with a very short quotation but this one is not from thomas jefferson but rather from the united states supreme court and i quote first amendment values are at serious risk if the government can't compel a particular  a discrete group of citizens to pay special subsidies for speech on the side that it's a verse and quote looking problem with these quotes as though they're taken out of context and what i would like to understand because i've spent a lot of time reading all these cases you can find strong quotes all along i am interested and i think very serious and very difficult case i am interested what the limits are your your a rgument however your extract fellating from agricultural cases where the issue is generic advertising and it's a commercial context what we're talking about here is the government tax dollars to educate the public against the evils of smoking something which you saying if it comes out of the general tax fund is ok but because they are using what you say is your money  therefore you have the opportunity the right to protest it and stop it stop the use of your money not stop the advertising and so my question is in light of your statements in your briefs that you're only going after the advertisements what's the limiting principle to say that if the tobacco companies object to the state's use of what you consider to be your money to go beyond some neutral sta we are not objecting to all of the anti tobacco ads we are only object i think that's what you say but there's i mean if we write an opinion saying you can attack these ads that doesn't mean you won't come down the pike or you with some other l reply memorandum we have taken the position i think would be judicially and start from arguing to the contrary that that that a factual and relating to the dangers of smoking would not be compelled speech that would violate the first amendment and we cited your honour's to the zohar a case by the united states supreme court and the sorrell case from the second circuit court of appeals the notion is that that is in the sense a kind of commercial speech the government can ask manufacturer to fund a program that tell us the populace about the dangers of the product that we have right so we are in a classroom a teacher with funds that are attributable to the surtax begins telling her or his or her students the tobacco is a terrible drug that will poison poison them and cause them disease and the tobacco executives asking you what the limiting principle is your argument is this the source of the tax gives the first amendment right so i'm trying to understand if we focus as you do on the source of the monies once the source of the money has become  e key then don't you have the right and then to monitor the use of those funds as they apply to anything that would be related to the tobacco companies in the sale of tobacco and whether or not they were factual just to make sure that i understand your honest hypothetical if the hypothetical is that the prop ninety nine monies are used for a special program in the public schools that not only teaches children about the dangers of smoking and suggests that tobacco is addictive and that harms this cancer and it's bad for their health all of which in fact does happen in schools your honor certainly it does in the present time those things actually happen that you are suggesting that the prop ninety nine monies would be used for for example a special portion of the program that accuses the tobacco company executives of being liars and actually errors the specific advertisements we're talking about  close nexus to those taxpayers and it's not factual commercial speech like for example the warning on the package of cigarettes and then they're supposed to compelled speech issue in your honor if we could just you know of course everyone recognizes that the first amendment it's the same for r j reynolds tobacco company as it is for every other said this and then if we were to move it to the context of for example the summit medical center case which involves abortion providers our position is that that summit correctly rejected judge carlton's reasoning below and basically said that you can't have a situation in which only abortion providers pay a certain tax and that that money is used by the state to vilify them so if we have a situation in which the state of alabama for example impose a tax only on abortion providers then used it to buy billboards that basic abortionists are child killers and had pictures of chopped up fetus those that we would consider that to be highly inappropriate and violative of the first amendment but if they did that with a general tax they could do it excise taxes you want to mean as we've indicated no you cannot use excise taxes for this purpose period that's your position to engage in and now i'm depending on how widely excise tax was imposed for example i'm not sure i fully understand whether excise taxes are only imposed on the manufacturers or what we understand that when messing around with it you don't understand it i mean you think you have this jet you have the general taxes ok excise taxes not on i know what you're talking about let me address you very directly on that your honor i'm not certain i understand how every excise tax is actually implemented but what i would say is that my general understanding is that ex are paid by manufacturers which would be a narrow group of tax payers and so my position would be that excise tax used to fund a speech by the government that vilifies that group of manufacturers whether whether it's tire manufacturers or or or our oil companies or automobile manufacturers that if we for example had an excise tax on alcohol the same on alcohol your honor if  had a excise tax on beer distributor so that basically showed photographs of beer executive sitting around laughing while they were looking at pictures of them dead teenagers in car accidents i think that would be violence of of the first amendment i would that is my position what's the difference between the cigarette tax and the cigarette and tobacco products sewer tax california that's the saying i believe that to be the same thing your honor cigarettes are subject to both the cigarette tax and i shall i say and the cigarette and tobacco products are taxed i'm sorry i didn't say it my understanding is that there is already a an excise tax on cigarettes in california and that the prop nine taxes are an additional excise tax or store tax on top of that you're saying none of that can be used in the fashion which is being used now i believe that only the prop ninety nine monies are used in that fashion i'm actually not at