Shewry

ORDER

In light of the Supreme Court’s decision in Johanns v. Livestock Marketing Ass’n , — U.S. —, 125 S.Ct. 2055 , 161 L.Ed.2d 896 (2005), the opinion and dissent filed on September 28, 2004, and appearing at slip op. 14,067, 384 F.3d 1126 (9th Cir.2004), and slip op. 14,096, 384 F.3d 1126 , 1142, respectively, are amended as follows:

At slip op. 14,095, line 31, insert the following postscript after “we affirm the judgment of the district court.” and before “AFFIRMED.”:

POSTSCRIPT

After we filed our opinion, the Supreme Court decided Johanns v. Livestock Marketing Ass’n, — U.S. —, 125 S.Ct. 2055 , 161 L.Ed.2d 896 (2005), holding that the Beef Promotion and Research Act of 1985 did not violate the First Amendment by imposing an assessment on all sales and importation of cattle to fund beef promotional campaigns with which many of the assessed parties disagreed. The Court reasoned, as we do here, that the Act was not susceptible to a First Amendment compelled-subsidy challenge because the assessments funded government speech. Although the Johanns opinion affirms our reasoning, Judge Trott remains in dissent. He would now remand to the district court pursuant to the Court’s…

Dissenting:

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

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…