase the demands for cattle; only beef– “

Sandra Day O’Connor:

–Well, I don’t even understand your argument.

Would you still be here if the–

Laurence H. Tribe:

–I haven’t made it.

Sandra Day O’Connor:

–Well, you’re trying.

[Laughter]

Would you still be here if there were distinctions made on behalf of free-range beef or, you know, “Our cattle”–

Laurence H. Tribe:

Oh, yes.

Sandra Day O’Connor:

–“never had a”–

Laurence H. Tribe:

The most important distinction–

Sandra Day O’Connor:

–“medicine” or something like that?

Would you still be here if those distinctions–

Laurence H. Tribe:

–Well, if it–

Sandra Day O’Connor:

–had been made?

Laurence H. Tribe:

–wasn’t generic… there’s no way for them to have an ad for every imaginable different kind of cattle in one set of advertisements.

I just think–

Sandra Day O’Connor:

Well, I’m just–

Laurence H. Tribe:

–it’s a–

Sandra Day O’Connor:

–asking you if, theoretically, some attention had been paid to the different kinds of producers–

Laurence H. Tribe:

–Right.

Sandra Day O’Connor:

–would you still be objecting?

Laurence H. Tribe:

We would object, fundamentally, if they did not emphasize American beef.

That was our first objection.

They said that they don’t want to emphasize American beef, because, in cross-examination, the officer of the Beef Board said,

Laurence H. Tribe:

“Consumers might actually have a preference for American beef. “

“That would be irrational. “

“We don’t want that. “

And so all of those cattle ranchers can say that,

“We’re proud of it being American. “

They can’t get that in there.

And the other principal thing is that they don’t think of themselves as selling sides of beef.

Some of them are selling dairy cattle, some of them are selling… even if it’s going to, in the end, be in the slaughterhouse… we all die someday… their fundamental belief is that these are animals, and they’re to be cared for.

And the reason that that makes a difference… the reason that it makes a difference is, they can’t even advertise… try to make live cattle more attractive to buy… is that the collective-action problem, if that were relevant here… I think that was really resolved by United Foods… but the collective-action problem is really created, not solved, by what they’re doing.

Because the structure of the market is that there are a few concentrated meat-packers.

Something like four slaughter 80 percent of the… of the cattle in the United States.

They have the bargaining power.

And in the record, their support for the findings of the District Court, that when the demand for beef goes up through these generic ads saying, “Eat beef”… although they certainly don’t say,

“Your government says you should eat beef, beef, beef. “

–but when the demand for beef goes up, the profit is pocketed by the meat processor, the meat packer, the restaurant, the supermarket.

And these guys still end up taking their cattle to market, and often having to pay a dollar checkoff, even though they can’t even get the price of the… of the cattle back.

So–

Stephen G. Breyer:

But would it–

Laurence H. Tribe:

–the free rides are now taken by the people who don’t pay–

Stephen G. Breyer:

–seems to–

Clarence Thomas:

–don’t pay anything.

Stephen G. Breyer:

–I understand that a person could have an ideological objection to the content of the ad.

But the ad, itself, is an effort by government, in this area, to regulate a commercial matter, not a license plate that says, “Free Speech, or Die”, or “Freedom”–

Laurence H. Tribe:

–But it regulates speech, Justice Breyer.

Stephen G. Breyer:

–Yeah, I know.

Right now I’m asking–

Laurence H. Tribe:

They don’t–

Stephen G. Breyer:

–Well, my question is, Does it make a difference for the point of distinguishing, or not distinguishing, 99 percent of the way it’s carried out, has to do with simple advertising, commercial advertising, the regulation of a commercial matter, commerce–

Laurence H. Tribe:

–Right.

Stephen G. Breyer:

–does that make a difference?

Laurence H. Tribe:

I think it makes an emotional difference.

Stephen G. Breyer:

But no legal difference.

Laurence H. Tribe:

Not in the context of forcing people to pay.

Stephen G. Breyer:

So, in other words–

Laurence H. Tribe:

It makes a difference–

Stephen G. Breyer:

–in other words, a program that is a regulatory program regulating commerce, we should no longer think of that, though we tend to think of it as quite different in the way we approach the First Amendment… we no longer, in your view, should?

Laurence H. Tribe:

–No, no.

