R.J. Reynolds v. Shewry ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
R.J. REYNOLDS TOBACCO COMPANY;  No. 03-16535
LORILLARD TOBACCO COMPANY; D.C. No.
R. J. REYNOLDS SMOKE SHOP, INC., CV-03-00659-LKK
Plaintiffs-Appellants,
ORDER DENYING
v. PETITIONS FOR
SANDRA SHEWRY, Director of the REHEARING EN
California Department of Health  BANC AND
Services; DILEEP G. BAL, Acting AMENDING
Chief of the Tobacco Control OPINION AND
Section of the California DISSENT AND
Department of Health Services; AMENDED
STATE OF CALIFORNIA, OPINION AND
Defendants-Appellees. AMENDED
 DISSENT
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior Judge, Presiding
Argued and Submitted
May 10, 2004—San Francisco, California
Filed September 28, 2004
Amended September 9, 2005
Before: Betty Binns Fletcher, Stephen Trott and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher;
Dissent by Judge Trott
12895
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12897
COUNSEL
H. Joseph Escher III, Howard Rice Nemerovski Canady Falk
& Rabkin, San Francisco, California, for plaintiffs-appellants
12898 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
R.J. Reynolds Tobacco Company and R.J. Reynolds Smoke
Shop, Inc., and Shannon L. Spangler and M. Kevin Underhill,
Shook, Hardy & Bacon, San Francisco, California, for
plaintiff-appellant Lorillard Tobacco Company.
Robert M. O’Neil and J. Joshua Wheeler, Charlottesville, Vir-
ginia, for amici curiae Thomas Jefferson Center for the Pro-
tection of Free Expression and the Media Institute, in support
of the plaintiffs-appellants.
Daniel J. Popeo and Richard A. Samp, Washington, D.C., for
amici curiae Washington Legal Foundation, in support of the
plaintiffs-appellants.
Karen Leaf, Deputy Attorney General, Sacramento, Califor-
nia, for the defendants-appellees.
Deborah B. Caplan and Robert S. McWhorter, Olson, Hagel
& Fishburn, LLP, Sacramento, California, for amici curiae
American Cancer Society, California Division, Inc., American
Heart Association, Western States Affiliates, and American
Lung Association of California, in support of the defendants-
appellees.
ORDER
In light of the Supreme Court’s decision in Johanns v. Live-
stock Marketing Ass’n, 125 S. Ct. 2055 (2005), the opinion
and dissent filed on September 28, 2004, and appearing at slip
op. 14,067, 384 F.3d 1126 (9th Cir. 2004), and slip op.
14,096, 384 F.3d 1126, 1142, respectively, are amended as
follows:
At slip op. 14,095, line 31, insert the following postscript
after “we affirm the judgment of the district court.” and
before “AFFIRMED.”:
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12899
POSTSCRIPT
After we filed our opinion, the Supreme Court decided
Johanns v. Livestock Marketing Ass’n, 125 S. Ct. 2055
(2005), holding that the Beef Promotion and Research Act of
1985 did not violate the First Amendment by imposing an
assessment on all sales and importation of cattle to fund beef
promotional campaigns with which many of the assessed par-
ties disagreed. The Court reasoned, as we do here, that the Act
was not susceptible to a First Amendment compelled-subsidy
challenge because the assessments funded government
speech. Although the Johanns opinion affirms our reasoning,
Judge Trott remains in dissent. He would now remand to the
district court pursuant to the Court’s statement in Johanns that
an as-applied challenge might lie “if it were established . . .
that individual beef advertisements were attributed to respon-
dents.” Id. at 2065.
Appellants have never, before us or the district court,
claimed that the ads at issue in this litigation could be or were
attributed to them; nor does the record reveal a material ques-
tion of fact on the issue. A reasonable viewer could not
believe that these anti-industry ads, expressly identified as
“Sponsored by the California Department of Health Services,”
were created, produced or approved by the appellants. The ad
singled out by the dissent as “put[ting] [words] directly into
the mouth of the tobacco industry,” for example, is unmistak-
able satire. In that ad, children play in a schoolyard while cig-
arettes fall like rain from the sky and a voiceover states “[w]e
have to sell cigarettes to your kids. We need half a million
new smokers a year . . . so we advertise near schools, at candy
counters.” No reasonable viewer could overlook the satirical
tenor of this ad and attribute the voiceover text to actual
tobacco executives.
We also find inapposite the dissent’s analogy to our recent
order in Charter v. United States Department of Agriculture,
412 F.3d 1017 (9th Cir. 2005). We remanded on the question
12900 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
of attribution in that case because the record indicated that the
National Cattlemen’s Beef Association “routinely, before
Congress, and in other public ways and in press announce-
ments, states that it is the trade organization and marketing
organization of America’s one million cattle producers.” Id.
at 1019. The record in this case contains no evidence that the
state ever attributed its ads to the appellants or that a reason-
able viewer could have done so; accordingly, we reject the
analogy to Charter and decline Judge Trott’s invitation to
remand.
At slip op. 14,108, line 8, insert the following postscript
after “is without merit.”:
POSTSCRIPT
Shortly after I circulated this dissent, the Supreme Court
decided Johanns v. Livestock Marketing Ass’n, 544 U.S.
______, 125 S. Ct. 2055 (2005). For the majority of the Court,
Justice Scalia wrote:
The compelled-subsidy analysis is altogether unaf-
fected by whether the funds for the promotions are
raised by general taxes or through a targeted assess-
ment. Citizens may challenge compelled support of
private speech, but have no First Amendment right
not to fund government speech. And that is no less
true when the funding is achieved through targeted
assessments devoted exclusively to the program to
which the assessed citizens object. The First Amend-
ment does not confer a right to pay one’s taxes into
the general fund, because the injury of compelled
funding (as opposed to the injury of compelled
speech) does not stem from the Government’s mode
of accounting.
Id. at ______ (second emphasis added) (citations omitted).
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12901
Not surprisingly, California’s Attorney General suggests
that this ruling “eliminates all possible doubt about the cor-
rectness” of the majority’s decision. I do not agree.
The Johanns Court suggests, while “express[ing] no view
on the point,” that if it were to be shown that the challenged
speech would “convince a reasonable factfinder” that “all . . .
producers[ ] would be tarred with the content of each trade-
marked ad,” an “as applied” First Amendment challenge
might lie. Id. at __________. (emphasis added).
Writing separately, Justice Thomas advanced the same sug-
gestion:
Still, if the advertisements associated their generic
pro-beef message with either the individual or orga-
nization 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 government’s control. This principle fol-
lows not only from our cases establishing that the
government may not compel individuals to convey
messages with which they disagree, . . . but also
from our expressive-associate cases, which prohibit
the government from coercively associating individ-
uals or groups with unwanted messages.
Id. at ______. (emphasis added) (citations omitted).
Here, one challenged government television ad —
described by my colleagues as “particularly striking” — uses
a voice-over technique to speak to the public on behalf of the
tobacco industry. The words put directly into the mouths of
the tobacco industry disparagingly associate the appellants
12902 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
and the industry with the unwanted message about which they
now complain:
We have to sell cigarettes to your kids. We need half
a million new smokers a year just to stay in business
so we advertise near schools, at candy counters. We
lower our prices. We have to. It’s nothing personal.
You understand.
The “we” is the appellants.
If this language, albeit couched in a literary device, does
not “tar all in the industry” required to pay for the ad, and if
this language does not “coercively associate” and intention-
ally smear the appellants — all of them — with an “unwanted
message” to which they object, it is hard to know what does.
I respectfully disagree with the district court’s preemption of
this issue as a matter of law. The facts are such as to survive
summary judgment and should be submitted — as suggested
by the Supreme Court — to a factfinder.
At the very least, we should take our lead from our recent
decision in Charter v. United States Department of Agricul-
ture, _____ F.3d _____, _____ (9th Cir. 2005), recognizing
the difference between that case and Johanns with respect to
a possible attribution/association “as applied” challenge:
In light of the Supreme Court’s recognition [in
Johanns] (without expressing a view on the issue)
that an attribution claim might form the basis for an
as-applied First Amendment challenge to the Act,
the district court’s decision must be vacated and the
case remanded for further proceedings to determine,
among other things, whether speech was attributed to
appellants and, if so, whether such attribution can
and does support a claim that the Act is unconstitu-
tional as applied. Id.; see also id. at *9 n.* (Thomas,
J., concurring) (noting that, pursuant to Federal Rule
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12903
of Civil Procedure 15, “on remand respondents may
be able to amend their complaint to assert an attribu-
tion claim”).
There is a world of difference between what was at issue
and at stake in Johanns and what is on our docket here. In
Johanns, the question was whether, consistent with the First
Amendment, the government could compel beef producers to
fund by way of mandatory assessments a generic advertising
program promoting the sale of beef. 7 U.S.C. § 2901(b). In
our case, however, the purpose of the coerced speech is delib-
erately destructive of those forced to pay for it — not so in
Johanns. Does this difference matter here? I believe it does.
The difference is not just one of degree, but of material kind.
It is one thing to promote the sale of an agricultural product;
it is altogether another to attempt to destroy an entire legal
industry.
I see this case as distinguishable from Johanns, and I con-
tinue respectfully to dissent. In my view, we should remand
to the district court for reconsideration on the “as applied”
issue as newly articulated in Johanns itself.
With these amendments, the panel judges have voted to
deny appellants’ petition for panel rehearing. Judge Fisher has
voted to deny the petition for rehearing en banc, and Judges
Fletcher and Trott so recommend.
The panel judges have voted to deny the petition for panel
rehearing of amicus curiae Washington Legal Foundation.
Judge Fisher has voted to deny the petition for rehearing en
banc, and Judges Fletcher and Trott so recommend.
The full court has been advised of the petitions for rehear-
ing en banc and no judge of the court has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
Appellants’ petition for panel rehearing and petition for
rehearing en banc, filed October 19, 2004, is DENIED.
12904 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
The petition for panel rehearing and rehearing en banc of
amicus curiae Washington Legal Foundation, filed October
27, 2004, is DENIED.
No further petitions for rehearing or petitions for rehearing
en banc will be considered.
OPINION
FISHER, Circuit Judge:
We deal here with a novel First Amendment claim. The
appellants, three tobacco companies, claim that California
violated their First Amendment rights by imposing a surtax on
cigarettes and then using some of the proceeds of that surtax
to pay for advertisements that criticize the tobacco industry.
