The U.S. Supreme Court's major First Amendment cases from
the 2004-2005 term present an interesting case study of the
continuing debate regarding the feasibility of providing certainty
to courts and litigants through categorical rules in constitutional
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The U.S. Supreme Court’s major First Amendment cases from the 2004-2005 term present an interesting case study of the continuing debate regarding the feasibility of providing certainty to courts and litigants through categorical rules in constitutional adjudication. The court squarely addressed two sets of First Amendment challenges that have arisen in the federal courts with dismaying regularity. The first involves challenges to federal programs that finance generic advertising to promote a particular agricultural product through a mandatory assessment (or “checkoff”) on all industry participants. On that issue, in Johanns v. Livestock Marketing Association, 125 S. Ct. 2055 (2005), the court effectively established a bright-line rule of constitutionality that will largely preclude such challenges going forward. The second involves the highly contentious issue of government displays of the Ten Commandments. On that issue, in Van Orden v. Perry,125 S. Ct. 2854 (2005), and McCreary County v. ACLU, 125 S. Ct. 2722 (2005), a splintered court rejected calls for a bright-line rule, retaining a fact-specific contextual approach that provides little concrete guidance for the lower courts or for state and local governments. That said, it is ironically the decision in Livestock Marketingthat may generate the greater uncertainty over the long term. In broadly limiting generic advertising challenges, the court invigorated a “government speech” doctrine that may have consequences in a host of different contexts that the court and the bar right now can only dimly perceive. In Livestock Marketing, the court addressed for the third time in eight years the constitutionality of a federal checkoff program that compels producers of certain agricultural products to finance generic advertising designed to boost overall consumption of the product. In Glickman v. Wileman Brothers & Elliott, 521 U.S. 457 (1997), the court had upheld a mandatory checkoff program to fund advertising for certain California tree fruits, principally nectarines, plums and peaches. In U.S. v. United Foods, 533 U.S. 405 (2001), the court struck down a checkoff program that supported generic advertising of mushrooms. At issue in Livestock Marketingwas a checkoff program to fund generic advertising for beef, including the campaign with the familiar slogan “Beef. It’s What’s for Dinner,” involving (among other things) television commercials set to the theme from Aaron Copland’s Rodeothat are a staple of American television. The program arose out of the Beef Promotion and Research Act of 1985, which directs the secretary of agriculture to impose a $1-per-head checkoff on all sales or importation of cattle. The money is used to fund beef-related projects, including promotional campaigns designed by the Cattleman’s Beef Promotion and Research Board and approved by the agriculture secretary. Since 1988, more than $1 billion has been collected through the beef checkoff program.
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