I think, certainly if we are regulating economic transactions and only dealing with speech in a purely ancillary way… that is, we’re regulating sale, transaction–

Stephen G. Breyer:

We regulate advertising.

We regulate commercial advertising.

Laurence H. Tribe:

–Right, but the–

Stephen G. Breyer:

The Federal Trade Commission–

Laurence H. Tribe:

–network–

Stephen G. Breyer:

–Yeah.

Laurence H. Tribe:

–didn’t you say that just the fact that you call it commercial speech only means that when you are regulating problems of a transactional kind… deception, overbearing… then the fact that it’s commercial speech makes a big difference.

But you can’t just generically say that because something doesn’t fit your idea of what’s ideological… I mean, to these ranchers, the ideology–

Stephen G. Breyer:

I didn’t say–

Laurence H. Tribe:

–is different–

Stephen G. Breyer:

–I didn’t say they had a–

Laurence H. Tribe:

–But whose–

Stephen G. Breyer:

–commercial objection.

Laurence H. Tribe:

–whose line… whose line between ideology and commerce will–

Stephen G. Breyer:

I am asking.

In analyzing the program, there are some things for it, and there are some things against it.

And in trying to make that weighing, I do think it’s different, because the basis of the program is commercial regulation.

And so I want to be certain, in your view, that’s either correct or incorrect.

Laurence H. Tribe:

–I think it’s–

Stephen G. Breyer:

If it’s incorrect, I want to know why.

Laurence H. Tribe:

–Well, I think it’s… if one were just weighing and didn’t have a structured set of principles on the balance in favor of it, I think, you’re right, we can’t… they’re not trying to induce ideological conformity.

This is not a case where they’re trying to enforce what Justice Jackson calls “the unanimity of the graveyard”.

Laurence H. Tribe:

It is a case where the spirit of the government is in the right place.

The government is trying to facilitate collective speech when–

Stephen G. Breyer:

But does it make a difference?

If it makes a difference, then the lens that I look at this through is called our… whatever the second-tier commercial speech lends.

Laurence H. Tribe:

–I don’t think–

Stephen G. Breyer:

Have you looked at–

Laurence H. Tribe:

–That doesn’t follow.

I don’t think that follows.

It follows that if you were… if you were writing on a clean slate and were trying to create a wholly new doctrine, one of the things you would look at, I suppose, is that this is not a program designed to create ideological conformity in America.

At least the spirit of the program is not that.

But the road to hell is often paved with good intentions, and the means, in this case, that was chosen, was not to have the government spend some more money telling people,

“Beef isn’t all as bad for you as you think. “

The remedy that they are choosing is to pick a group of ranchers and say to them,

“You are the ones who are going to pay, and you are going to pay for– “

John Paul Stevens:

Mr. Tribe, would–

Laurence H. Tribe:

“# ads that are in your name. “

John Paul Stevens:

–would you comment on the argument that… what will this do to compelling cigarette manufacturers to finance the advertisements against smoking?

Laurence H. Tribe:

Well, by “advertisements against smoking”, Justice Stevens, if you mean,

“Here are the things that will kill you in cigarettes. “

the kind of thing that’s on the package now, it seems to me that it is constitutional, under even cases like Zauderer, to say that whoever sells a product or a service–

John Paul Stevens:

They have to give warning.

But why is the… why is the cigarette analogy different from this case?

What is your answer to that?

Laurence H. Tribe:

–Well, it seems to me that no one suggests that the cigarette companies are supporting the ads in California.

California is doing exactly what the Surgeon General does.

Anthony M. Kennedy:

Well, it’s odd that you can be compelled to–

Laurence H. Tribe:

Say negative things–

Anthony M. Kennedy:

–engage in speech that you don’t agree with.

Now you’re saying that the more–

Laurence H. Tribe:

–Right.

Anthony M. Kennedy:

–disagreeable it is to you–

Laurence H. Tribe:

Well–

Anthony M. Kennedy:

–the more legitimate it is.

That’s–

Laurence H. Tribe:

–I think if you’re–

Anthony M. Kennedy:

–a very strange argument.

Laurence H. Tribe:

–Well, it may be strange, but I think that there have been stranger things.

The reason that it’s true is that if you go around doing things that might endanger people, it’s entirely justifiable for the state, as part of its non-speech effort to protect people–

Sandra Day O’Connor:

Well, do you–

Laurence H. Tribe:

–from harm, to make you give warnings–

Sandra Day O’Connor:

–do you accept the fact that the government can charge taxes on the sale of cigarettes and compel… and use that money to tell people that they’re dangerous?