The tobacco companies argue that this is a case of compelled
subsidization of speech prohibited by the First Amendment,
analogous to United States v. United Foods, Inc., 533 U.S.
405 (2001). California counters that the advertisements are
government speech entirely immune from First Amendment
attack.
The tobacco companies concede that (1) the imposition of
the tax itself is not unconstitutional and (2) the message pro-
duced by the government’s advertisements creates no First
Amendment problem apart from its method of funding.
Rather, they argue for an independent First Amendment viola-
tion based on the close nexus between the government adver-
tising and the excise tax that funds it. We reject this argument
as unsupported by the Constitution and Supreme Court prece-
dent, and as so unlimited in principle as to threaten a wide
range of legitimate government activity. We also reject the
tobacco companies’ claim that the advertisements violated
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12905
their rights under the Seventh Amendment or the Due Process
Clause. We thus affirm the district court.1
FACTUAL AND PROCEDURAL BACKGROUND2
In 1988, California voters approved Proposition 99, a state-
wide ballot initiative also known as the “Tobacco Tax and
Health Protection Act of 1988.” Cal. Rev. & Tax Code
§§ 30121-30130. The Act imposes the Cigarette and Tobacco
Products Surtax (“the surtax”), a 25-cent per-pack surtax on
all wholesale cigarette sales in California.
The revenue generated by the surtax is placed in the “Ciga-
rette and Tobacco Products Surtax Fund.” Twenty percent of
taxes in the surtax fund is allocated to a “Health Education
Account,” funds from which are only “available for appropri-
ation for programs for the prevention and reduction of
tobacco use, primarily among children, through school and
community health education programs.” Id., § 30122(b)(1).
In order to implement Proposition 99, the California Legis-
lature directed the California Department of Health Services
(“DHS”) to establish “a program on tobacco use and health to
reduce tobacco use in California by conducting health educa-
tion interventions and behavior change programs at the state
level, in the community, and other nonschool settings.” Cal.
Health & Safety Code § 104375(a). As part of this program,
called the “Tobacco Control Program,” the DHS is required
to develop a media campaign designed to raise public aware-
ness of the deleterious effects of smoking and to effect a
reduction in tobacco use. Id., §§ 104375(b), (c), (e)(1) & (j);
1
We note that the district court issued a particularly thoughtful, thor-
ough and comprehensive opinion in this case, upon which we have sub-
stantially relied even though we do not adopt all of its reasoning.
2
Because this case comes before us on the state’s motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), we accept as true all alle-
gations in the tobacco companies’ complaint.
12906 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
104385(a); 104400. The Tobacco Control Program is funded
entirely with money from the Health Education Account —
and thus, ultimately, exclusively from the proceeds of the sur-
tax.
This case concerns certain advertisements the DHS pro-
duced as part of its Tobacco Control Program. According to
the tobacco companies, the DHS concluded soon after the
establishment of the Tobacco Control Program that a media
campaign focused solely on presenting the health risks of
tobacco use would be of limited utility in reducing the inci-
dence of smoking in California, because people tend to “tune
out” advertising that simply explains the health risks involved
with tobacco use. Thus, the DHS concluded that, in order to
carry out its mandate to encourage Californians to modify and
reduce their use of tobacco, it would be necessary to launch
a campaign to “denormalize” smoking, by creating a climate
in which smoking would seem less desirable and less socially
acceptable.
One method used by the DHS in this campaign has been to
portray the tobacco industry itself as deceptive and as an
enemy of the public health, or, in the companies’ words, to
attack not “the desirability of a product but . . . the moral
character of [the] industry, accusing it of hypocrisy, cynicism
and duplicity.” The district court described these advertise-
ments as follows:
A recent round of television commercials features an
actor playing a public relations executive for the fic-
tional cigarette brand “Hampton,” detailing for view-
ers his unseemly methods for getting people to start
smoking. The ads end with the tagline, “Do You
Smell Smoke?,” implicitly referencing both cigarette
smoke and a smoke-and-mirrors marketing strategy.
Another ad portrays tobacco executives discussing
how to replace a customer base that is dying at the
rate of 1,100 users a day. Some of the ads end with
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12907
images of mock warning labels such as: “WARN-
ING: The tobacco industry is not your friend.”; or
“WARNING: Some people will say anything to sell
cigarettes.” Several spots suggest that tobacco com-
panies aggressively market to children. In one partic-
ularly striking television ad entitled “Rain,” children
in a schoolyard are shown looking up while ciga-
rettes rain down on them from the sky. A voice-over
states “We have to sell cigarettes to your kids. We
need half a million new smokers a year just to stay
in business. So we advertise near schools, at candy
counters. We lower our prices. We have to. It’s noth-
ing personal. You understand.” At the conclusion,
the narrator says, “The tobacco industry: how low
will they go to make a profit?”
R.J. Reynolds v. Bonta, 272 F. Supp. 2d 1085, 1089 (2003).
The district court also noted that each of the challenged adver-
tisements is “identified as ‘Sponsored by the California
Department of Health Services.’ ” Id. The tobacco companies
do not claim that these advertisements contain any affirma-
tively false statements.
That California itself is interested in the outcome of the
campaign is made clear by the Legislature’s finding that
“[s]moking is the single most important source of preventable
disease and premature death in California” and that prevent-
ing tobacco use by children and young adults is the “highest
priority in disease prevention for the state of California.” Cal.
Health & Safety Code § 104350(a). The district court
explained that “there is substantial evidence, including pub-
lished medical studies, indicating that the Proposition 99 pro-
grams, and the media campaign in particular, have been
successful in achieving their goals.” Bonta, 272 F. Supp. 2d
at 1088 n.5 (noting the following articles describing the suc-
cess of California’s campaign in reducing the incidence of
smoking: C. Fichtenberg and S. Glantz, Association of the
California Tobacco Control Program with Declines in Ciga-
12908 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
rette Consumption and Mortality from Heart Disease, NEW
ENG. J. MED. 343:24, 1772-1777 (2000); M. Siegel, Mass
Media Antismoking Campaigns: A Powerful Tool for Health
Promotion, ANNALS OF INTERNAL MED., 129:2, 128-132
(1998); J.P. Pierce, et al., Has the California Tobacco Control
Program Reduced Smoking?, JAMA 280:10, 893-899
(1998)).
The appellant tobacco companies here are R.J. Reynolds
Tobacco Company; its wholly owned subsidiary R.J. Reyn-
olds Smoke Shop, Inc.; and Lorillard Tobacco Company. R.J.
Reynolds pays the surtax through sales from its smoke shop
subsidiary; Lorillard pays the surtax in connection with cer-
tain of its research and marketing activities in California.
These companies are not the most important sources of reve-
nue for the surtax, however. Because the surtax is imposed on
distributors of cigarettes, most surtax payments are made not
by cigarette manufacturers themselves, but by cigarette
wholesalers. Nonetheless, because the tobacco companies sell
or provide small quantities of cigarettes directly to smokers in
California, they have paid and will in the future be required
to pay the surtax. The tobacco companies here paid approxi-
mately $14,000 in surtax funds, thus contributing approxi-
mately $2,800 of the $25 million spent on the challenged ads.
Bonta, 272 F. Supp. 2d at 1090.
The tobacco companies brought five causes of action
against the state defendants (“the state” or “California”) to the
district court, seeking both injunctive and declaratory relief.
They argued that the use of the surtax to fund the “anti-
industry” advertisements violated the First Amendment, that
the advertisements improperly stigmatized them in violation
of the Fourteenth Amendment, that the advertisements inter-
fered with their right to a jury trial under the Seventh and
Fourteenth Amendments and that the advertisements violated
the California Constitution.3 The state moved to dismiss under
3
This state law claim is not before us.
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12909
Federal Rule of Civil Procedure 12(b)(6). The district court
dismissed with prejudice all of the companies’ federal consti-
tutional claims, and the companies timely appealed.
DISCUSSION
I. First Amendment
We begin by addressing the scope of the First Amendment
issue. The tobacco companies do not raise a First Amendment
challenge to California’s right to sponsor “anti-industry”
advertisements. As their brief to this court puts it, “if the
broadcasts were funded by general taxes rather than by a tax
imposed exclusively on the tobacco industry, the anti-industry
ads would raise no First Amendment issue.” Nor do the com-
panies argue that the surtax itself has interfered with their con-
stitutional rights. See, e.g., Arkansas Writers’ Project, Inc. v.
Ragland, 481 U.S. 221, 227-29 (1987) (invalidating a statute
that granted a tax exemption for religious, professional, trade
and sports journals that did not apply to other journals); Min-
neapolis Star & Tribune v. Minn. Comm’r of Revenue, 460
U.S. 575, 591-93 (1983) (invalidating a special tax on the
press limited to only a few newspapers). Their claim is spe-
cific: they argue that using the money raised from an excise
tax that targets the tobacco industry to pay for advertising that
denigrates the industry violates their constitutional rights.
Before discussing the precedent upon which the tobacco
companies rely, we note that this is a novel argument. At
issue is neither the government’s power to speak nor the gov-
ernment’s power to tax. Chief Justice John Marshall famously
stated that “the power to tax involves the power to destroy.”
McCullough v. Maryland, 17 U.S. (4 Wheat.) 316, 431
(1819). According to the tobacco companies, however, this
case involves neither an invalid exercise of the government’s
power to tax nor a claim that they have been destroyed by the
government’s speech. Rather, the companies claim a constitu-
tional violation in the link between the excise tax and the gov-
12910 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
ernment speech to which they object. By suggesting that
certain taxpayers should be able to object to government
speech whenever an excise tax is used to fund a message that
particularly affects the group that pays the tax, the tobacco
companies’ argument would implicate a range of other pro-
grams. As we shall explain, we reject the “nexus” argument
as applied to excise taxation. A mere link between an excise
tax and a government-sponsored advertising campaign, absent
a claim that either the tax or the advertising is unconstitu-
tional, does not violate the First Amendment.
A. United Foods, the Compelled Speech Doctrine and
Taxation
The tobacco companies rely in large part upon one case:
United States v. United Foods, Inc., 533 U.S. 405 (2001).4 We
do not agree that United Foods controls. Rather, we conclude
that the compelled speech cases, of which United Foods is
one, do not apply where an excise tax is used to produce a
message that indisputably comes from the government itself.
