The Very Idea of a First Amendment Right against Compelled Subsidization

Abstract:     
On March 24, the Supreme Court granted certiorari in Veneman v. Livestock Marketing Associations, Docket No. 03-1164, which presents the question of whether mandatory assessments on beef producers used to fund generic beef advertising violate the First Amendment rights of dissenting industry members. The Court undoubtedly decided to hear the case to resolve the sharply diverging reasoning in its two earlier decisions on industry-association advertising, Glickman v. Wileman Brothers and Elliot, 521 U.S. 457 (1997), and United States v. United Foods, 533 U.S. 405 (2001).

This article discusses the compelled subsidization doctrine, which holds that there is a First Amendment right not to subsidize the speech of others. The Supreme Court has considered the First Amendment rights of dissenters in the context of mandatory union dues, bar association payments, state university student fees, and industry-association advertising. This article argues that the Court has failed in these cases to formulate a clear, universally applicable test for deciding when the right against compelled subsidization is violated, and that this failure results from the lack of a coherent account of what First Amendment interests are at stake in compelled subsidization. It also recommends an alternative account of wherein the right lies, which is the danger of covert state subsidization of one side or another in public debate on contentious political or ideological issues. From this account follows a new general test: The compelled subsidization of the speech of others violates the First Amendment just when the funds collected are used to promote the message of an identifiable viewpoint or interest in debate on a controversial political or ideological issue.

In addition to making specific recommendations on how Veneman should be decided, the article briefly describes the connections between the compelled subsidization doctrine and the Court's recent rulings on campaign finance regulation, particularly McConnell v. Federal Election Commission, 124 S. Ct. 619 (2003). Not only do both lines of cases raise the question of whether money is ever speech, but both also turn on the extent to which the First Amendment protects not only individual expressive rights, but the integrity of public political debate.

Keywords: First amendment, compelled speech, compelled subsidization, Veneman

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