Laurence H. Tribe:

–Well, I think that’s a much harder case than this, to be honest with you.

I think–

Sandra Day O’Connor:

We do, however.

Laurence H. Tribe:

–Well, California does that.

Sandra Day O’Connor:

Is that part of what’s going on?

Laurence H. Tribe:

In California, it does.

Sandra Day O’Connor:

So what you’re arguing here–

Laurence H. Tribe:

Yeah.

Sandra Day O’Connor:

–is going to have rather a drastic effect on–

Laurence H. Tribe:

Well, I think the–

Sandra Day O’Connor:

–what’s going on.

Laurence H. Tribe:

–drastic effect would be the other way, wouldn’t it?

If this Court were to hold, despite United Foods, that it is permissible to force people to support speech they don’t agree with, as long as that speech doesn’t fit our sense of what’s ideological, that cuts to roll back Keller and Lehnert and Abood.

It’s not a small part of the constitutional landscape that would be unearthed.

Whereas, think about what is the marginal effect of saying–

Antonin Scalia:

Wait, I don’t… I had not understood you to be arguing, Professor Tribe, that this would be unlawful, even if the money were raised in the fashion that it is, just from the… just from the cattlemen.

And the government’s own program used that money to say,

“Your government thinks it’s… wants you to know that beef is thoroughly safe. “

“We’ve done studies. “

Antonin Scalia:

“Beef is good for you. “

“You should eat more beef. “

I thought you–

Laurence H. Tribe:

–No, I do think that would be permissible.

Antonin Scalia:

–That would be permissible?

Laurence H. Tribe:

Because, I mean, technically, it would solve only the association problem.

They’re not associated with the message.

They’re still forced to support it, but not in any sense different from general taxpayers.

And because that’s the case, and because it would be an odd formalism to say that it makes a difference whether we segregate that money or not, it seems to me it would follow that if the government is willing to pay the political cost of having the speech be perhaps less persuasive because of… people discount what the government says and of having to get an appropriation from the taxpayers… I mean, taxpayers are smart enough to know–

Sandra Day O’Connor:

No, not that.

The same program, but you just have a little tag on the ad.

Laurence H. Tribe:

–Like the lockbox?

I mean, every… I think the taxpayers know that money is fungible.

Well, in this case, you mean if you had the program, not from general revenue, but you simply said, on the ad,

“This is actually part of a government program? “

I don’t think that solves any problem, other than deception.

David H. Souter:

What’s the–

Laurence H. Tribe:

Deception is the… my constitutional argument.

David H. Souter:

–what’s the difference between the checkoff and the excise tax?

Laurence H. Tribe:

Well, the checkoff in this case is, it’s money that goes to a group, which, though it is organized by the government, purports to represent–

David H. Souter:

So the answer is–

Laurence H. Tribe:

–the way it structured–

David H. Souter:

–where–

Laurence H. Tribe:

–these people.

David H. Souter:

–where the money goes and who pays out the money for the ad, that’s the difference.

Laurence H. Tribe:

Well, the difference is the whole structure.

Keep in mind–

David H. Souter:

Well, isn’t that the… isn’t that the essential difference between the structure in this case and the structure in the case in which the government comes out, saying,

“This is your government, saying, “Don’t smoke”. “

Laurence H. Tribe:

–Yes, one… the difference is that in one case, we’ve got Congress, we’ve got the executive, we have one–

David H. Souter:

Right.

Laurence H. Tribe:

–person, one vote.

Here, we have a million–

Stephen G. Breyer:

–I know, but take all that out of it… take all that out of it, and what is your answer to Justice Stevens and Justice Souter?

That is, look, like this, you have an organization, the Federal Trade Commission, say, or that the FDA says, on the one hand, (a) broccoli industry,

“Fruits and vegetables are good for you; crib death device. “

Buy anti-crib-death devices;

“Buy car seats for your children. “

or, “Don’t smoke”; or–

Laurence H. Tribe:

–Well, I mean–

Stephen G. Breyer:

“# Don’t buy a crib without a crib-death device– “

Laurence H. Tribe:

–I mean, I think it’s–

Stephen G. Breyer:

“# or a car without a car seat. “

Laurence H. Tribe:

–Right.