In United Foods, the Court considered a federal program
created by the Mushroom Promotion, Research, and Con-
sumer Information Act, 7 U.S.C. § 6101 et seq. As the Court
described the program,
The Act authorizes the Secretary of Agriculture to
establish a Mushroom Council to pursue the statute’s
goals. Mushroom producers and importers, as
defined by the statute, submit nominations from
among their group to the Secretary, who then desig-
4
The Supreme Court has recently granted certiorari in Livestock Mktg.
Ass’n v. USDA, 335 F.3d 711 (8th Cir. 2003), cert. granted sub nom.
Veneman v. Livestock Mktg. Ass’n, 124 S. Ct. 2389, 72 U.S.L.W. 3721
(U.S. May 24, 2004) (No. 03-1164) and Nebraska Cattlemen, Inc. v. Live-
stock Mktg. Ass’n, 124 S. Ct. 2390, 72 USLW 3539 (U.S. May 24, 2004),
involving the interaction between the compelled speech and government
speech doctrines.
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12911
nates the Council membership. To fund its programs,
the Act allows the Council to impose mandatory
assessments upon handlers of fresh mushrooms in an
amount not to exceed one cent per pound of mush-
rooms produced or imported. The assessments can
be used for “projects of mushroom promotion,
research, consumer information, and industry infor-
mation.” It is undisputed, though, that most moneys
raised by the assessments are spent for generic
advertising to promote mushroom sales.
533 U.S. at 408 (citations omitted). The petitioner in that case
was a mushroom producer that refused to pay its mandatory
assessment. The Supreme Court described the question pre-
sented as “whether the government may underwrite and spon-
sor speech with a certain viewpoint using special subsidies
exacted from a designated class of persons, some of whom
object to the idea being advanced.” 533 U.S. at 410. Under
the facts of United Foods, the Supreme Court held that the
answer to that question was “no.” The Court held that by
requiring the mushroom producer to contribute to generic
advertisements for mushroom sales to which it objected, the
government had put “First Amendment values . . . at serious
risk” by “compell[ing] a discrete group of citizens [ ] to pay
special subsidies for speech on the side that [the government]
favors.” Id. at 411.
Read broadly, and taken in isolation, this language might
plausibly suggest that the tobacco companies have the right to
object to the advertisements at issue here because they have
paid “special subsidies” for the advertisements in the form of
a tax that disproportionately affects them. Yet United Foods
also makes clear that not every case in which the government
mandates support for speech from a particular group necessar-
ily creates a First Amendment violation. Most importantly,
the Court specifically declined to address whether the same
First Amendment analysis would apply to cases in which the
speech produced was “government speech” that derived from
12912 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
the state itself and not the Mushroom Council. See id. at 416
(“The Government argues the advertising here is government
speech, and so immune from the scrutiny we would otherwise
apply. As the government admits . . . however, this argument
was not raised or addressed in the Court of Appeals.”) (cita-
tions omitted). United Foods also carefully relied on the
teaching of previous compelled speech cases to reach its hold-
ing about the contributions to the Mushroom Council. Id. In
order to understand the impact of United Foods, therefore, we
examine the origins and the purpose of the compelled speech
doctrine.
[1] It has long been established that the First Amendment
prohibits the government from compelling citizens to express
beliefs that they do not hold. “[T]he right of freedom of
thought protected by the First Amendment against state action
includes both the right to speak freely and the right to refrain
from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714
(1977) (forbidding a state government from compelling
motorists to display the message “Live Free or Die” on their
license plates); see also West Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624 (1943) (preventing a state government
from forcing children to salute the American flag when the
children’s religious beliefs forbade such behavior). These
cases are not directly applicable here because there is no
claim that the tobacco companies have been forced into
expressing any position.
The Court extended this fundamental principle of freedom
of expression to situations “involving expression by groups
which include persons who object to the speech, but who,
nevertheless, must remain members of the group by law or
necessity.” United Foods, 533 U.S. at 413. The first such
case, Abood v. Detroit Board of Education, 431 U.S. 209
(1977), involved a challenge by public school teachers to a
collective bargaining agreement. The agreement required non-
union members who were represented by the teachers union
to pay a service fee equal to union dues. Some portions of this
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12913
service fee were then used to pay “for political and ideologi-
cal purposes unrelated to collective bargaining.” Id. at 232.
The Court held that this program violated the principle that
“the freedom of an individual to associate for the purpose of
advancing beliefs and ideas” is protected by the First Amend-
ment. Id. at 233. Although the union could compel objectors
to provide funds for purposes that were “germane” to “its
duties as [a] collective-bargaining representative,” it would
violate basic principles of freedom of association to compel
the financial support of objectors for ideological purposes
unrelated to collective bargaining. Id. at 235. The Court revis-
ited similar issues in Keller v. State Bar of California, 496
U.S. 1 (1990), in which it invalidated a program in which
mandatory dues to the California State Bar were used, over
member’s objections, to advance political and ideological
causes to which some bar members did not subscribe. The
Court held that the state bar could use compulsory member-
ship dues to finance activities “germane” to the purposes for
which the “compelled association and integrated bar [were]
justified . . . the State’s interest in regulating the legal profes-
sion and improving the quality of legal services.” Id. at 13. It
could not, however, order compulsory dues to be used to
“fund activities of an ideological nature which fell outside of
those areas of activity.” Id. at 14.
Abood and Keller set forth the principles that were later
applied — with differing results — in Glickman v. Wileman
Bros. & Elliot, 521 U.S. 457 (1997), and in United Foods to
programs in which the government compels agricultural pro-
ducers to contribute to joint marketing programs. In Glick-
man, the Court rejected a First Amendment challenge to a
regulatory program that required tree fruit growers to fund
marketing campaigns as part of a broader regulation of the
industry. The crucial distinction between Glickman and
United Foods is that the mandatory assessment in Glickman
was “ancillary to a more comprehensive program restricting
market autonomy.” United Foods, 533 U.S. at 411. We have
explained the distinction between the two cases as follows: “If
12914 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
the generic advertising assessment is part of a ‘comprehensive
program’ that ‘displace[s] many aspects of independent busi-
ness activity,’ exempts the firms within its scope from the
antitrust laws, and makes them ‘part of a broader collective
enterprise,’ the assessment does not violate the First Amend-
ment.” Delano Farms v. Cal. Table Grape Comm’n, 318 F.3d
895, 898-99 (9th Cir. 2003). The program in United Foods, on
the other hand, raised a constitutional problem because “[i]f
the program is, in the main, simply an assessment of indepen-
dent and competing firms to pay for generic advertising, it
does violate the First Amendment.” Id. at 899. The United
Foods rule protects against “making one entrepreneur finance
advertising for the benefit of his competitors” when there is
no broader regulatory interest at stake. 533 U.S. at 418 (Ste-
vens, J., concurring).
Seen in this perspective, United Foods is a logical exten-
sion of a long line of cases that have protected both freedom
of expression and freedom of association. See United States
v. Frame, 885 F.2d 1119, 1132 (3d Cir. 1989) (describing the
“underlying rationale of the right to be free from compelled
speech or association” as guiding the Abood line of cases).
Under Wooley and Barnette, the First Amendment does not
permit the government to force citizens to express beliefs that
are not their own. As an extension of this principle, under
Abood, Keller and United Foods, the First Amendment also
does not permit the government to force citizens to contribute
to a private association when the funds are used primarily to
support expression from a certain viewpoint.5 The First
5
Read in this context, it is clear that United Foods relied on harm to
expressive and associational freedoms in order to support its conclusion.
See 533 U.S. at 413 (“It is true that the party who protests the assessment
here is required simply to support speech by others, not to utter the speech
itself. We conclude, however, that the mandated support is contrary to the
First Amendment principles set forth in cases involving expression by
groups which include persons who object to the speech, but who, never-
theless, must remain members of the group by law or necessity.”) (empha-
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12915
Amendment may, however, under Abood and Glickman, per-
mit the government to compel contributions to an associa-
tion’s expression when that expression is germane to a
broader regulatory scheme that compelled the association in
the first place.6
[2] Nothing in United Foods suggests that the compelled
speech doctrine applies to situations where the government
imposes an excise tax on private citizens and then uses the
money to speak in the name of the government itself. No
court has held otherwise. See NAACP v. Hunt, 891 F.2d 1555,
1566 (11th Cir. 1990) (“Abood has never been applied to the
government, however; if it were, taxation would become
impossible.”). An otherwise valid tax for an otherwise valid
purpose ordinarily must bind even those who object to the
government’s objective. In Board of Regents of the University
of Wisconsin System v. Southworth, 529 U.S. 217, 229 (2000),
the Court explained that:
It is inevitable that government will adopt and pur-
sue programs and policies within its constitutional
sis added). The Court emphasized that contributions to the Mushroom
Council forced certain private parties to pay for the speech of other private
parties — a violation of both expressive and associative freedom. Id. at
416 (noting “the mandatory assessments imposed to require one group of
private persons to pay for speech by others”).
6
Because United Foods is easily reconciled with previous Supreme
Court precedent, we do not see a basis in United Foods for our dissenting
colleague’s view that, in distinguishing Glickman, the Court intended to
untether the compelled speech doctrine from its expressive and associa-
tional moorings and create a new constitutional right to challenge all
forms of targeted taxation. Nor does United Foods suggest that we should
apply principles governing government suppression of private commercial
speech, see Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447
U.S. 557, 564 (1980), to this case — in which the government has neither
suppressed nor compelled speech, but has merely used an excise tax to
fund a governmental message. Surely if the Court in United Foods had
intended to create such broadly sweeping principles, it would have said so.
12916 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
powers but which nevertheless are contrary to the
profound beliefs and sincere convictions of some of
its citizens. The government, as a general rule, may
support valid programs and policies by taxes or other
exactions binding on protesting parties. Within this
broader principle it seems inevitable that funds
raised by the government will be spent for speech
and other expression to advocate and defend its own
policies.
