Can THIS really be government speech?

Hooray. The Supreme Court transcript I was waiting for came out today. It is a wonderful lively argument. As press reports had indicated, Justice Ruth Bader Ginsburg was in good form.

JUSTICE GINSBURG: What is the government speech? Usually, the government has a position, and is presenting it. Here, we have America beef producers has a label on -- "Eat meat." But if you went to the Surgeon General, probably that message would be "Eat meat moderately." So what is the government speech? I don't know another case involving a claim of government speech where the message that you are saying is the government's is not the message that the government is putting out when it's dealing with its concern for public health.

MR. KNEEDLER[for the federal government]: Well, the government, in the concern -- in situations where it may be concerned about public health, doesn't say, "Don't eat meat." It -- there may be nutritional standards. And USDA does have nutritional standards that it advises people to adhere to. But what the government is doing here is facilitating a situation, facilitating promotion of a commodity.

It was nice of Mr. Kneedler to concede that "there may be nutritional standards." It is certainly true that in recent decades, the federal government has taken care to avoid the words, "Don't eat meat." The Dietary Guidelines for Americans essentially imply "eat less meat," but official pronouncements generally require more than three words to make the issue sufficiently muddy to avoid a fight. In the current expert panel report proposing new guidelines, you can find the true nuggets of public health wisdom (no sarcasm) buried deep under the mild heading, "Choose fats wisely for good health."

But, weary from years of following this argument, I despair of waiting for the public to demand consistency from the federal government on nutritional grounds. The public interest speaks too often in whispers and squeaks. I am now placing my hopes on a new white knight. There are some billionaires with muscle in the poultry industry, aren't there? Somebody tell them that the following ad has been claimed by the government as "government speech." Perhaps they will put a stop to this nonsense (either that, or ask for a commodity promotion program for themselves).



p.s. I don't imagine anybody in the industry minds me reproducing this ad. If it is government speech, it is in the public domain.