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JOHANNS v. LIVESTOCK MARKETING ASSN.

No. 03-1164.

544 U.S. 550 (2005)

JOHANNS, SECRETARY OF AGRICULTURE, ET AL. v. LIVESTOCK MARKETING ASSOCIATION ET AL.

Supreme Court of United States.

Decided May 23, 2005.

Attorney(s) appearing for the Case

Deputy Solicitor General Kneedler argued the cause for the federal petitioners in No. 03-1164. With him on the briefs in both cases were Acting Solicitor General Clement, Assistant Attorney General Keisler, Irving L. Gornstein, Douglas N. Letter, and Matthew M. Collette.

Gregory G. Garre argued the cause for petitioners in No. 03-1165. With him on the briefs was Lorane F. Hebert.

Laurence H. Tribe argued the cause for respondents in both cases. With him on the brief were Thomas Goldstein, Amy Howe, Philip Olsson, Ronald A. Parsons, Jr., and Scott N. Heidepriem.†

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, THOMAS, and BREYER, JJ., joined. THOMAS, J., p. 567, and BREYER, J., p. 569, filed concurring opinions. GINSBURG, J., filed an opinion concurring in the judgment, p. 569. KENNEDY, J., filed a dissenting opinion, p. 570. SOUTER, J., filed a dissenting opinion, in which STEVENS and KENNEDY, JJ., joined, p. 570.

JUSTICE SCALIA delivered the opinion of the Court.

For the third time in eight years, we consider whether a federal program that finances generic advertising to promote an agricultural product violates the First Amendment. In these cases, unlike the previous two, the dispositive question is whether the generic advertising at issue is the Government's own speech and therefore is exempt from First Amendment scrutiny.

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