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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 Marketing that 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 Marketing was 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 “Rodeo” that 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. The plaintiffs in Livestock Marketing were industry participants who are subject to the checkoff but object to the generic advertising on the ground that it impedes their own efforts to tout the superiority of their specific product (e.g., grain-fed beef). Relying principally on United Foods, they contended that the compelled funding of speech to which they object violates the First Amendment. In assessing the plaintiffs’ First Amendment challenge, the Court appeared troubled by the notion that it was fast becoming a court of agricultural appeals, consigned to hear fact-specific challenges to generic advertising programs. And with good reason. In addition to cases involving tree fruit, mushrooms and beef, cases involving challenges to generic advertising of apples, grapes, pork, dairy products, citrus fruits, cotton products and even alligator products were making their way through the federal courts, as numerous amicus briefs made clear. Thus, even though all members of the Court agreed that the beef program was indistinguishable from the mushroom program invalidated in United Foods, a majority of the Court sought a new approach. United Foods had relied principally on cases striking down the use of compulsory dues (such as union dues or attorney bar dues) to fund speech on political matters. A majority of the Court in Livestock Marketing concluded that those cases were not on point because they involved speech by a private entity (the union or the bar), while the beef checkoff program involved what the Court viewed as government speech. That theory, the Court noted, had not been timely presented by the government in either United Foods or Wileman Brothers. As a general matter, we as federal taxpayers have no basis to bring a First Amendment “compelled speech” challenge based solely on the fact that the government is using our tax dollars to speak in a way we do not like. The Court concluded that the checkoff cases stood under the same umbrella. The majority noted that Congress and the secretary of agriculture had created the beef checkoff program and “set out the overarching message” — promote beef — and that the secretary exercised final approval power over the wording of every promotional campaign. That was enough, in the Court’s view, to characterize the beef commercials as government speech that was immune from challenge under the compelled subsidy theory, even though the promotional materials nowhere suggested that the government was the speaker. Justice David H. Souter’s dissent decried the majority’s new approach, noting that a compelled subsidy imposed on a targeted group of taxpayers should not be considered to be justifiable government speech “unless the government must put that speech forward as its own.” Souter also noted that the Court’s treatment of targeted taxes on a par with broad tax schemes ignored that the former impose “a more acute limitation on [taxpayers'] presumptive autonomy as speakers to decide what to say and to pay for others to say.” Souter thus perceived more risks than rewards from the majority’s categorical analysis. The clear direction that the majority provided in Livestock Marketing contrasts vividly with the muddle that emerged from the Court’s two Ten Commandments decisions. Seven of the nine justices wrote opinions in the decisions striking down one display and upholding the other, prompting Chief Justice William H. Rehnquist to quip from the bench as the decisions were announced that “I had no idea there were so many justices on the Court.” Van Orden involved a 6-feet high, 3 1/2-feet wide engraving of the Ten Commandments that was erected by the Fraternal Order of Eagles in 1961. The monument stands today where it has stood for more than 40 years — on the 22-acre grounds of the Texas State Capitol, along with 16 other monuments and 21 historical markers purporting to commemorate the “people, ideals, and events that compose Texas identity.” The display at issue in McCreary has a more colorful history. In 1999, McCreary County, Ky., chose to display prominently in its courthouse a large gold-framed copy of the Ten Commandments, readily visible to those using the courthouse. The American Civil Liberties Union filed suit to enjoin the county from maintaining the display, but before that suit could be adjudicated, the county authorized a second, expanded display that added eight other documents, all of which either had a religious theme or were excerpted to highlight a religious element of the document. The display also included a resolution from the county that noted, among other things, that the county had in 1993 “voted unanimously … to adjourn … ‘in remembrance and honor of Jesus Christ, the Prince of Ethics.’” The district court entered an injunction against the display, and the county, on advice of counsel, eventually undertook to revise it once more. The third display — the one that reached the Court — contained nine equally sized documents, one of which was the Ten Commandments, and the other eight of which were American “foundational” documents, including the Declaration of Independence, the Bill of Rights, the Mayflower Compact and the Magna Carta. In a pair of 5-4 decisions, the Court upheld the display in Van Orden and struck down the display in McCreary County. Four justices (Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Rehnquist) would have upheld both displays, adopting something