United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 3, 2006
Charles R. Fulbruge III
Clerk
No. 03-30523
PELTS & SKINS, LLC
Plaintiff - Appellee,
v.
WILLIAM DWIGHT LANDRENEAU, Secretary for the Department of
Wildlife and Fisheries,
Defendant - Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, BENAVIDES, and CLEMENT, Circuit Judges.
BENAVIDES, CIRCUIT JUDGE:
Our previous opinion in this case held that Louisiana’s
alligator marketing program created an unconstitutional compelled
subsidy for private speech. Since then, the United States Supreme
Court issued an opinion clarifying when marketing programs like the
one at issue are government speech exempt from First Amendment
scrutiny. See Johanns v. Livestock Mktg., Assoc., 544 U.S. 550,
__; 125 S. Ct. 2055, 2063 (2005). Johanns held that the key
inquiry is the “degree of governmental control over the message.”
Id. Speech constitutes government speech when it is “effectively
controlled” by the government. Id. at 2062.
Neither this Court, the district court, nor the parties had
the benefit of this now-governing standard. At this time, we
cannot apply the new standard, given that the record does not
contain sufficient evidence of control or lack thereof.
Accordingly, we VACATE and REMAND for the district court to allow
the parties to develop and present evidence with respect to the new
standard and to allow the district court to assess in the first
instance the extent of governmental control over the speech at
issue.
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