Stephen G. Breyer:

See?

One’s negative and one’s positive.

And everything else is the same.

Then how do you–

Laurence H. Tribe:

Whether it’s–

Stephen G. Breyer:

–what’s the difference?

Laurence H. Tribe:

–negative–

Stephen G. Breyer:

Yeah.

Laurence H. Tribe:

–or positive, it’s the government–

Stephen G. Breyer:

Okay, maybe it doesn’t matter.

Laurence H. Tribe:

–Well, no, it matters, in this sense.

When the government puts out a message and puts its credibility behind the message, likely to have to balance… it’s going to say,

“A little broccoli, but a little steak. “

“Don’t risk crib death”–

Stephen G. Breyer:

But I’m not interested… I got that point.

Laurence H. Tribe:

–Right.

Stephen G. Breyer:

I’m not dismissing it.

I understand.

Laurence H. Tribe:

All right.

Stephen G. Breyer:

But I’m not sure–

Laurence H. Tribe:

So I’m not understanding what your question is.

Stephen G. Breyer:

–Well, my question is, Is it implied in what you’re argued that it would be equally unconstitutional, in the same way, to tell the cigarette industry to advertise, “Don’t smoke”, or to tell the automobile industry to advertise,

“Buy car seats for your children. “

or to tell the crib industry to advertise,

“Be sure you have an anti-crib-death device? “

Laurence H. Tribe:

I think–

Stephen G. Breyer:

And all that, assuming the financing is the same as here, everything else the same, is it implicit in your argument that they’re all equally unlawful?

Laurence H. Tribe:

–No.

My argument is that you can require the seller of any commodity to include warnings.

It does not necessarily follow that you can say to an industry,

“You’re bad guys. “

“We want you to put on an advertising campaign, and the campaign has to have these characteristics. “

Forcing them to advocate that people not buy their products, I think, is not the same thing–

Ruth Bader Ginsburg:

Mr. Tribe–

Laurence H. Tribe:

–as forcing them to say–

Ruth Bader Ginsburg:

–I thought–

Laurence H. Tribe:

–that it will be addictive or that it will cause cancer.

John Paul Stevens:

But you’re saying–

Ruth Bader Ginsburg:

–I thought–

John Paul Stevens:

–I want to be sure I… that I understood your answer.

You can compel them to make warnings.

Can you compel them to pay for warnings that are just industry-specific, in saying, “This is dangerous”–

Laurence H. Tribe:

I think so, because I can’t see any difference between saying that… you put on the package,

“The Surgeon General has determined that smoking will cause cancer. “

and saying,

“We’re going to put on television– “

John Paul Stevens:

–But it seems–

Laurence H. Tribe:

–“the Surgeon General”–

John Paul Stevens:

–almost ironic, to me, to say that you have a greater power to tell the whole industry to publish something they don’t want to publish than you do to let them–

Laurence H. Tribe:

–But that… Justice Stevens, what–

John Paul Stevens:

–pay for what–

Laurence H. Tribe:

–what is–

John Paul Stevens:

–90 percent of them want to say.

Laurence H. Tribe:

–what is the difference between telling them that… I mean, there may be a critical difference between the point of sale and a generic ad… that is, the power to regulate the transaction to make sure it’s safe, including the power to include on the package certain warnings.

The moment you step back from that and say that,

“Because you’re in a dangerous business, you have to publish general warnings to the public. “

maybe that’s where the line has to be drawn, because I agree that it would be rather bizarre–

John Paul Stevens:

Are you limiting your point to putting information on the package, or are you saying they could… could California compel a cigarette… companies to contribute to a large fund which is just used to by newspaper advertising describing the dangers of smoking?

Could they do that?

Laurence H. Tribe:

–Well, I think that the rationale for that would be far stronger than this.

The state’s power to protect people, in terms of life and health, includes the power to compel–

John Paul Stevens:

But supposing there are disagreements.

We were… you were talking about cigarettes.

But supposing there’s a legitimate disagreement between the industry position and the government position–

Laurence H. Tribe:

–Okay.

John Paul Stevens:

–could the government, nevertheless, insist on the industry financing advertising advocating the government’s position?

Laurence H. Tribe:

Well, not advocating; reporting what the government position is.