all sure that  not factual commercial speech and the message is that the messages are objected to by the end it's just paying the tax and so therefore all of the uses of excise taxes and alcohol tires vehicles patrolling um guns whatever anything where they raise the taxes by way of the exercise which is comes out of the manufacturing entity that's being regulated in some fashion talking about factual in other words if they go over the line are we going to import as to the government i standards the whole question of whether or not it was done with malice i don't think so you're on about i i mean once again i can't i can't be certain that i have thought that through all the way i mean i'd like to add that i think what you're asking us to do counsel is the requires that kind of analysis quite with all respect you are asking us to create in this case the ruling which is not predicated on any supreme court cases and so far addressed this issue you are analogizing from the agricultural koach cases really agricultural subsidies cases you will concede will you not that those are different from now shifting over to government speech what you want to government speech issue is the very life issue in all of those agricultural subsidies cases i know it hasn't been addressed by the supreme court because the wasn't addressed in the united foods case because the government didn't make the argument that's what you wanted but it has been addressed in the other court of appeals decisions including the charter case which has been argued before the ninth circuit and of course the livestock case the frame was before united food that is granted going that is hurt but the livestock case was not before united food certainly the government speech issue was a very like this too in the agricultural subsidies cases you have you have an understanding that any of the that comes from the cigarette tax goes to the general fund already but the cigarette tax as opposed to the p distinction earlier between the well i only read you from the state board of equalization ten cents of the cigarette tax is used for the states general fund did you know that yes your honor so you say general fund money can be used for advertising would be appropriate for them to say well if we were to set the site in your favor in this case art will raise that cigarette tax for how many pennies it takes to fund the n i can back up program and we'll use it out of the general fund but we'll find it out of the cigarette tax  respect to the facts presented by this case where we have a narrow tax paid only by by a very discrete group of people that is being used to fund speech that is not only contrary to their interest but actually vilifie them and it's not factual commercial speech about the dangers of cigarettes and that's the easiest case to run and it's also consistent with the summit decision by by the by the district of alabama that we've cited to your honor's and number of respects is highly supportive of the position that the appellants have here indicating that the issue of government speech is one that needs to take into consideration of the right of factors including the question of the underlying rationale and most importantly whether say in your brief if these ads were put out by the government out of the general fund we would not be in this court it's only because the source of the money being used to and as i understand from the district  of the minimum is the amount of money apparently that actually comes out of the back of your clients anyway for this is that you can now say our first amendment rights by this use because it's too narrow the source of the money is too narrow the government put tax the government could do these ads but they can't just use us as the source of that is what i'm saying you're out of that is consistent with the position  to direct you know our argument to the issues that we raised here at the asked that i thought i don't know that we've decided what we would want to do with respect to a possible defamation action but i don't think that our first member argument in any way if they were truthful and that isn't what i'm sorry but what i meant by factual commercial speech or on a what i meant is as the case in the case as it's non controversial speech so for example it's something that says that cigarette well i think it's controversial your honor but once again the distinction that i'm trying to draw is between paschal information about the dangers of a product as opposed to the very controversial statements about who's to blame for the health consequences of uired a great deal about the novelty of the personal mclane that is being raised here because while there is quite a growing body of case for concerning free been called upon to address three speech challenge to the funding of the government's own speech i suspect this discrepancy is not the product of happenstance but is a reflection of a widespread control to reduce the incidence of tobacco use in the state of california i read your grief it's to destroy the tobacco industry on page six california's firm commitment to eliminate tobacco use by promoting a smoke free society site seems to me that the purpose of this is to destroy the tax to back our industry i don't i don't think the purpose is to destroy the tobacco industry the purpose is to persuade the public in the state of california to either not begin to smoke or discontinue the tobacco products by eliminating smoking that legislative you're asking you're asking the companies to fund their own execution i think that's rather inflammatory characterization of that's kind of what i read from what the legislature has said we're going to make these people pay for them in order to directed at the public no i don't think tobacco industry present to persuade the public to discontinue the use of this highly dangerous product that it's good byproduct of which is to get rid of the end of story to get past immediately taking to the power to tax is the power to destroy this begins to sound to me like that well the justice marshall word is that a long time ago because we were extremely aware of the founding of the country of the power of the tyranny of the majority and if you get on somebody's bad list the power to tax can be used to destroy well the so i shouldn't be we be worried about that here i don't think we do need to be worried about that here the power to tax payer and be the power to worry about it well it's about the control program certainly can be counted as a program that has been instrumental in reducing the incidence of smoking in the state of california but there are still a large percentage of our