[3] Put simply, the rationale of the Abood and Keller line
of cases — protecting freedom of expression and association
— does not apply to government speech when the govern-
ment acts as both a taxing authority and as a speaker. Paying
a tax, even an excise tax, does not create a compelled form of
association. When the government acts as a speaker it may
espouse views that directly contradict those of taxpayers with-
out interfering with taxpayers’ freedom of expression. In a
democracy based on majority rule, such a conclusion is ines-
capable. “Government officials are expected as a part of the
democratic process to represent and to espouse the views of
a majority of their constituents. . . . If every citizen were to
have a right to insist that no one paid by public funds express
a view with which he disagreed, debate over issues of great
concern to the public would be limited to those in the private
sector, and the process of government as we know it radically
transformed.” Keller, 496 U.S. at 12-13. As we have said
before, “[s]imply because the government opens its mouth to
speak does not give every outside individual or group a First
Amendment right to play ventriloquist.” Downs v. Los Ange-
les Unified School Dist., 228 F.3d 1003, 1013 (9th Cir. 2000).
B. The California Regulation and Compelled Speech
The companies claim that their situation is unique because
the DHS pays for its anti-industry ads exclusively from reve-
nues raised ultimately through the surtax, which in turn is
derived exclusively from sales of cigarette packages. They
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12917
argue that imposing an excise tax on a particular industry and
then earmarking the use of the tax funds for advertisements
that criticize that industry suffices to make the companies
similarly situated to the plaintiffs in the compelled speech
cases.
There is a fundamental difference between the excise tax/
spending regime at issue here and the compelled contributions
to private associations that were at issue in Abood, Keller and
United Foods. When a union, a state bar association or even
a mushroom growers’ association speaks, it represents only
the interests of that particular entity. When California uses
funds from the tobacco surtax to produce advertisements, it
does so in the name of all of California’s citizens. As the dis-
trict court observed, “[The tobacco companies] are not seek-
ing to prevent coerced participation in private association;
rather, they are attempting to exercise a taxpayer’s veto over
speech by the government itself.” Bonta, 272 F. Supp. 2d at
1100. That California has chosen to fund a valid public health
message through a targeted excise tax does not mean that it
is no longer speaking as the State of California.
The key issue is not the targeted nature of the tax but the
degree of governmental control over the message. See Live-
stock Mktg. Ass’n v. USDA, 335 F.3d 711, 723 (8th Cir. 2003)
(noting that “the greater the government’s responsibility for,
and control over, the speech in question, the greater the gov-
ernment’s interest therein”). In the compelled speech cases
cited by the companies, control over the content of the mes-
sage produced had been delegated to an association “represen-
tative only of one segment of the population, with certain
common interests.” Abood, 431 U.S. at 259 n.13 (Powell, J.,
concurring). The problem with the government forcing private
citizens to contribute funds in those cases was that the funds
were being used to support the speech of such segmented,
specific interests. Here there can be no doubt that the tobacco
companies’ funds are being used to speak on behalf of the
people of California as a whole. Any coercion — that is, the
12918 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
collection of funds used to produce a particular message — is
performed not in the name of a segment of the public, but of
the state.
Indeed, a wide range of First Amendment cases differenti-
ate between the government controlling the expenditure of its
own revenue and the government sharing control with private
or quasi-private parties. See, e.g., Rust v. Sullivan, 500 U.S.
173, 197 (1991) (distinguishing situations where the govern-
ment imposes a direct constraint on the use of its own money
from situations “in which the Government has placed a condi-
tion on the recipient of the subsidy rather than on a particular
program or service, thus effectively prohibiting the recipient
from engaging in the protected conduct outside the scope of
the federally funded program”); FCC v. League of Women
Voters of Cal., 468 U.S. 364, 399-400 (1984) (same); Widmar
v. Vincent, 454 U.S. 263, 268 (1981) (establishing limited
public forum doctrine and explaining that the First Amend-
ment “forbids a State to enforce certain exclusions from a
forum generally open to the public, even if it was not required
to create the forum in the first place”).
This is not to say that a state may avoid the limits of the
First Amendment simply by labeling a compelled contribution
a contribution to the government’s own speech. As the
Supreme Court has noted, a state law “determination that [an
entity] is a ‘government agency,’ and therefore entitled to the
treatment accorded a governor, a mayor, or a state tax com-
mission, for instance, is not binding on us when such a deter-
mination is essential to the decision of a federal question.”
Keller, 496 U.S. at 11. The analysis may differ when the gov-
ernment nominally controls the production of advertisements,
but as a practical matter has delegated control over the speech
to a particular group that represents only one segment of the
population. See Frame, 885 F.2d at 1133-34 (describing com-
pelled contributions to a nominally government controlled
“Cattleman’s Board,” where the persons with actual control
over the disbursement of funds were private individuals
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12919
“whose primary or overriding purpose is to promote the wel-
fare of the cattle producers” (quoting 7 U.S.C. § 2905(b)(4)));
see also Mich. Pork Producers Ass’n v. Veneman, 348 F.3d
157, 161 (6th Cir. 2003) (“We conclude that the pork indus-
try’s extensive control over the Pork Act’s promotional activi-
ties prevents their attribution to the government.”).7 But that
situation is not present here. As the district court put it,
“[w]hile in some cases the distinction between government
speech and compelled allegiance may present ‘difficult
issues,’ the analysis here is straightforward.” Bonta, 272 F.
Supp. 2d at 1100 (quoting United Foods, 533 U.S. at 417).
[4] In their complaint, the tobacco companies themselves
allege that the director of the DHS, a government agency, is
“ultimately responsible for the advertising challenged in this
action.” The DHS is acting expressly according to California
law, which directs the DHS to implement a media campaign
emphasizing “both preventing the initiation of tobacco use
and quitting smoking . . . based on professional market
research and surveys necessary to determine the most effec-
tive method of diminishing tobacco use among specified tar-
get populations.” Cal. Health & Safety Code § 104375(e)(1).
7
Thus, the dissent’s claim that there is an “untenable distinction”
between situations in which the government speaks for itself and situations
where the government has effectively licensed control over speech to a
private organization is misplaced. In similar cases, courts can (and often
have) examined whether or not the government has delegated authority to
a private body, such that a compelled subsidy is being used to support a
private interest instead of a governmental one. See, e.g., Cochran v. Vene-
man, 359 F.3d 263, 278 (3d. Cir. 2003) (finding First Amendment con-
cerns where an agricultural act “seem[ed] to really be special interest
legislation on behalf of the industry’s interest more . . . than the govern-
ment’s”). Indeed, this was what was at issue in the language the dissent
quotes from the Third Circuit’s decision in Frame; that court identified an
improper “coerced nexus between the individual and . . . specific expres-
sive activity” in a case where “the Cattlemen’s Board seems to be an
entity ‘representative of one segment of the population, with certain com-
mon interests.’ ” Frame, 885 F.2d at 1132, 1133 (citing Abood, 431 U.S.
at 259 n.13 (Powell, J., concurring)).
12920 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
The advertisements are also clearly identified as coming from
the government itself and not from the tobacco companies, the
tobacco industry or any other private party or group. Cf.
Frame, 885 F.2d at 1133 n.11 (describing advertisements
“without mention of the Secretary or the Department of Agri-
culture, thus failing to communicate that the advertisements
are funded through a government program”). As noted above,
all the contested advertisements expressly state that they are
sponsored by the DHS. Plainly, in imposing the surtax and in
producing the contested advertisements, California is acting
on behalf of all of its citizens.8
8
As a point of comparison, it is worth citing those aspects of the organi-
zation of the State Bar of California upon which the Supreme Court relied
to hold that its speech should not be classified as coming from the govern-
ment itself:
The State Bar of California is a good deal different from most
other entities that would be regarded in common parlance as
“governmental agencies.” Its principal funding comes, not from
appropriations made to it by the legislature, but from dues levied
on its members by the board of governors. Only lawyers admitted
to practice in the State of California are members of the State
Bar, and all 122,000 lawyers admitted to practice in the State
must be members. [The State Bar] undoubtedly performs impor-
tant and valuable services for the State by way of governance of
the profession, but those services are essentially advisory in
nature. The State Bar does not admit anyone to the practice of
law, it does not finally disbar or suspend anyone, and it does not
ultimately establish ethical codes of conduct. All of those func-
tions are reserved by California law to the State Supreme Court.
. . . The State Bar of California was created, not to participate in
the general government of the State, but to provide specialized
professional advice to those with the ultimate responsibility of
governing the legal profession. Its members and officers are such
not because they are citizens or voters, but because they are law-
yers. We think that these differences between the State Bar, on
the one hand, and traditional government agencies and officials,
on the other hand, render unavailing [the State Bar’s] argument
that it is not subject to the same constitutional rule with respect
to the use of compulsory dues as are labor unions representing
public and private employees.
Keller, 496 U.S. at 11, 13 (footnotes and citations omitted). Here, by con-
trast, the contested advertisements are unquestionably part of the “general
government of the state.”
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12921
C. Excise Taxation, Government Speech and the First
Amendment
In short, by being required to contribute to the DHS’s
advertisements, the tobacco companies have not been
deprived of their freedom of expression or their freedom of
association, which are the harms that the compelled speech
cases protect against. The tobacco companies’ claim goes to
another kind of harm — the harm caused by paying an excise
tax used to fund government speech of which they under-
standably disapprove.
The tobacco companies concede that the state would not
have violated the First Amendment had it imposed the same
surtax on cigarette packs, commingled the proceeds of the
surtax with the state’s general fund and then used the general
fund to produce precisely the same advertisements. Thus, the
tobacco companies object only to the nexus between the
excise tax and the advertisements. Federal courts have tradi-
tionally given great deference to a state’s control over its
financial affairs when faced with constitutional challenges.
See, e.g., San Antonio Independent Sch. Dist. v. Rodriguez,
411 U.S. 1, 40 (1973) (noting, in a challenge under the Equal
Protection Clause, that “[t]his Court has often admonished
against such interferences with the State’s fiscal policies”);
see also Welsh v. Likins, 550 F.2d 1122, 1131-32 (8th Cir.
1977) (“No right of a state is entitled to greater respect by the
federal courts than the state’s right to determine how revenues
should be raised and how and for what purposes public funds
should be expended.”). The Supreme Court has repeatedly
emphasized that deference not warranted in other regulatory
areas is warranted when it comes to the tax system. Regan v.
Taxation With Representation of Wash., 461 U.S. 540, 547-
548 (1983) (“Legislatures have especially broad latitude in
creating classifications and distinctions in tax statutes. . . .
‘[I]n taxation, even more than in other fields, legislatures pos-
sess the greatest freedom in classification.’ ” (quoting Mad-
den v. Kentucky, 309 U.S. 83, 87-88 (1940))). The tobacco
12922 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
companies can point to no case in which, when the state has
the right both to impose the relevant tax and to promulgate the
relevant speech, the First Amendment mandates that a state
arrange its budgetary categories so as to make the link
between a tax and speech less direct.
