Brief Fact Summary. A fee required by the government for government advertising under the Department of Agriculture (D) was contested by the Livestock Marketing Association (P) on the ground that all cattle producers did not agree with the advertised message, and so the fee violated their right to free speech.
Synopsis of Rule of Law. A federal law which requires private funding of advertising even if the payers do not agree with the message is not in violation of the First Amendment in all cases.
Issue. Is a federal statute which compels private parties to pay for advertising a message they do not agree with in violation of the First Amendment in all cases?
Held. (Scalia, J.) No. A federal law which compels private funding of a message by the government even when the parties funding it do not agree with the message is not inevitably a violation of the First Amendment. The content of the speech in this case was completely decided by the government, and so the advertising is government speech. The cattle producers therefore funded government speech by their contributions to the fund. This is acceptable under the First Amendment while compelling others to fund private speech raises the issue of violation of free speech.
When the government sets the overall message to be communicated and approves every word that is disseminated, it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources in developing specific messages.View Full Point of Law
Concurrence. Thomas, J.) Any regulation which makes funding of advertising mandatory needs to be under strict scrutiny but this needs to be modified if the speech is the government’s own speech.
(Breyer, J.) The regulation in this case is economic in nature, but it is acceptable under the First Amendment as funding government speech. This solution is workable, though not arrived at by the best approach.
(Ginsberg, J.) The compelled payments are allowed under the First Amendment as economic regulation, even if the advertising is not interpreted as government speech.
Discussion. The Court was asked to give judgment on a federal program with the object of marketing, for the third time in eight years, engendering a doubt as to the rightness of the prior decisions. The present decision in which advertising was considered in the light of government speech may help to remove certain of these programs out of the reach of the First Amendment.