approaching a per se rule of validity for government displays of the Ten Commandments, at least outside of a school setting. The four justices emphasized the “unbroken acknowledgement by all three branches of government of the role of religion in American life from at least 1789,” and noted that displays that incorporate the Ten Commandments are common in government buildings in and around Washington, including in the Court’s own courtroom. Thus, although recognizing that, “[o]f course, the Ten Commandments are religious,” they saw in displays of the Ten Commandments “an undeniable historical meaning” and a recognition of “the role the Decalogue plays in America’s heritage.” “Passive” governmental displays of the Ten Commandments such as those at issue in Van Orden and McCreary County were thus effectively beyond challenge. Justice Stephen G. Breyer provided the pivotal fifth vote to uphold the Texas display, but did so in a separate concurrence that took a polar opposite approach. Breyer noted the difficulties inherent in establishment clause jurisprudence, which he said was designed to accomplish a separation between church and state without “compel[ling] the government to purge from the public sphere all that in any way partakes of the religious.” In language that no doubt rankled several of the justices with whom he voted, Breyer emphasized that “no exact formula can dictate a resolution to such fact-intensive cases,” and there was “no test-related substitute for the exercise of legal judgment.” Breyer thus expressly refused to apply any of the Court’s prior tests (such as that articulated in Lemon v. Kurtzman), and relied instead on the “basic purposes” of the First Amendment’s religion clauses themselves. The fact that the monument sits in a large park with other historical monuments and markers, as well as the fact that it was there for 40 years before it was first challenged, convinced Breyer that the display fell on the permissible side of the establishment-clause line. In McCreary County, by contrast, Breyer voted with the Van Orden dissenters to strike down the display, over a vigorous dissent by the Van Orden plurality. In an opinion by Souter that all five members of the majority joined in full, the Court held that when the government acts with “the ostensible and predominant purpose of advancing religion,” the government violates the establishment clause. Given the evolution of the county courthouse display at issue, the Court concluded that the evidence of religious purpose was overwhelming. The Court rejected the county’s assertion that the prior history was irrelevant, noting that “the world is not made brand new every morning, and the county is asking us to ignore perfectly probative evidence.” The Court recognized that its approach might cause it to reach differing constitutional judgments about identical displays based solely on the government’s purpose in creating the displays. The Court noted that this “presents no incongruity, however, because purpose matters.” The opinions in the Ten Commandments cases thus did little to change or clarify the law. To be sure, the cases are significant. They place in sharp relief the divisions in the Court about the role of the establishment clause and the government’s obligation (or lack thereof) to exhibit neutrality toward religion, and the hundreds of pages of opinions (of which this brief synopsis barely scratches the surface) provide fodder for academics and litigants alike. But at the end of the day, the lower courts are left to continue the case-specific, highly contextual analysis that they used for years, ensuring that case-by-case adjudication of religious displays will continue. If the role of the Court is to provide clear direction, then one could say that the Court got it half right. It cleared up the doctrinal confusion in Livestock Marketing, but left that confusion in place in the Ten Commandments cases. But that view seems mistaken, or is at least an oversimplification. For while the Ten Commandments analysis is highly contextual, there is little to suggest mass confusion in the lower courts. Notably, in both Van Orden and McCreary County, the Court affirmed the decision of the courts of appeals. The result of the Court’s separate opinions is thus to leave the cases in the capable hands of the lower courts, which seem generally to be able to separate the permissible from the impermissible. The consequences of Livestock Marketing are much less clear. To be sure, on the issue of generic advertising, much of the uncertainty and the need for case-by-case analysis has been eliminated. But the application of the Court’s broadened government-speech analysis to other areas of the law is much less certain. As Souter noted, the “government-speech doctrine is relatively new, and correspondingly imprecise.” Whether the government or other litigants will seek to extend that doctrine to other contexts — for example, to justify greater restrictions on recipients of government grants — is anyone’s guess. The Court’s First Amendment cases this term are thus a small reminder that certainty in constitutional litigation may be more easily pursued than attained. Ian Heath Gershengorn is a partner in the Washington office of Chicago’s Jenner & Block, and a member of the firm’s appellate and Supreme Court practice, with concentrations in telecommunications, media and constitutional law, and Indian law. He filed amicus briefs on behalf of the petitioner in Van Orden and the respondent in McCreary County , both cases discussed in this article. The firm also filed an amicus brief supporting the respondents in Livestock Marketing Association.

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