The implication of the tobacco companies’ argument is that
industries subject to an excise tax are entitled to a special veto
over government speech funded by the tax. Such a right, in
turn, would suggest that excise taxes, especially those that
earmark funds for particular purposes, are so unusual or
improper that they should allow payors of those taxes to avoid
the political process and use the courts to control government
speech. This suggestion fundamentally misunderstands the
history of taxation in the United States, because excise taxa-
tion targeted at particular goods or industries is not only com-
mon but predates the income tax. See U.S. CONST. art. I, § 8,
cl. 1 (“The Congress shall have Power To lay and collect
Taxes, Duties, Imposts and Excises”) (emphasis added); THE
FEDERALIST NO. 12 (Alexander Hamilton) (“[I]n America, far
the greatest part of the national revenue is derived from taxes
of the indirect kind, from imposts, and from excises.”). One
of the earliest Supreme Court cases upheld a uniform national
excise tax on carriages. Hylton v. United States, 3 U.S. (3
Dall.) 171 (1796). And excise taxes are hardly unusual today.
According to the Office of Management and Budget, the fed-
eral government collected approximately 67 billion dollars in
excise taxes in 2002. See Office of Management and Budget,
Budget for Fiscal Year 2004, Summary Tables, at http://
www.whitehouse.gov/omb/budget/fy2004/summarytables.html
(last visited Aug. 23, 2004).
[5] Nor is it a novel feature of American government to
levy an excise tax on a particular industry and then use the
proceeds of that tax in ways that regulate that industry. The
nineteenth century Supreme Court upheld (albeit not against
a First Amendment challenge) a federal tax statute that
required distillers of alcohol to both pay an excise tax and pay
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12923
the salaries of federal officers supervising the production of
alcohol. United States v. Singer, 82 U.S. (15 Wall.) 111, 118-
19, 122 (1872) (upholding an act requiring distillers to “ ‘re-
imburse to the United States the expenses and salary of all
storekeepers or other officers in charge of . . . warehouses’ ”).
Excise taxes levied in the name of public health have long
been held constitutionally permissible, even when such taxa-
tion has put severe burdens on particular industries. See
McCray v. United States, 195 U.S. 27, 63 (1904) (upholding,
as an exercise of Congress’s ability to protect public health,
the constitutionality of an excise tax on artificially colored
oleomargarine “although it be true that the effect of the tax in
question is to repress the manufacture of artificially colored
oleomargarine”); Patton v. Brady, 184 U.S. 608, 623 (1902)
(upholding an excise tax on tobacco and noting that “it is no
part of the function of a court to inquire into the reasonable-
ness of the excise either as respects the amount or the prop-
erty upon which it is imposed”).
Today, a tax on heavy trucks and trailers is dedicated to a
fund intended to improve highways. See 26 U.S.C. § 9503
(establishing a “Highway Trust Fund”); 26 U.S.C. § 4051
(imposing a retail tax on heavy trucks and trailers dedicated
to the Highway Trust Fund). A tax on fishing equipment is
dedicated to government action to preserve fisheries. See 26
U.S.C. § 9504(a) (establishing an “Aquatic Resources Trust
Fund”); 26 U.S.C. § 4161 (imposing an excise tax on sport
fishing equipment dedicated to the Aquatic Resources Trust
Fund). Yet we would not conclude that the manufacturers of
large trucks have a First Amendment right to veto government
speech on highway safety, or that the makers of sonar fish
finders have a First Amendment right to direct government
speech on fishery management.
[6] There is thus a long history of excise taxation directed
at particular industries in the name of public health and wel-
fare. Despite this history, not one court has upheld a right of
an industry to block otherwise legitimate government activity
12924 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
simply because the industry pays an excise tax. The tobacco
companies offer no reason why they should be entitled to such
unique treatment here.
Significantly, the tobacco companies have not offered any
principle that could limit the consequences of sustaining their
objection. Although the companies claim that they object only
to the denigratory advertisements at issue here, they offer no
principled basis for limiting their “nexus” theory to such
advertisements alone. For example, the tobacco companies do
not explain why, if their First Amendment rights have been
violated solely because of a nexus between the surtax and the
challenged advertisements, they would not also have a right
to challenge the use of surtax funds for anti-tobacco education
in the public schools to the extent that they disagreed with the
state’s educational message.
[7] Thus, if the tobacco companies were permitted to object
to government speech simply because they pay an excise tax
used to fund speech contrary to their interests, the result could
be not only to reduce government’s ability to disseminate
ideas but also an explosion of litigation that could allow pri-
vate interests to control public messages. There are numerous
taxpayers who contribute disproportionately through excise
taxes to government speech with which they disagree. If each
were to have a similar right to challenge what it may deem
government “propaganda,” the government’s ability to per-
form crucial educational and public health activities in the
interests of all citizens would be hampered. Cf. Downs, 228
F.3d at 1015 (noting that if a First Amendment violation
applied to government speech, “[the plaintiff] would be able
to do to the government what the government could not do to
[the plaintiff]: compel it to embrace a viewpoint.”)
D. Other Limitations on Government Speech and the
Power to Tax
At the risk of repetition, we emphasize that the tobacco
companies do not argue that the government’s speech itself is
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12925
constitutionally impermissible; nor do they argue that the gov-
ernment has burdened their First Amendment rights through
the exercise of its power to tax. Were the tobacco companies
challenging a California restriction on their ability to express
their views, our analysis would be different. As the district
court noted, there are already several recognized instances of
constitutional limitations on government speech and “govern-
ment is no more free to disregard constitutional and other
legal norms when it speaks than when it acts.” Bonta, 272 F.
Supp. 2d at 1110. For example, there may be instances in
which the government speaks in such a way as to make pri-
vate speech difficult or impossible, or to interfere with some
other constitutional right, which could raise First Amendment
concerns. See Warner Cable Communications, Inc. v. City of
Niceville, 911 F.2d 634, 638 (11th Cir. 1990) (“[T]he govern-
ment may not speak so loudly as to make it impossible for
other speakers to be heard by their audience. The government
would then be preventing the speakers’ access to that audi-
ence, and first amendment concerns would arise.”).
Another limitation on government speech is found in the
Establishment Clause. See Bd. of Educ. of Westside Cmty.
Schs. v. Mergens, 496 U.S. 226, 250 (1990) (“[T]here is a cru-
cial difference between government speech endorsing reli-
gion, which the Establishment Clause forbids, and private
speech endorsing religion, which the Free Speech and Free
Exercise Clauses protect.”) (emphasis in original). The dis-
sent, quoting a passage often used by the tobacco companies
in this litigation, invokes Thomas Jefferson’s pronouncement
that “to compel a man to furnish contributions of money for
the propagation of opinions which he disbelieves, is sinful and
tyrannical.” P. Kurland & R. Lerner, eds., 5 THE FOUNDERS’
CONSTITUTION 77 (1987). As the district court carefully
explained,
The quoted statement is taken from Jefferson’s Vir-
ginia Bill for Establishing Religious Freedom, a
landmark anti-establishment measure declaring that
12926 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
‘no man shall be compelled to frequent or support
any religious worship, place, or ministry whatso-
ever.’ Id. It is perhaps significant that the statement
arose in this context, since ‘the Establishment Clause
is a specific prohibition on forms of state interven-
tion in religious affairs with no precise counterpart
in the speech provisions.’ Lee v. Weisman, 505 U.S.
577 (1992).
Bonta, 272 F. Supp. 2d at 1107 n.25. Jefferson’s comment
was directed to a situation in which the government speech
itself was improper, not to valid taxation used to fund valid
governmental speech.
There are also strict limits on the government’s ability to
impose taxes that are “general law[s] singling out a disfavored
group on the basis of speech content.” Rust, 500 U.S. at 194;
see also Arkansas Writers’ Project, Inc., 481 U.S. at 228-29.9
A government tax designed to suppress the speech of a tar-
geted group would raise serious First Amendment concerns.
[8] But these are issues not before us. On this record, we
need not determine the metes and bounds of constitutionally
permissible government speech; nor need we articulate
abstract limits on the state’s power to tax. We share our dis-
9
Concerns about forced expression, repression of speech, improper taxa-
tion and interference with other constitutional rights could arise, for exam-
ple, under the facts of Summit Medical Center v. Riley, 284 F. Supp. 2d
1350, 1353-54 (M.D. Ala. 2003), a case cited to us by the tobacco compa-
nies. In Summit Medical, it appears that the state of Alabama designed a
program to suppress abortion clinics’ ability to disseminate independent
information, requiring the clinics to purchase from the state and then dis-
play information intended to dissuade women from obtaining abortions.
The plaintiffs in Summit Medical challenged the burden this mandatory
purchase-and-display program imposed upon their own expression, as well
as its compulsory and discriminatory nature. Id. at 1354. We take no posi-
tion on the correctness of the district court’s decision in Summit Medical,
but note that it confronted a factual situation very different from the one
we consider here.
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12927
senting colleague’s concern that the government not use its
taxation power to suppress the free expression of disfavored
groups, but the tobacco companies claim no suppression of
ideas. The nexus between excise taxation and government
speech is the only First Amendment argument they raise, and
we limit ourselves to that issue alone. For the reasons set out
above, we reject the companies’ argument.
II. Seventh Amendment and Due Process Claims
The tobacco companies also raise a novel claim under the
Seventh Amendment. They note that they face litigation in
state and federal courts. They argue that because the adver-
tisements publicly disparage the reputation and character of
the tobacco industry, their right to receive a jury trial under
the Seventh Amendment has been infringed because potential
future jurors in potential future trials could be biased by the
advertising. They do not, however, allege that any actual trial
in which they have participated was rendered unconstitution-
ally unfair by the challenged advertisements.
There are a number of problems with this argument. The
companies cite only to cases involving a criminal defendant’s
Sixth Amendment right to jury trial in criminal cases or to
interpretations of the procedural rules governing the federal
courts, and not to any case suggesting that they have an inde-
pendent Seventh or Fourteenth Amendment right to be free of
disparaging state speech before a civil trial. Moreover, as the
district court noted, the Seventh Amendment’s guarantee of
the right to a civil trial by jury does not apply to the states and
was not incorporated into the Fourteenth Amendment. See
Dohany v. Rogers, 281 U.S. 363, 369 (1930); Walker v. Sau-
vinet, 92 U.S. 90, 92 (1875). Therefore, whether parties may
raise claims against state officials under 42 U.S.C. § 1983 for
Seventh Amendment violations is questionable.
