Dissenting.
To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.1
*1143Thomas 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 government, in its role as steward of the public’s general welfare, can mount a vigorous public campaign against smoking and the tobacco industry, and that it can do so with general tax revenues and by way of “government speech;” but can government do so using this particular compulsory funding mechanism? Today the target of government dislike is smoking, but tomorrow it will be something else, such as Alabama’s imposition, in its the Woman’s Right to Know Act, of a fee applied to abortion providers for the production by the state of pro-childbirth materials which the providers did not wish to endorse, much less purchase. See Ala. Code §§ 26-23A-1 to 13; Summit Medical Center of Alabama, Inc. v. Riley, 284 F.Supp.2d 1350 (2003). Who knows whose disfavored ox or whose industry or business or lifestyle will be the next to be fatally gored in this manner by a well-intentioned government.
Moreover, hanging over this controversy like a blinking yellow light in the constitutional sky is Chief Justice Marshall’s timeless admonition in M’Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819), that “the power to tax is the power to destroy.” This warning is not only memorable, but it reminds us that might, especially in the hands of government, does not always make right.
There appears no doubt that California’s goal is to destroy the industry singled out for this targeted and exclusive tax. Although an earnest deputy attorney general denied this lethal purpose during oral argument, claiming that the Act’s only purpose was to inform the public, her boss, the Attorney General of California William Lockyer, forthrightly said differently after the hearing. Attorney General Lockyer, who took the unusual step of attending the argument himself, is quoted by the Los Angeles Daily Journal as calling the tobacco companies “merchants of death” and agreed that the ad campaign aimed to put them out of business. He added that “the democratic process will provide a check on the use of taxes to fund such messages. Elected officials are responsible for appropriating the money.... If voters don’t like the message, they can oust the messenger.” 3 Query.
So this is the issue: can government, consistent with the First Amendment’s right against the abridgment of free speech, create a public information pro*1144gram against an industry funded by a targeted excise tax imposed solely upon that industry and which is segregated in a special state health education account? Not surprisingly, in our system which values not just good goals but also the right process, the question here is not ends, but means.
DISCUSSION
First Amendment Claim
1. Government and Compelled Speech
The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.... ” U.S. Const, amend. I. It is axiomatic that “£j]ust as the First Amendment may prevent the, government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views ... or from compelling certain individuals to pay subsidies for speech, to which they object.”4 United States v. United Foods, 533 U.S. 405, 410, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001). In United Foods, the latest in a series of compelled assessments cases, the Supreme Court held that government’s forced assessments of mushroom producers, which funded advertisements promoting mushroom sales, violated the First Amendment. Relying primarily upon United Foods, appellants assert that California’s targeted tax, which funds anti-industry advertisements, violates their right against compelled financing of speech.
By labeling the anti-tobacco advertisements “government speech,” the majority concludes that the targeted tax is clear of First Amendment concerns. I respectfully disagree. Though the Supreme Court has embraced the existence of a “government speech” doctrine in this general context, United Foods, 533 U.S. at 417, 121 S.Ct. 2334, the Court has not provided a clear explanation of the reach or proper application of the doctrine. The appellants assert that the central question is the source of the funding for the particular speech, contending that a targeted tax on a particular group to fund speech opposed to by that group constitutes unconstitutional compelled speech. Ultimately, the State’s argument that the First Amendment’s protections against compelled speech can be avoided by finding that the speech is spoken by the government is at odds with the force and logic of controlling authority.
2. Government Speech
' Focusing on the Supreme Court’s brief reference to the government speech inquiry in United Foods, and the Court’s discussion of government speech in other contexts, see, e.g., Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), the State asserts that the government is free from First Amendment concerns “when the state is the speaker.” Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995).5 Specifically, the *1145State asserts that because the speech at issue is not explicitly attributed to appellants, the free speech concerns of traditional compelled speech cases, see, e.g., Wooley, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752, are absent. Moreover, the state asserts that the source of the State’s funding for its speech as irrelevant to the question of the constitutionality of the particular speech.