I mean, the… when the cigarette company says on the package,

“The Surgeon General has found this stuff is deadly. “

they’re not quite saying,

“We agree with the Surgeon General. “

They’ve… making them fund or support statements that do not reflect their own beliefs, as though it were–

Anthony M. Kennedy:

So, in this case–

Laurence H. Tribe:

–is impermissible.

Anthony M. Kennedy:

–I take it, it would be okay if the beef producers had to use a dollar a head to put,

“Eating too much beef is dangerous to your health. “

Laurence H. Tribe:

Well, if they had… well, they’re not beef producers.

I mean, I am troubled by… they’re… these are cattle.

Anthony M. Kennedy:

All right, cattle, then–

Laurence H. Tribe:

All right?

And then… and then they’re trying, ultimately, to brand us as though we are slicing these things up and selling them.

Anthony M. Kennedy:

–But what’s the answer to my question?

Laurence H. Tribe:

If the question is, Can retail grocers be required to put on the beef packages they sell,

“The government has determined that the cholesterol content is dangerous if you have more than X. “

I see no reason why that would be harder–

Stephen G. Breyer:

In other words–

Laurence H. Tribe:

–to defend than the cigarette package.

Stephen G. Breyer:

–I think the question, or at least the version I have of it–

Laurence H. Tribe:

Yes.

Stephen G. Breyer:

–is, we have this case, exactly, and the only difference is, instead of getting these people to eat… say, “Eat beef”, what they say do is, they get people together and say, “Don’t eat too much beef”.

I put–

Laurence H. Tribe:

Well–

Stephen G. Breyer:

–“too much”, because that–

Laurence H. Tribe:

–Yeah.

Stephen G. Breyer:

–makes it more realistic.

All right, now, does it suddenly become constitutional?

Laurence H. Tribe:

The program is facially unconstitutional.

It is the structure that says to all these people,

“You’ve got to put money into this elaborate structure, which purports to represent you. “

–that is, the… they have all this stuff saying that the Beef Board is related to the industry as board of directors, the shareholders…

“These people, who purport to represent you, will, under the aegis of the government, put out statements at various times. “

That’s facially unconstitutional.

David H. Souter:

All right.

Consider this theory.

The Congress passes an excise tax.

It happens to be a dollar head, on the cattle, just like this so-called “checkoff”.

David H. Souter:

And the government uses the excise tax revenue to finance advertising, saying… maybe saying, “Eat more beef”, maybe advertising, saying, “Don’t eat quite so much”.

Laurence H. Tribe:

Or maybe–

David H. Souter:

First Amendment problem–

Laurence H. Tribe:

–talking about the war in Iraq.

No, I think that once your taxes enter the general fund, the pretense that it’s–

David H. Souter:

–Including excise.

Laurence H. Tribe:

–Well, I don’t think excise taxes are segregated in any way that makes… that makes it harder–

David H. Souter:

No, I just want to know what–

Laurence H. Tribe:

–than Social Security.

David H. Souter:

–your position is.

I just want to know what your position is.

Laurence H. Tribe:

My position is that once the revenue is part of the government’s general fund, the government’s subject to doctrines that I don’t think are First Amendment doctrines about government propaganda… there may be limits on the government’s ability–

David H. Souter:

Okay, then–

Laurence H. Tribe:

–to defend it.

Ruth Bader Ginsburg:

–He’s just going back to–

Laurence H. Tribe:

Subject to that–

David H. Souter:

–Okay, then it does not have–

Laurence H. Tribe:

–it’s not a First Amendment problem.

David H. Souter:

–it’s not a First Amendment problem.

It does not have the objection that you’re raising.

Laurence H. Tribe:

That’s correct.

David H. Souter:

Okay.

Ruth Bader Ginsburg:

–Is that… is that an answer to the question that Justice Kennedy urged in the opening argument?

That is, It’s the same dollar a head, except you call it an excise tax instead of a… whatever this is called.

The same thing, but to say it’s a tax.

And you’re not… this is not general revenues that you collect from everybody and spend–

Laurence H. Tribe:

If the structure is they take the money from you and put it in this elaborate machinery which comes out with statements you’re forced to support, the statements that don’t have behind them the accountability checks of the Federal Government, which has to answer to taxpayers and answer to the public for the stuff it puts out… that is… if that’s what it is, it doesn’t matter what you call it, it remains unconstitutional.