[9] We need not consider these issues, however. Even
assuming that the tobacco companies may properly allege a
12928 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
violation of Seventh or Fourteenth Amendment rights due to
juror bias created by these advertisements, the proper context
for raising such issues is an actual jury trial where a court
could consider whether real jurors actually have been biased.
Allegations of juror bias are traditionally resolved by the
court conducting the trial, not courts considering hypothetical
future proceedings. See Smith v. Phillips, 455 U.S. 209, 217
(1982) (“Due process means a jury capable and willing to
decide the case solely on the evidence before it, and a trial
judge ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they happen.
Such determinations may properly be made at a hearing [con-
ducted by the trial court].”). None of the cases cited by the
companies supports their asserted right to be free from nega-
tive publicity because potential jurors may be prejudiced in
potential cases, and we are aware of no case that supports
their claim that this court should enjoin certain speech in
order to protect the alleged injury occurring in another court.
The tobacco companies do not allege the elements of stig-
matization that would violate their due process rights. Cf.
Wisconsin v. Constantineau, 400 U.S. 433, 436 (1971) (estab-
lishing that stigma can change a person’s legal status and
therefore constitute a violation of due process). The compa-
nies cannot meet the requirements of the “stigma-plus” test
established in Paul v. Davis, where the Supreme Court
explained that in addition to reputational harm, a due process
stigma claim must assert that a recognized liberty or property
right, as secured by the due process clauses, has been vio-
lated. 424 U.S. 693, 701 (1976); see also WMX Tech., Inc. v.
Miller, 197 F.3d 367, 374 (9th Cir. 1999) (“[R]eputation,
without more, is not a protected constitutional interest.”). The
companies assert that the alleged deprivation of their right to
a fair jury trial is sufficient to meet the stigma-plus test. In
essence, the companies are trying to bootstrap two arguments
about reputational harm to create a single claim — arguing
that the reputational harm creates juror bias, and that the juror
bias combined with reputational harm creates a constitution-
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12929
ally improper stigma. We reject such an attempt at bootstrap-
ping. See Paul, 424 U.S. at 712 (“[P]etitioners’ defamatory
publications, however seriously they may have harmed
respondent’s reputation, did not deprive him of any ‘liberty’
or ‘property’ interests protected by the Due Process Clause.”).
CONCLUSION
[10] For the reasons set forth above, we affirm the judg-
ment of the district court.
POSTSCRIPT
After we filed our opinion, the Supreme Court decided
Johanns v. Livestock Marketing Ass’n, 125 S. Ct. 2055
(2005), holding that the Beef Promotion and Research Act of
1985 did not violate the First Amendment by imposing an
assessment on all sales and importation of cattle to fund beef
promotional campaigns with which many of the assessed par-
ties disagreed. The Court reasoned, as we do here, that the Act
was not susceptible to a First Amendment compelled-subsidy
challenge because the assessments funded government
speech. Although the Johanns opinion affirms our reasoning,
Judge Trott remains in dissent. He would now remand to the
district court pursuant to the Court’s statement in Johanns that
an as-applied challenge might lie “if it were established . . .
that individual beef advertisements were attributed to respon-
dents.” Id. at 2065.
Appellants have never, before us or the district court,
claimed that the ads at issue in this litigation could be or were
attributed to them; nor does the record reveal a material ques-
tion of fact on the issue. A reasonable viewer could not
believe that these anti-industry ads, expressly identified as
“Sponsored by the California Department of Health Services,”
were created, produced or approved by the appellants. The ad
singled out by the dissent as “put[ting] [words] directly into
the mouth of the tobacco industry,” for example, is unmistak-
12930 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
able satire. In that ad, children play in a schoolyard while cig-
arettes fall like rain from the sky and a voiceover states “[w]e
have to sell cigarettes to your kids. We need half a million
new smokers a year . . . so we advertise near schools, at candy
counters.” No reasonable viewer could overlook the satirical
tenor of this ad and attribute the voiceover text to actual
tobacco executives.
We also find inapposite the dissent’s analogy to our recent
order in Charter v. United States Department of Agriculture,
412 F.3d 1017 (9th Cir. 2005). We remanded on the question
of attribution in that case because the record indicated that the
National Cattlemen’s Beef Association “routinely, before
Congress, and in other public ways and in press announce-
ments, states that it is the trade organization and marketing
organization of America’s one million cattle producers.” Id.
at 1019. The record in this case contains no evidence that the
state ever attributed its ads to the appellants or that a reason-
able viewer could have done so; accordingly, we reject the
analogy to Charter and decline Judge Trott’s invitation to
remand.
AFFIRMED.
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12931
TROTT, Circuit Judge, Dissenting:
To compel a man to furnish contributions of money
for the propagation of opinions which he disbelieves
is sinful and tyrannical.1
Thomas Jefferson
The atmospheric challenge in this case, which is one we
often face, is to focus not on the overwhelming demerits of
the underlying subject matter — smoking — but on the pri-
mary constitutional principle at issue: whether consistent with
the First Amendment’s right against government abridgement
of freedom of speech — which includes “the right to refrain
from speaking at all”2 — a state can compel reluctant individ-
uals and private entities directly and exclusively to pay for
and to support a public interest message with which the enti-
ties disagree and which subjects them public scorn, obloquy,
and even hatred. It would be a mistake in this principled con-
text to become overly distracted by the medical, physical, per-
sonal, financial, and addictive havoc knowingly inflicted for
profit upon the public by the tobacco industry; or to be influ-
enced by the hundreds of thousands of premature, prevent-
able, and horrible smoking deaths caused by cancer,
emphysema, heart and lung disease, and stroke. There is little
doubt that government, in its role as steward of the public’s
general welfare, can mount a vigorous public campaign
against smoking and the tobacco industry, and that it can do
so with general tax revenues and by way of “government
speech;” but can government do so using this particular com-
pulsory funding mechanism? Today the target of government
dislike is smoking, but tomorrow it will be something else,
such as Alabama’s imposition, in its the Woman’s Right to
Know Act, of a fee applied to abortion providers for the pro-
1
See, e.g., Abood v. Detroit Bd. of Education, 431 U.S. 209, 235 n. 31
(1977).
2
Wooley v. Maynard, 430 U.S. 705, 714 (1977).
12932 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
duction by the state of pro-childbirth materials which the pro-
viders did not wish to endorse, much less purchase. See Ala.
Code §§ 26-23A - 1 to 13; Summit Medical Center of Ala-
bama, Inc. v. Riley, 284 F. Supp. 2d 1350 (M.D. Alabama
2003). Who knows whose disfavored ox or whose industry or
business or lifestyle will be the next to be fatally gored in this
manner by a well-intentioned government.
Moreover, hanging over this controversy like a blinking
yellow light in the constitutional sky is Chief Justice Mar-
shall’s timeless admonition in McCulloch v. Maryland, 4
Wheat. 316, 4 L. Ed. 579 (1819), that “the power to tax is the
power to destroy.” This warning is not only memorable, but
it reminds us that might, especially in the hands of govern-
ment, does not always make right.
There appears no doubt that California’s goal is to destroy
the industry singled out for this targeted and exclusive tax.
Although an earnest deputy attorney general denied this lethal
purpose during oral argument, claiming that the Act’s only
purpose was to inform the public, her boss, the Attorney Gen-
eral of California William Lockyer, forthrightly said differ-
ently after the hearing. Attorney General Lockyer, who took
the unusual step of attending the argument himself, is quoted
by the Los Angeles Daily Journal as calling the tobacco com-
panies “merchants of death” and agreed that the ad campaign
aimed to put them out of business. He added that “the demo-
cratic process will provide a check on the use of taxes to fund
such messages. Elected officials are responsible for appropri-
ating the money . . . . If voters don’t like the message, they
can oust the messenger.”3 Query.
So this is the issue: can government, consistent with the
First Amendment’s right against the abridgment of free
speech, create a public information program against an indus-
3
Los Angeles Daily Journal, Tuesday, May 11, 2004, “Court revisits
anti-smoking ad campaign.”
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12933
try funded by a targeted excise tax imposed solely upon that
industry and which is segregated in a special state health edu-
cation account? Not surprisingly, in our system which values
not just good goals but also the right process, the question
here is not ends, but means.
DISCUSSION
First Amendment Claim
1. Government and Compelled Speech
The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech . . . .” U.S. Const.
amend. I. It is axiomatic that “[j]ust as the First Amendment
may prevent the government from prohibiting speech, the
Amendment may prevent the government from compelling
individuals to express certain views . . . or from compelling
certain individuals to pay subsidies for speech to which they
object.”4 United States v. United Foods, 533 U.S. 405, 410
(2003). In United Foods, the latest in a series of compelled
assessments cases, the Supreme Court held that government’s
forced assessments of mushroom producers, which funded
advertisements promoting mushroom sales, violated the First
Amendment. Relying primarily upon United Foods, appel-
lants assert that California’s targeted tax, which funds anti-
industry advertisements, violates their right against compelled
financing of speech.
By labeling the anti-tobacco advertisements “government
speech,” the majority concludes that the targeted tax is clear
4
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) provides
an often quoted passage regarding the extension of free speech protections
to those who wish not to speak: “If there is any fixed star in our constitu-
tional constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein.” Id.
at 642.
12934 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
of First Amendment concerns. I respectfully disagree. Though
the Supreme Court has embraced the existence of a “govern-
ment speech” doctrine in this general context, United Foods,
533 U.S. at 417, the Court has not provided a clear explana-
tion of the reach or proper application of the doctrine. The
appellants assert that the central question is the source of the
funding for the particular speech, contending that a targeted
tax on a particular group to fund speech opposed to by that
group constitutes unconstitutional compelled speech. Ulti-
mately, the State’s argument that the First Amendment’s pro-
tections against compelled speech can be avoided by finding
that the speech is spoken by the government is at odds with
the force and logic of controlling authority.
