One Man's Meat Is Another Man's Money

Forcibly funded food ads violate freedom of speech

I yield to no man in my appreciation for beef, so I don't need the Cattlemen's Beef Promotion and Research Board to tell me what's for dinner. If I were completely unconcerned about cholesterol, beef might be for breakfast and lunch too.

I'm not the only one who finds the ads unhelpful. Some of the ranchers who are forced to pay for them, through a government-imposed annual assessment of $1 per head of cattle, complain that generic beef promotion undermines their attempts to distinguish their products from the other guy's. If consumers believe, as the ads imply, that all beef is pretty much the same, they are not likely to specifically look for, say, grass-fed beef, Angus beef, or Hereford beef.

Government-backed campaigns promoting consumption of milk, cheese, pork, peaches, and other agricultural products have provoked similar complaints from producers who consider their offerings superior to those of their competitors. Dairy farmers who eschew bovine growth hormone and give their cows extra space to graze, for instance, want to tout those differences instead of obscuring them with ads that suggest anything leaving a white mustache will do.

These dissenters argue that forcing them to subsidize messages with which they disagree violates their constitutional right to freedom of speech, which includes the right to remain silent. The Supreme Court recently dealt that argument a severe blow in a decision that lets the government have it both ways: It can dodge the First Amendment by declaring forcibly funded ads "government speech," but it need not take responsibility for them.

The decision was especially disappointing because the last time the Court considered this issue, only four years ago, it ruled that mandatory mushroom messages were unconstitutional. That was just four years after it upheld a program that requires growers to support ads for California tree fruit. Now it says generic beef ads, like the peach and nectarine ads but unlike the mushroom ads, do not violate the First Amendment.

The Court insists it never really changed its mind. The fruit ads were constitutional because they were incidental to a broader regulatory scheme under which the government also could tell farmers how much to sell and at what price. The mushroom ads were unconstitutional because the industry is not as heavily regulated.

The idea that restricting one kind of freedom justifies restricting another, that the Constitution prefers more government interference rather than less, does not make much sense. Maybe that's why the majority in the latest case dropped that line of reasoning and instead decided the beef ads do not raise First Amendment issues because the government has ultimate control over their content.

While "citizens may challenge compelled support of private speech," Justice Antonin Scalia wrote in the majority opinion, they "have no First Amendment right not to fund government speech." There's a good reason for that distinction: Taxpayers are bound to disagree with at least some things public officials say, and even a properly limited democratic government could not function if such disagreements were grounds for a constitutional claim. My First Amendment rights are not violated every time John McCain opens his mouth simply because my taxes help pay his salary.

If enough people disagree with a politician or the people he appoints, they can vote him out of office. But as Justice David Souter noted in his dissent, that safeguard is missing from the beef promotion campaign, which is attributed to "America's Beef Producers," with no indication that the messages emanate from the government. "If the government relies on the government-speech doctrine to compel specific groups to fund speech with targeted taxes," Souter wrote, "it must make itself politically accountable."

It is in any case implausible to view the ads as government speech. The promotion programs for beef and other food products do not persist because they express the government's views. They persist because producers who believe they benefit from the ads are using the government's muscle to communicate their message.

If the Supreme Court is right that Uncle Sam wants us to eat more beef, what are we to make of the federal government's Dietary Guidelines for Americans, which warn that "high intake of saturated fats, trans fats, and cholesterol increases the risk of unhealthy blood lipid levels, which, in turn, may increase the risk of coronary heart disease"? Maybe the government just can't make up its mind. The Supreme Court should empathize.