lifesize tax on abortion providers and then they use that tax to basically attack abortion providers as baby killers the portions  just trying to convince people not to have abortions there is no doubt that government has a right to engage in speech and that is not viewpoint neutral rosenberger case makes that very clear and policy of course they cannot do so and when use their rightful level of an undue burden on a woman's acting limitations on the size of the tax that could be used for these purposes well again i think that that would bring us back into the ability to published the news again the taxing power and its extreme surely can be used as a tool to suppress speech and at a certain point it can cross that line we don't have that here in our case we have a government certainly speaking now speaking out rather forcefully but there's no allegation in thi point to you on a per pack basis i can't tell you in millions of dollars there are actually three excise taxes imposed by the state of california cigarettes and tobacco products the first is the one that you referenced tax and then even more recently there was another ballot initiative prop ten which imposed a fifty cents surtax on cigarettes in the state of california them are have strings attached to them and some of them don't but i think that what's important here is that is really profoundly irrational to create a rule of law that  one the political controls are in place regard without regard to you know part of but the whole idea of the first amendment at one level is to recognize that political control is fail under superheated moments in the majority can run off and do all kinds of crazy things and that's what the bill of rights in large measure is all about is to tell the majority we don't care what you have political controls or whatever these are things that we're simply not going to do so political controls that's what the book bill of rights in the first number was all about is the override then the when the public gets carried away with something and which we have decided which that we're not going to let the government get involved with right that rationale for differentiating between government speech and tariffs payers are not assumed to endorse the views of any particular government initiative or government official or what not enough certainly true in this particular case no one when they see the ads on television persuading the public not to smoke or questioning the particular marketing practices of the industry that speech is anything but speech by the state of notion that what the first amendment is protecting is the right of citizens to make choices about when they do and do not speak is it fair to say this is a case where the legislature in california  required the tobacco companies define an era ties in campaign against themselves is that a fair characterization of what's happening here i think that that is not quite a fair characterization used in which tobacco companies attempt to market their products and in particular market their products in ways that cross a legal line we have a growing  verdicts of what i'm doing on the part of the staff of companies including marketing to youth including lying about the harmful properties of advertising or use of funds for advertising in other industries that california engages in and alcohol while whatever guns or anything like that where the source of funds is excise and the or is targeted to a narrow segment of source and the fact saying that the state could be called to account for non factual use of those money would be implicated by our decision that's a very good question and it's certainly a question that troubled me  the argument to my knowledge the answer is no then that there is no program in california that can be considered on all fours with the media campaign run by the california department of health services however as the court would be aware from the four amicus letters received by four other states within the ninth circuit i state officials have weighed in and expressed concern about the potential applique ition to their programs i'm not here to represent that i know any of the details even on controversial issues without regard to the specifics of the funding mechanism for speech such activity does not implicate much less violate the first amendment and we ask you have two minutes to respond thank you this is a very unique case there's no other government program like this in any other state and i don't believe there's ever been a program like this in the entire history of our government's speech doctrine raises profound questions concerning the appropriate role of government in a liberal society and quote they are very profound considerations and when your honour's asked a question of the of the government well are are you really imposing a tax in the tobacco companies to force them to fund speech against themselves the answer truly was yes that is what's happening you keep telling us that so long  the money comes out of the general fund they can do exactly what they're doing so now you're into content and tracing are you not going to say that you have to substitute the money to pay for these adds to the general fund and some of the cigarette excise taxes go into the general fund you still have a cline i believe now that i thought about it more carefully and i think the answer is no and i think the reason for distinction is one first of all the tracing issue is acknowledged in all of the cases the agricultural subsidies cases and of course the standard case so that is a relevant consideration but the other one is that once money is in the general fund i believe that the democratic considerations about the political process and the different groups in the society trying to say well the money should be spent for x rather than for y that that that ends up being controlling but in civil just so i understand where you're going with that if the surcharge the twenty five cents per pack words or whatever percentage of it five cents is now shifted over to another excise tax against the tobacco companies and in that excise tax doesn't go into a segregated funding goes into the general fund and from that general fund the money will fully understood and still is going to replace  surtax that we've now held it can't be used you're ok with that so long as it goes through the general fund i think the answer is yes as long as it's not a trick or not in a wink i think the answer is yes that the money in the general fund would take us into the state of cases that say general taxpayer doesn't have the ability to the top of the government speech and it will generate money