2. Government Speech
Focusing on the Supreme Court’s brief reference to the
government speech inquiry in United Foods, and the Court’s
discussion of government speech in other contexts, see, e.g.,
Lebron v. National Railroad Passenger Corp., 513 U.S. 374
(1995), the State asserts that the government is free from First
Amendment concerns “when the state is the speaker.” Rosen-
berger v. Rector & Visitors of the Univ. of Virginia, 515 U.S.
819, 833 (1995).5 Specifically, the State asserts that because
the speech at issue is not explicitly attributed to appellants,
the free speech concerns of traditional compelled speech
cases, see, e.g., Wooley, 430 U.S. 705, are absent. Moreover,
5
I note that the State also supports its position with general pronounce-
ments made by the Court in its compelled assessments of speech cases
indicating that the proper functioning of government requires the govern-
ment to have control over the nature and content of its speech. See, e.g.,
Keller v. State Bar of California, 496 U.S. 1, 12-13 (1990) (“Government
officials are expected as part of the democratic process to represent and
espouse the views of a majority of their constituents. . . . If every citizen
were to have a right to insist that no one paid by public funds to express
a view with which he disagreed, debate over issues of great concern to the
public would be limited to those in the private sector, and the process of
government as we know it would be radically transformed.”)
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12935
the state asserts that the source of the State’s funding for its
speech is irrelevant to the question of the constitutionality of
the particular speech.
The State’s arguments, however, are not consistent with the
trajectory and force of the Supreme Court’s recent compelled
speech jurisprudence. Specifically, the State’s framework
ignores the central lesson of United Foods: in that case, the
Supreme Court reigned in its previous pronouncements in
Glickman v. Wileman Bros. & Elliott, 521 U.S. 457, 476
(1997) that coerced government speech is akin to economic
regulation and not entitled to First Amendment protection.
See Glickman, 521 U.S. at 476. Instead, the United Foods
Court propounded a broad constitutional protection against
compelled contributions for commercial speech. See United
Foods, 533 U.S. at 414. Indeed, applying United Foods, one
court has held that the issue of government speech, which
generally involves the state’s power to control the content of
its speech, is fundamentally different from the “government’s
authority to compel [plaintiffs] to support speech with which
they personally disagree; such compulsion is a form of ‘gov-
ernment interference with private speech.’ ” Livestock Mar-
keting Ass. v. USDA, 335 F.3d 711, 720 (8th Cir. 2003)
(holding compelled contributions in beef promotion violated
First Amendment) (certiorari granted in part by Veneman v.
Livestock Marketing Ass’n, 124 S. Ct. 2389 (U.S. May 24,
2004) and Nebraska Cattlemen, Inc. v. Livestock Marketing
Ass’n, 124 S. Ct. 2390 (U.S. May 24, 2004). As Justice
Thomas stressed in concurrence, “[a]ny regulation that com-
pels the funding of advertising must be subjected to the most
stringent First Amendment scrutiny.” United Foods, 533 U.S.
at 419 (Thomas, J., concurring). Finally, the State’s argument
necessarily relies on an untenable distinction between govern-
ment speech activities paid directly from the government trea-
sury, or coordinated by traditional government agencies, and
those that are coordinated by more complex regulatory orga-
nizations and schemes, even when such schemes are funded
and run by the government. As one commentator has noted,
12936 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
“[g]overnment speech cannot logically be made a function of
the office of the person making the allocation decision. That
approach would elevate form over substance and would
enable the government to dictate the First Amendment result
simply by manipulating the agency in the decision-making
process.” Randall P. Bezanson & William G. Buss, The Many
Faces of Government Speech, 86 Iowa L. Rev. 1377, 1430
(2001).
Accordingly, recognizing the principle expressed in United
Foods, the appellants clearly have a First Amendment interest
at stake that is not erased by pigeonholing the ads as “govern-
ment speech.” The question remains, however, whether the
compelled speech does indeed violate appellants’ free speech
rights, an analysis that is governed by the Supreme Court’s
compelled speech line of cases, including Abood, Keller,
Glickman, and United Foods.
3. Compelled Speech
Appellants rely on the string of cases, beginning with
Abood, concerning compelled contributions to speech, and
assert that there exists the fundamental principle that, under
the First Amendment, a discrete group should not be specifi-
cally taxed to fund speech with which they disagree. Indeed,
this proffered principle provides a coherent picture of the puz-
zle with which courts have been struggling. See, e.g., Summit
v. Medical Ctr. of Al. v. Riley, 284 F. Supp. 2d 1350, 1360
(holding that state’s imposition of “a direct fee assessment on
a limited class of citizens — abortion providers — and using
the revenue to advance speech in support of the State’s
favored policy position on abortion” intruded on abortion pro-
vider’s free speech rights) (emphasis added); United States v.
Frame, 885 F.2d 1119 (3d Cir. 1989) (“[W]here the govern-
ment requires a publicly identifiable group to contribute to a
fund earmarked for the dissemination of a particular message
associated with that group, the government has directly
focused its coercive power for expressive purposes.”) (citation
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12937
omitted) (emphasis added). The United Foods Court
announced that the “question is whether the government may
underwrite and sponsor speech with a certain viewpoint using
special subsidies exacted from a designated class of person,
some of whom object to the idea being advanced.” United
Foods, 533 U.S. at 410. And in United Foods, the Court
answered: No. Id. at 411.
In answering the question, however, the Court was forced
to distinguish another recent compelled speech case, Glick-
man, which was factually similar to United Foods, but where
the Court had found that no First Amendment issues were
raised by the forced subsidies. 521 U.S. at 460. In Glickman,
the Court determined that “criticisms of generic advertising
provide no basis for concluding that factually accurate adver-
tising constitutes an abridgement of anybody’s right to speak
freely.” Id. at 474. The United Foods Court distinguished
Glickman by asserting that the program in Glickman “man-
dated assessments for speech [which] were ancillary to a more
comprehensive program restricting marketing autonomy.”
United Foods, 533 U.S. at 411-12.
Thus, after distinguishing Glickman, and finding that First
Amendment interests were at stake, the Court proceeded to
apply the tenets established in Abood and Keller, which estab-
lished the “germaneness test.” United Foods, 533 U.S. 413.
That test requires any coerced subsidized speech be germane
to the larger purpose of the association at issue. Abood, 431
U.S. at 235 (holding that union can only finance speech not
germane to collective bargaining with non-objecting mem-
bers’ funds); Keller, 496 U.S. at 13-14 (holding that state bar
association can only compel payment for activities related to
bar’s purposes).6
6
I note that the district court’s decision relied on the question of associa-
tion and stressed the non-associational nature of the tobacco industry
being taxed, thereby distinguishing the Abood line of cases. Those cases
stressed that there exists “a First Amendment interest in not being com-
12938 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
Guided by Glickman and United Foods, and looking at the
statutory scheme provided in the Act, it is clear that the
tobacco companies are not similarly situated to the tree grow-
ers in Glickman, as they are not “bound together and required
by statute to market their products according to cooperative
rules” for purposes other than advertising or speech. United
Foods, 533 U.S. at 412. Nor is the statutory scheme directly
congruous with that in United Foods, as the ads in this case
are a part of a larger regulatory scheme, and thus not clearly
“a program where the principal object is speech itself.” Id. at
415. Thus, the Act is different from both the statute analyzed
in United Foods and the statute in Glickman. Moreover, the
fact that the speech at issue involves, not the promotion of the
relevant group’s product, but the disparagement of the entire
industry, only increases the difficulty of resolving this case.
Given the unique nature of the question presented, proper
review of the Act must acknowledge United Foods’s obvious
pelled to contribute to an organization whose expressive activities conflict
with one’s ‘freedom of belief.’ ” Glickman, 521 U.S. at 471 (quoting
Abood, 431 U.S. at 235). The district court found that because the appel-
lants subject to the surtax were not members of a particular association,
their free speech rights were not undermined by any compelled financing
of speech made on behalf of that association. This finding is also sup-
ported by some of the Court’s language in United Foods, where it noted
that there is “a threshold inquiry . . . whether there is some state imposed
obligation which makes group membership less than voluntary; for it is
only the overriding associational purpose which allows any compelled
subsidy for speech in the first place.” United Foods, 533 U.S. at 413.
However, hinging the right to be free from compelled commercial speech
on whether there is an associational interest at stake ignores the obvious
fact of what the Court actually did in United Foods. Indeed, the Court not
only found that the compelled subsidies constituted an unconstitutional
infringement on the dissenting mushroom grower’s speech rights, but it
did so after expressly distinguishing Glickman on the grounds that there
was no “regime of cooperation” as presented in Glickman. Id. at 415.
Therefore, though the Court saves some of its associational rights rhetoric,
the practical effect of its decision in United Foods is to unhinge its com-
pelled speech analysis from the previously-pronounced requirement that
there be an involuntary group membership.
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12939
retreat from Glickman, and the Court’s pronouncement of
broadened protection against compelled speech. In this
regard, as the appellants assert, United Foods and the Court’s
previous compelled speech case law can be reconciled and
understood by applying what United Foods explicitly stated:
the First Amendment forbids certain compelled assessments
from “a particular citizen, or a discrete group of citizens, to
pay special subsidies for speech.” 533 U.S. at 411.
As the Third Circuit recently explained, however, though a
case may be properly characterized as a compelled speech
case, “[t]he Supreme Court . . . has left unresolved the stan-
dard for determining the validity of laws compelling commer-
cial speech . . . .” Cochran v. Veneman, 359 F.3d 263, 277
(3rd Cir. 2004). In Cochran, the court also explained that
there are several standards available which the courts may try
to apply: 1) the lenient standard derived from commercial
speech cases, see, e.g., Central Hudson Gas & Elec. Corp. v.
Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980), or some adap-
tation of that commercial speech standard, see, e.g., Livestock
Marketing, 335 F.3d at 722-23; 2) the “germaneness test” of
traditional compelled speech cases, see, e.g., Abood, 431 U.S.
at 235-36, and 3) the stringent standard of associational cases,
see, e.g., United States v. Frame, 885 F.2d 1119 (3rd Cir.
1989).