It remains unconstitutional because these individuals are forced in a way that taxpayers are not… forced to be part of a system in which, even if you have footnotes saying,

“This is pursuant to the government. “

a system in which they will be generally understood in just the way Justice Breyer said,

Laurence H. Tribe:

“Well, you know, we assume– “

Ruth Bader Ginsburg:

–But suppose–

Laurence H. Tribe:

–that these people–

Ruth Bader Ginsburg:

–we don’t have that?

I mean, could then… could the government fix this problem this way, saying,

“We’re going to get the same bucks, but we are going… and we’re going to have the same kinds of ads, but they’re going to be labeled, U.S. Department of Agriculture> [“]. “

Laurence H. Tribe:

–And we’re going to eliminate the cattlemen’s Beef Board and all of these things–

Ruth Bader Ginsburg:

Yes.

Laurence H. Tribe:

–that are supposed to represent you–

Ruth Bader Ginsburg:

But we are… but where this money is coming from to pay this is–

Laurence H. Tribe:

–I would be happy to represent the cattlemen in that circumstance, saying,

“You still have not an associational right, but a right not to be singled out to support government speech. “

But it would be a different and more difficult claim.

One.

Two, this Court doesn’t have before it the possibility of rewriting all of this.

Three, there was a severability provision in an earlier version of the law suggesting that maybe if you could lop something off, it would be okay.

But that was eliminated in the current law.

And, finally, any attempts to analogize this to the cases like Lehnert and Keller, in terms of remedy, that maybe we can create some scheme where only the objectionable part is returned, is fundamentally incoherent, because what is objectionable here is homogenizing all of these people into some one message, and putting it out through this elaborate structure that purports to represent them.

David H. Souter:

May I go back to one of your reasons, which was that they are being singled out to pay for this?

They’re being singled out to pay for it in the excise tax situation.

Do you come to different answers, depending whether it’s excise tax or singled out without excise tax, based, essentially, on the ground that there is a point beyond which we simply cannot look behind the expenditure of tax revenue?

Is that it?

Laurence H. Tribe:

I think that there’s a point beyond which, for institutional reasons, it would be very problematic for Courts to say that you could trace the dollars into the treasury and those institutional reasons would be, I think, an instance of under-enforcement of a constitutional norm, because the underlying constitutional principle that you ought not to be able, by some gimmick, to get some people to support speech they don’t believe in, that would be there.

But the difficulty of having this Court enforce that principle, I think, would be very real.

But no such difficulty, I think, is presented in a case like this one, because if this case came out their way because of government speech, of course, United Foods would be obliterated, but a good deal more would be obliterated, because the theory would have to be that because it’s not on your license plate, because you don’t have to carry it, you’re only supporting it, then that’s all the difference in the world.

Because, otherwise, its being government speech would make it worse.

But if it’s all the difference in the world whether you have to carry or utter it, or merely support it, then all of the decisions of this Court carefully protecting the rights of dissenters in every imaginable kind of organization, from the powerful overriding theory that collective-action problems mean that we’ve really got to get more speech over here than you are willing, yourselves, to engage in–

John Paul Stevens:

Yes, but on the other hand–

Laurence H. Tribe:

–you’d be–

John Paul Stevens:

–you’re running into the problem that the taxpayer can be compelled to pay taxes to support activities that he doesn’t support at all.

John Paul Stevens:

That’s the other–

Laurence H. Tribe:

–Well, we do that all the time.

John Paul Stevens:

–the other extreme.

I know we–

Laurence H. Tribe:

We do that all–

John Paul Stevens:

–do it all the time.

Laurence H. Tribe:

–the time.

John Paul Stevens:

And when are we crossing–

Laurence H. Tribe:

That’s the–

John Paul Stevens:

–the line?

Laurence H. Tribe:

–that’s why we have elections, in part.

John Paul Stevens:

Pardon me?

Laurence H. Tribe:

Right?

We have elections, in part, because the only way… there’s no way to protect every individual’s right to have the government’s collective policy suit his or her fancy.

I mean, that way–

John Paul Stevens:

But it is–

Laurence H. Tribe:

–would allow complete chaos.

John Paul Stevens:

–inconsistent with the basic principle on which you rely, that the individual should not be compelled to support speech–

Laurence H. Tribe:

Well–

John Paul Stevens:

–with which he disagrees.

Laurence H. Tribe:

–to support… supporting speech is somewhat different from supporting activities that you don’t agree with.

