Coming after years of constitutional confusion over the many similar programs the Department of Agriculture oversees, for a variety of commodities like cotton, milk and watermelons, the 6-to-3 majority reached its conclusion through a new analytical route that is likely to end much of the courtroom conflict, if not the policy debate behind it.
The speech at issue was "government speech," Justice Antonin Scalia wrote for the majority, and as such was not subject to challenge under the First Amendment. The decision overturned a ruling by the United States Court of Appeals for the Eighth Circuit, which had declared the beef program unconstitutional as an instance of "compelled speech," reasoning that it forced the dissident producers to subsidize a message with which they disagreed.
That decision, in turn, was based on a Supreme Court decision in 2001, which invalidated, by the same analysis, a similar marketing program for mushrooms.
That case, United States v. United Foods, did not address the issue of whether the speech in question was "government speech," instead drawing its conclusion from a line of precedents giving members of labor unions and bar associations the right to withhold their dues from advocacy they did not support.
But the Supreme Court's application of those precedents from the private sector to government programs raised thorny questions about the right of citizens to withhold tax payments if they disagreed with government activities.
Sensing the court's readiness in this case, Johanns v. Livestock Marketing Association, No. 03-1164, to reconceptualize the issue, the solicitor general's office argued that government speech was different and should not be subject to ordinary First Amendment analysis, something the court's precedents had suggested but never explicitly held.
It was an invitation the court grasped.
"Compelled funding of government speech does not alone raise First Amendment concerns," Justice Scalia said, adding, "Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech."
He said it made no difference whether the speech at issue was supported by general taxes or, as in this case, by "targeted assessments devoted exclusively to the program to which the assessed citizens object."
Cattle producers are assessed under the program, generally referred to as a checkoff, $1 for each head of cattle. More than $1 billion has been collected and sent since Congress enacted the program under the Beef Promotion and Research Act of 1985.
Objectors to this and similar programs are typically family farmers or specialty producers who argue that they have nothing to gain, and in fact are harmed, by generic advertising that overwhelms their own efforts to persuade the public that their products are special and worth searching for.
Larry Ginter, a pork farmer in Rhodes, Iowa, who is a spokesman for dissident pork producers, called the decision "outrageous" in an interview on Monday. "Now it's government speech!" he said. "The court has changed horses in the middle of the stream."
The dissident pork producers had won a similar challenge to the pork checkoff before a different appeals court, the United States Court of Appeals for the Sixth Circuit, in Cincinnati. The government's appeal in that case, Johanns v. Campaign for Family Farms, No. 03-1180, is pending at the Supreme Court, which will almost certainly now vacate the appeals court's decision.
Justice Scalia's opinion was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Clarence Thomas and Stephen G. Breyer. Justice Ruth Bader Ginsburg concurred separately, saying that she viewed the assessments in all the marketing cases as "permissible economic regulation."
The dissenters were Justices David H. Souter, John Paul Stevens and Anthony M. Kennedy. In an opinion by Justice Souter, they said the beef campaign amounted to little more than "government deception by omission," because the advertisements gave the impression that they were the voluntary product of the cattle industry with no indication of government sponsorship.
Noting that most of the advertisements say only "funded by America's Beef Producers," Justice Souter said, "If government relies on the government-speech doctrine to compel specific groups to fund speech with targeted taxes, it must make itself politically accountable by indicating that the content actually is a government message, not just the statement of one self-interested group the government is currently willing to invest with power."
These were among the court's other decisions on a busy Monday:
Property Rights
In a unanimous opinion, the court clarified its private-property precedents and overturned an appeals court decision invalidating Hawaii's rent-control law for oil companies.
With an opinion by Justice O'Connor, the court held that one of its own cases, a 25-year-old precedent, was "regrettably imprecise" in suggesting that courts were free to invalidate land-use regulations that did not "substantially advance legitimate state interests."
That precedent, Agins v. City of Tiburon, caused confusion and was "doctrinally untenable" as a test for whether a regulation amounted to an unconstitutional "taking" of private property, Justice O'Connor said. The Hawaii case "foreshadows the hazards of placing courts" in the role of scrutinizing "the efficacy of a vast array of state and federal regulations," she explained.
The new decision, Lingle v. Chevron U.S.A. Inc., No. 04-163, marks a return to the Supreme Court's traditional inquiry, under which it seeks to identify regulations that are "functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain."
The rent-control regulation at issue did not come close to meeting that test because Chevron was still able to earn a reasonable return from the property it leased to service stations, Justice O'Connor said.
Primary Voting
The court upheld Oklahoma's law on eligibility for voting in primary elections, under which a party may permit independent voters to participate, but not voters registered in other parties.
The law was challenged successfully in the United States Court of Appeals for the 10th Circuit by the Libertarian Party of Oklahoma and by Republican and Democratic voters who wanted to vote in the Libertarian primary without registering as Libertarians. The appeals court held that the law placed an unconstitutional burden on the First Amendment right of freedom of association.
But the burden was minimal and did not violate the Constitution, Justice Thomas wrote for himself and three other justices, Chief Justice Rehnquist and Justices Scalia and Kennedy. Justices O'Connor and Breyer concurred in the judgment, making the vote in the case, Clingman v. Beaver, No. 04-37, 6 to 3. The dissenters were Justices Stevens, Ginsburg and Souter.
Prisoner Shackling
The court ruled 7 to 2 that it is unconstitutional to use shackles to restrain a prisoner who has been convicted of capital murder and is facing a jury that will determine whether to issue a death sentence unless there is some special reason for the visible restraint.
The court's precedents have forbidden the routine use of shackles during the guilt phase of a capital murder trial, based on an English common-law rule requiring prisoners to appear "without irons, or any manner of shackles or bonds." In this case, Deck v. Missouri, No. 04-5293, the Supreme Court of Missouri refused to apply the rule to the trial of Carmen Deck, convicted of robbing and killing an elderly couple. During his sentencing hearing, Mr. Deck was shackled with leg irons, handcuffs and a belly chain. The jury sentenced him to death.
In the majority opinion on Monday, Justice Breyer said shackling at any phase of a trial was inherently prejudicial and should not be done without "adequate justification." Justice Breyer said, "If there is an exceptional case where the record itself makes clear that there are indisputably good reasons for shackling, it is not this one."
Justice Thomas dissented in an opinion that Justice Scalia joined. He said the common-law rule should not be "extended by rote to modern restraints," which were different "in certain essential respects" from old-fashioned irons. "My legal obligation is not to determine the wisdom or the desirability of shackling defendants, but to decide a purely legal question," he said.