The speech and the funding mechanism in this case is ques-
tionable under whatever standard one uses. In Central Hud-
son, the Court held that commercial speech is to be evaluated
using intermediate scrutiny. That is, 1) the state must “assert
a substantial government interest;” 2) “the regulatory tech-
nique must be in proportion to that interest;” and 3) the incur-
sion on commercial speech “must be designed carefully to
achieve the State’s goal.” 447 U.S. at 564. Under this stan-
dard, though never before applied to compelled commercial
speech cases,7 the speech regulation at issue, and the targeted
7
I note, in this regard, that the Supreme Court in United Foods refused
to apply the Central Hudson test because the “Government itself [did] not
12940 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
tax placed on appellants, constitutes a disproportional and
overly burdensome regulatory technique, thereby failing the
second and third prongs of the Central Hudson test. Indeed,
the speech in this case is exceptional in its difference from
what the Court has previously encountered in its compelled
commercial speech cases. Whereas previous cases generally
involve promotional activity, see, e.g., Glickman, 521 U.S. at
474; United Foods, 533 U.S. at 413-14, here, California is
specifically targeting one discrete and largely disfavored
group, forcing that group to meet the State’s regulatory goals
by directly financing speech designed to undermine that
group’s status and reputation. Though the State’s goals may
be strong and laudatory, the methods used seriously under-
mine the particular group’s speech rights and seem dispropor-
tional to the goals to be achieved. Accordingly, the Act cannot
survive Central Hudson’s intermediate scrutiny.
Moreover, as did the Sixth Circuit in Michigan Pork Pro-
ducers Ass’n, Inc. v. Veneman, 348 F.3d 157 (6th Cir. 2003),
I “find inapplicable to this case the relaxed scrutiny of com-
mercial speech analysis . . . .” Id. at 163 (citing Glickman, 521
U.S. at 474 n.18 (questioning whether “the Central Hudson
test, which involved commercial speech should govern a case
involving the compelled funding of speech”). The speech in
this case is materially different from the speech issuing from
the private sector that we normally label as commercial.
Applying the “germaneness test” derived from Abood and
its progeny, the compelled speech here would also fail. The
Supreme Court expressly applied this test in United Foods,
and found that “the expression respondent [was] required to
rely upon Central Hudson to challenge the Court of Appeals’ decision.”
533 U.S. at 410. Accordingly, other courts have recognized that the Cen-
tral Hudson test has never been applied by the Supreme Court to com-
pelled assessment of commercial speech cases. See Cochran, 359 F.3d at
277.
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12941
support [was] not germane to a purpose related to an associa-
tion independent from the speech itself.” United Foods, 533
U.S. at 415-16. Of course, as previously explained, there is no
relevant association of tobacco companies for purposes of this
analysis. As the Court stressed in United Foods, the question
is not whether the State necessarily has a larger regulatory
purpose justifying the speech, but whether there is a “coopera-
tive marketing structure . . . to sustain an ancillary assess-
ment” for speech. Id. Here, as in United Foods, there is no
collective association to which the compelled assessments for
speech is germane.
Finally, as in Frame, a pre-Glickman and pre-United Foods
case, the Third Circuit applied the stringent associational
rights standard of Abood, but upheld the constitutionality of
the beef regulatory statute in question because of the compel-
ling state interest involved. Frame, 885 F.2d at 1134. In refus-
ing to extend Frame’s reach after United Foods, however, the
same court held in Cochran that United Foods established
that “promotional programs . . . seem really to be special
interest legislation on behalf of the industry’s interests more
so than the government’s[,]” and therefore constitute uncon-
stitutional compelled speech for those dissenting from the
promotions. 359 F.3d at 279.
What has survived from Frame is the principle that in the
review of a compelled financing statute’s intrusion into free
speech rights, “it is relevant to consider ‘the coerced nexus
between the individual and the specific expressive activity.’ ”
Summit, 284 F. Supp. 2d at 1360 (quoting Frame, 885 F.2d at
1119). Here, the nexus is vital: unlike a situation in which
money is allocated from the general treasury fund, individuals
who have specifically been targeted by the speech are forced
to pay for the speech. See id.
4. Conclusion
In sum, review under any of the available standards reveals
that the compelled assessments in this case constitute an
12942 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
exceptional case of government intrusion on the right not to
be compelled to finance speech. Indeed, the Act is designed
to force one particularly disfavored group to fund speech
directly undermining that group’s reputation. Such state
action offends the very essence of the First Amendment. See
e.g., Sons of Confederate Veterans v. Comm’r of the Va. Dept.
of Motor Vehicles, 305 F.3d 241, 242 (4th Cir. 2002) (“[T]he
First Amendment was not written for the vast majority. . . .
It belongs to the minority of one.”) (Wilkinson, C.J., concur-
ring in denial of rehearing en banc).
Moreover, the State can provide no limiting principle, no
logical reason why, if the government is free to tax and speak
in this manner against this group, it cannot do so against any
other disfavored group or individual. See Summit Medical Ctr.
of Alabama, 284 F. Supp. 2d, at 1361 (refusing to apply the
district court’s analysis in this case, and finding that Ala-
bama’s statute forcing abortion providers to pay for the state’s
informational materials infringes plaintiffs’ First Amendment
rights). Contrary to the Attorney General’s claim that the
democratic process will provide a check on the use of taxes
to fund such messages, by removing the burden of the cost of
this program from every taxpayer except the ones targeted,
this tax becomes the ultimate cheap shot, one not fully subject
to the considerations that normally attend the decision to
require the public at large to pay for something. See Board of
Regents v. Southworth, 529 U.S. 217, 229 (2000) (traditional
political controls ensure responsible government).8 Further-
more, the approach I take does not hinder or unduly burden
the State’s right or power to speak, and it does not interfere
with the imposition of excise or other taxes. It simply requires
8
In Michigan Pork Producers Ass’n v. Venenan, 348 F.3d 157 (6th Cir.
2003), one significant factor in the court’s determination that the speech
involved was not government speech was that the funding did not come
from general tax revenues. Id. at 162. See also Livestock Marketing Ass’n,
335 F.3d at 720 (the flaw in the government speech argument is that the
plaintiff’s funds were identifiable as the funds used to finance the speech
to which they objected).
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12943
the government when doing so to stay within normal channels
and to avoid First Amendment violations. Under the reason-
ing and force of the Supreme Court’s compelled speech cases,
particularly the Court’s recent pronouncements in United
Foods, I respectfully believe the majority’s argument,
although well presented and articulated in their opinion, is
without merit.
POSTSCRIPT
Shortly after I circulated this dissent, the Supreme Court
decided Johanns v. Livestock Marketing Ass’n, 544 U.S.
______, 125 S. Ct. 2055 (2005). For the majority of the Court,
Justice Scalia wrote:
The compelled-subsidy analysis is altogether unaf-
fected by whether the funds for the promotions are
raised by general taxes or through a targeted assess-
ment. Citizens may challenge compelled support of
private speech, but have no First Amendment right
not to fund government speech. And that is no less
true when the funding is achieved through targeted
assessments devoted exclusively to the program to
which the assessed citizens object. The First Amend-
ment does not confer a right to pay one’s taxes into
the general fund, because the injury of compelled
funding (as opposed to the injury of compelled
speech) does not stem from the Government’s mode
of accounting.
Id. at ______ (second emphasis added) (citations omitted).
Not surprisingly, California’s Attorney General suggests
that this ruling “eliminates all possible doubt about the cor-
rectness” of the majority’s decision. I do not agree.
The Johanns Court suggests, while “express[ing] no view
on the point,” that if it were to be shown that the challenged
12944 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
speech would “convince a reasonable factfinder” that “all . . .
producers[ ] would be tarred with the content of each trade-
marked ad,” an “as applied” First Amendment challenge
might lie. Id. at __________. (emphasis added).
Writing separately, Justice Thomas advanced the same sug-
gestion:
Still, if the advertisements associated their generic
pro-beef message with either the individual or orga-
nization 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 government’s control. This principle fol-
lows not only from our cases establishing that the
government may not compel individuals to convey
messages with which they disagree, . . . but also
from our expressive-associate cases, which prohibit
the government from coercively associating individ-
uals or groups with unwanted messages.
Id. at ______. (emphasis added) (citations omitted).
Here, one challenged government television ad —
described by my colleagues as “particularly striking” — uses
a voice-over technique to speak to the public on behalf of the
tobacco industry. The words put directly into the mouths of
the tobacco industry disparagingly associate the appellants
and the industry with the unwanted message about which they
now complain:
We have to sell cigarettes to your kids. We need half
a million new smokers a year just to stay in business
so we advertise near schools, at candy counters. We
R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12945
lower our prices. We have to. It’s nothing personal.
You understand.
The “we” is the appellants.
If this language, albeit couched in a literary device, does
not “tar all in the industry” required to pay for the ad, and if
this language does not “coercively associate” and intention-
ally smear the appellants — all of them — with an “unwanted
message” to which they object, it is hard to know what does.
I respectfully disagree with the district court’s preemption of
this issue as a matter of law. The facts are such as to survive
summary judgment and should be submitted — as suggested
by the Supreme Court — to a factfinder.
At the very least, we should take our lead from our recent
decision in Charter v. United States Department of Agricul-
ture, _____ F.3d _____, _____ (9th Cir. 2005), recognizing
the difference between that case and Johanns with respect to
a possible attribution/association “as applied” challenge:
In light of the Supreme Court’s recognition [in
Johanns] (without expressing a view on the issue)
that an attribution claim might form the basis for an
as-applied First Amendment challenge to the Act,
the district court’s decision must be vacated and the
case remanded for further proceedings to determine,
among other things, whether speech was attributed to
appellants and, if so, whether such attribution can
and does support a claim that the Act is unconstitu-
tional as applied. Id.; see also id. at *9 n.* (Thomas,
J., concurring) (noting that, pursuant to Federal Rule
of Civil Procedure 15, “on remand respondents may
be able to amend their complaint to assert an attribu-
tion claim”).
There is a world of difference between what was at issue
and at stake in Johanns and what is on our docket here. In
12946 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
Johanns, the question was whether, consistent with the First
Amendment, the government could compel beef producers to
fund by way of mandatory assessments a generic advertising
program promoting the sale of beef. 7 U.S.C. § 2901(b). In
our case, however, the purpose of the coerced speech is delib-
erately destructive of those forced to pay for it — not so in
Johanns. Does this difference matter here? I believe it does.
The difference is not just one of degree, but of material kind.
It is one thing to promote the sale of an agricultural product;
it is altogether another to attempt to destroy an entire legal
industry.
I see this case as distinguishable from Johanns, and I con-
tinue respectfully to dissent. In my view, we should remand
to the district court for reconsideration on the “as applied”
issue as newly articulated in Johanns itself.