Most recent free-speech controversies have been about government efforts to restrict someone's 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 ("It's what's for dinner"). Those ads are paid for by the beef cattlemen. But there's a hitch. Ranchers must help pay the cost even if they don't 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.
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 don't like the campaign's 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 Cattlemen's 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 O'Connor, Ruth Bader Ginsburg and Stephen Breyer.
For Scalia, "[The] dispositive question is whether the generic advertising at issue is the Government's 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 government's or a private industry's. 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."
Leaving that aside, does anyone seriously think that the "Beef: It's What's 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 (www.fff.org), author of "Tethered Citizens: Time to Repeal the Welfare State," and editor of The Freeman magazine.