I mean, the First Amendment makes a fundamental difference in that respect.

David H. Souter:

But isn’t–

Laurence H. Tribe:

If there were–

David H. Souter:

–isn’t that–

Laurence H. Tribe:

–I’m sorry.

David H. Souter:

–Don’t you go back to the answer you gave me?

Sure, when taxes are involved, there may be an under-inclusive enforcement of certain individual rights, but they have to be under-enforced, because, otherwise, you simply cannot administer a tax structure.

Laurence H. Tribe:

Or any structure.

I mean, Bowen v. Roy… I mean, there’s a sympathetic case of the man who did not want Little Bird of the Snow to be given a Social Security number.

Laurence H. Tribe:

But we could, when we, interactive with the government, say to him,

“You… we can’t make you give the number to get the food for your little daughter. “

but if one person says,

“I don’t want numbers in your computers. “

and the other says,

“I don’t want letters, I want only numbers. “

the fact that every individual who has a potential claim on a collective choice could pull in a different direction means we can’t run a system that way.

But no such problem is presented in cases like this.

John Paul Stevens:

Thank you, Mr. Tribe.

Laurence H. Tribe:

Thank you.

John Paul Stevens:

I think we understand your position.

Thank you.

Mr. Kneedler, you have about three… three or four minutes.

Edwin S. Kneedler:

Thank you, Justice Stevens.

Mr. Tribe has conceded that if this program were financed by a system of excise taxes that went into the general Treasury, and Congress then paid… provided the exact same amount of money to produce the exact same ads, that there would be no constitutional problem.

And, in our view, the First Amendment simply does not regulate the details of government fundraising, the details of government accounting, and the details of government bookkeeping in that manner.

The First Amendment is–

Anthony M. Kennedy:

But that goes back to Frothingham and Mellon, and Massachusetts versus Mellon, and United States versus Butler, where we could trace the amount.

Edwin S. Kneedler:

–Right, and–

Anthony M. Kennedy:

It’s old stuff.

Edwin S. Kneedler:

–Right, and the Court… the Court superceded those decisions in cases like Carmichael Coal and Storaasli Company and cases like that, where the Court said excise taxes can be imposed.

As long as there is a public welfare justification, they can be spent.

And it would be an odd result to have the First Amendment drive the way the government arranges a system like this.

After all… and Professor Tribe said it would be different if the cattlemen’s Beef Board were gotten rid of.

It actually… the principal point here is the Secretary controls the speech.

Whatever the cattlemen’s Beef Board does… and that is a government entity… the Secretary controls the speech.

So that… this is not some jury-rigged system; this is a system of governmental control.

Congress has prescribed the message, and the Secretary carries it out.

It’s important to recall that many federal excise taxes go into dedicated trust funds… for highways, for other functions like that.

And out of that dedicated trust fund, there may be money expended on highway safety.

Edwin S. Kneedler:

So the fact that it’s dedicated really should not matter.

And this case is completely different from cases like Keller.

In Keller, the state bar was not appointed by the… by the government, there was no governmental supervision of what it did, and the government certainly did not approve the messages in favor of nuclear freezes, et cetera.

This is different in all the critical ways that make this a program of government speech.

And, as Justice O’Connor pointed out, to strike down this program would have drastic consequences.

There are many, many agricultural promotion programs like this.

There are 13 at the national level.

This program has been in existence since 1988.

One billion dollars has been collected, and promotions have been conducted under it.

These promotional programs go back to the ’50s, and even… and even earlier.

And there are many programs on the state levels, as the amicus brief filed by the states in this case shows.

This Court would be striking down a lot to hold that this commonsense way of approaching things is unconstitutional.

It’s also important to recognize that the ultimate beneficiary of the advertising is the consumer.

Yes, it affects the industry, but it’s the consumer.

And the very first finding that Congress made in the Beef Act is, beef and beef products are basic foods that are a valuable part of the human diet.

When the… when the… because of the collective-action problem in this industry, that it cannot organize to advertise, that basic message is not getting to consumers.

So this… the justifications for this, to the extent one thinks of it in terms of the commercial speech, it is squarely within the ultimate purposes of the commerce speech doctrine, which is to correctly market failure with respect to advertising in order to get information to consumers.

John Paul Stevens:

Thank you, Mr. Kneedler.

The case is submitted.