Shewry

Opinion by Judge FISHER; Dissent by Judge TROTT

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 , 121 S.Ct. 2334 , 150 L.Ed.2d 438 (2001). California *1129 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 produced by the government’s advertisements creates no First Amendment problem apart from its method of funding. Rather, they argue for an independent First Amendment violation based on the close nexus between the government advertising and the excise tax that funds it. We reject this argument as unsupported by the Constitution and Supreme Court precedent, and as so unlimited in principle…

Dissenting.

To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.

*1143 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 primary 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 individuals and private entities directly and exclusively to pay for and to support a public interest message with which the entities disagree and which subjects them public scorn, obloquy, and even hatred. It would be a mistake in this principled context to become overly distracted by the medical, physical, personal, financial, and addictive havoc knowingly inflicted for profit upon the public by the tobacco industry; or to be influenced by the hundreds of thousands of premature, preventable, and horrible smoking deaths caused by cancer, emphysema, heart and lung disease, and stroke. There is little doubt that…