A concurring opinion by Justice Ruth Bader Ginsburg raised the same significant nutrition issues that she raised in oral arguments in December with such eloquent effect that the bumbling government attorney arguing the case was rendered nearly incoherent. In the concurring opinion, Ginsburg quoted the federal government's Dietary Guidelines, which advise lower consumption of saturated fats and trans fats. Ginsburg is right to hone in on saturated fats, because foods promoted by the checkoff advertising programs, including beef, pork, cheese, and butter, are leading sources of saturated fat. Ginsburg is weaker in her emphasis on trans fats, which do occur in meats, but which predominantly come from hydrogenated vegetable oils, baked goods, and fried foods. But, she is entirely correct to ask whether the checkoff advertising and the Dietary Guidelines can both officially be "government speech." In the end, Ginsburg believes Scalia and the majority reached an adequate decision for the wrong reason.
Justice David Souter's dissenting opinion sharply argues that the Beef Board advertising can't be government speech if both the government and the industry pretend to the public that these commodity boards are producer self-help associations:
Souter's point seems especially timely in light of recent controversies over propaganda, in which the government hired journalists to favor government policies without revealing the government role. Then, Souter starts in on the interesting nutrition issues:
The Court accepts the [government's] defense unwisely. The error is not that government speech can never justify compelling a subsidy, but that a compelled subsidy should not be justifiable by speech unless the government must put that speech forward as its own.... I take the view that if government relies on the government-speech doctrine to compel specific groups to fund speech with targeted taxes, it must make itself politically accountable by indicating that the content actually is a government message, not just the statement of one self-interested group the government is currently willing to invest with power.
No one hearing a commercial for Pepsi or Levi’s thinks Uncle Sam is the man talking behind the curtain. Why would a person reading a beef ad think Uncle Sam was trying to make him eat more steak?This gets him thinking in a footnote about whether the advertisements are consistent with a chapter of the the Dietary Guidelines, entitled "fats":
The message of that chapter is that most Americans need to reduce their consumption of fats, and should get most of the fats they do eat from sources other than beef, namely fish, nuts, and vegetable oils. See id., at 29–31. That the report, which the Secretaries of Agriculture and of Health and Human Services say "is intended to be a primary source of dietary health information," id., at i, does not encourage the consumption of beef (as the beef ads do) is clear from the fact that a different chapter, which discusses fruits, vegetables, whole grains, and fat-free dairy products, is entitled "Food Groups to Encourage."Scalia, in the majority opinion, couldn't leave these nutrition arguments without a rebuttal, in a tart and witty footnote:
The principal dissent suggests that if this is so, then the Government has adopted at best a mixed message, because it also promulgates dietary guidelines that, if followed, would discourage excessive consumption of beef. Post, at 8, n. 5 (opinion of SOUTER, J.); see also post,at 1 (GINSBURG, J., concurring in judgment). Even if we agreed that the protection of the government-speech doctrine must be forfeited whenever there is inconsistency in the message, we would nonetheless accord the protection here. The beef promotions are perfectly compatible with the guidelines’ message of moderate consumption—the ads do not insist that beef is also What’s for Breakfast, Lunch, and Midnight Snack.This is more than just bullying humor by the victor. Scalia really does have a sharp eye for a weakness in the nutrition argument made by Souter and Ginsburg. Saturated fats are an important nutrition issue, and beef is a leading source of these fats, but it is still just one source of many. Within a diet whose total calories are moderate, why can't beef promotion be consistent with the Dietary Guidelines?
That is true enough as far as it goes, but it leaves me with a dreadful ominous sense of an important public policy debate that is about to go terribly awry. It would be one thing if it were beef alone. But increased consumption of beef, pork, cheese, butter, and many other products promoted by the checkoff programs cannot possibly be coherent government speech. Now that the Beef Board has had its victory, each of the commodity checkoffs will go before the courts in turn (appeals courts, not the Supreme Court again) to claim their prizes. And nobody will get the chance to raise the real nutrition argument that should have condemned the Beef Board's case this week.
Further reading: See Andrew Martin's coverage in the Chicago Tribune, an interesting debate on SCOTUSblog, Nathan Newman, A Stitch in Haste, and Say Uncle.