|JOHANNS V. LIVESTOCK MARKETING ASSN. (03-1164) 544 U.S. 550 (2005)
335 F.3d 711, vacated and remanded.
[ Scalia ]
[ Thomas ]
[ Breyer ]
[ Ginsburg ]
[ Kennedy ]
[ Souter ]
ON WRITS OF CERTIORARI TO THE UNITED STATES
APPEALS FOR THE EIGHTH CIRCUIT
[May 23, 2005]
Justice Thomas, concurring.
I join the Courts opinion. I continue to believe that [a]ny regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny. United States v. United Foods, Inc., 533 U.S. 405, 419 (2001) (Thomas, J., concurring); see also Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457, 504506 (1997) (Thomas, J., dissenting). At the same time, I recognize that this principle must be qualified where the regulation compels the funding of speech that is the governments own. It cannot be that all taxpayers have a First Amendment objection to taxpayer-funded government speech, even if the funded speech is not germane to some broader regulatory program. See ante, at 78. Like the Court, I see no analytical distinction between pure government speech funded from general tax revenues and from speech funded from targeted exactions, ante, at 1012; the practice of using targeted taxes to fund government operations, such as excise taxes, dates from the founding, see The Federalist No. 12, p. 75 (J. Cooke ed. 1961).
Still, if the advertisements
associated their generic pro-beef message with either the
individual or organization respondents, then respondents would
have a valid as-applied First Amendment
challenge. The government may not, consistent with the First Amendment,
associate individuals or organizations involuntarily with
speech by attributing an unwanted message to them, whether or
not those individuals fund the speech, and whether or not the
message is under the governments control. This principle
follows not only from our cases establishing that the
government may not compel individuals to convey messages with
which they disagree, see, e.g., West Virginia Bd. of Ed.
v. Barnette, 319 U.S. 624,
633634 (1943); Wooley v. Maynard, 430 U.S. 705,
713717 (1977), but also from our expressive-association
cases, which prohibit the government from coercively
associating individuals or groups with unwanted messages, see,
e.g., Boy Scouts of America v. Dale, 530 U.S. 640, 653
(2000) (government cannot force [an] organization to send
a message with which it disagrees); Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U.S.
557, 576577 (1995). If West Virginia had compelled
Mr. Barnette to take out an advertisement reciting the Pledge
of Allegiance and purporting to be A Message from the
Barnette Children, for example, that would have been
compelled speech (if a less intrusive form of it), just like
the mandatory flag salute invalidated in Barnette. The
present record, however, does not show that the advertisements
objectively associate their message with any individual
respondent. Ante, at 1315, and n. 11.*
Moreover, these are not cases like Barnette; the government has not forced respondents to bear a government-imposed message. Cf. ante, at 13, n. 8; post, at 10, n. 9 (Souter, J., dissenting). The payment of taxes to the government for purposes of supporting government speech is not nearly as intrusive as being forced to utter what is not in [ones] mind, Barnette, supra, at 634, or to carry an unwanted message on ones property.
With these observations, I join the Courts opinion.
*. * I note that on remand respondents may be able to amend their complaint to assert an attribution claim. See Fed. Rule Civ. Proc. 15.