Johanns v. Livestock Marketing Association5 was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum6 that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent for the result in Pleasant Grove is especially strange. While I think Johanns did not involve government speech and was wrongly decided, that is not the focus of this essay. Even if the speech was the government's, my concern is with the Pleasant Grove attempt to use Johanns as authority for the idea that government speech is "exempt from First Amendment scrutiny.
Steven H. Goldberg, Government May Not Speak Out-of-Turn, 57 S.D. L. Rev. 401 (2012), http://digitalcommons.pace.edu/lawfaculty/873/.
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