The State’s arguments, however, are not consistent with the trajectory and force of the Supreme Court’s recent compelled speech jurisprudence. Specifically, the State’s framework ignores the central lesson of United Foods: in that case, the Supreme Court reigned in its previous pronouncements in Glickman v. Wileman Bros. & Elliott, 521 U.S. 457, 476, 117 S.Ct. 2130, 138 L.Ed.2d 585 (1997) that coerced government speech is akin to economic regulation and not entitled to First Amendment protection. See Glickman, 521 U.S. at 476, 117 S.Ct. 2130. Instead, the United Foods Court propounded a broad constitutional protection against compelled contributions for commercial speech. See United Foods, 533 U.S. at 414, 121 S.Ct. 2334. Indeed, applying United Foods, one court has held that the issue of government speech, which generally involves the state’s power to control the content of its speech, is fundamentally different from the “government’s authority to compel [plaintiffs] to support speech with which they personally disagree; such compulsion is a form of ‘government interference with private speech.’ ” Livestock Marketing Ass. v. USDA 335 F.3d 711, 720 (8th Cir.2003) (holding compelled contributions in beef promotion violated First Amendment) (certiorari granted in part by Veneman v. Livestock Marketing Ass’n, — U.S. -, 124 S.Ct. 2389, 158 L.Ed.2d 962 (U.S. May 24, 2004) and Nebraska Cattlemen, Inc. v. Livestock Marketing Ass’n, — U.S. -, 124 S.Ct. 2390, 158 L.Ed.2d 962 (U.S. May 24, 2004)). As Justice Thomas stressed in concurrence, “[a]ny regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny.” United Foods, 533 U.S. at 419, 121 S.Ct. 2334 (Thomas, J., concurring). Finally, the State’s argument necessarily relies on an untenable distinction between government speech activities paid directly from the government treasury, or coordinated by traditional government agencies, and those that are coordinated by more complex regulatory organizations and schemes, even when such schemes are funded and run by the government. As one commentator has noted, “[government speech cannot logically be made a function of the office of the person making the allocation decision. That approach would elevate form over substance and would enable the government to dictate the First Amendment result simply by manipulating the agency in the decision-making process.” Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 Iowa L.Rev. 1377, 1430 (2001).
Accordingly, recognizing the principle expressed in United Foods, the appellants clearly have a First Amendment interest at stake that is not erased by pigeonholing the ads as “government speech.” The question remains, however, whether the compelled speech does indeed violate appellants’ free speech rights, an analysis that is governed by the Supreme Court’s compelled speech line of cases, including Abood, Keller, Glickman, and United Foods.
*11463. Compelled, Speech
Appellants rely on the string of cases, beginning with Abood, concerning compelled contributions to speech, and assert that there exists the fundamental principle that, under the First Amendment, a discrete group should not be specifically taxed to fund speech with which they disagree. Indeed, this proffered principle provides a coherent picture of the puzzle with which courts have been struggling. See, e.g., Summit v. Medical Ctr. of Al. v. Riley, 284 F.Supp.2d 1350, 1360 (holding that state’s imposition of “a direct fee assessment on a limited class of citizens— abortion providers — and using the revenue to advance speech in support of the State’s favored policy position on abortion” intruded on abortion provider’s free speech rights) (emphasis added); United States v. Frame, 885 F.2d 1119 (3d Cir.1989) (“[W]here the government requires a publicly identifiable group to contribute to a fund earmarked for the dissemination of a particular message associated with that group, the government has directly focused its coercive power for expressive purposes.”) (citation omitted) (emphasis added). The United Foods Court announced that the “question is whether the government may underwrite and sponsor speech with a certain viewpoint using special subsidies exacted from a designated class of person, some of whom object to the idea being advanced.” United Foods, 533 U.S. at 410, 121 S.Ct. 2334. And in United Foods, the Court answered: No. Id. at 411, 121 S.Ct. 2334.
In answering the question, however, the Court was forced to distinguish another recent compelled speech case, Glickman, which was factually similar to United Foods, but where the Court had found that no First Amendment issues were raised by the forced subsidies. 521 U.S. at 460, 117 S.Ct. 2130. In Glickman, the Court determined that “criticisms of generic advertising provide no basis for concluding that factually accurate advertising constitutes an abridgement of anybody’s right to speak freely.” Id. at 474, 117 S.Ct. 2130. The United Foods Court distinguished Glickman by asserting that the program in Glickman “mandated assessments for speech [which] were ancillary to a more comprehensive program restricting marketing autonomy.” United Foods, 533 U.S. at 411-12, 121 S.Ct. 2334.
Thus, after distinguishing Glickman, and finding that First Amendment interests were at stake, the Court proceeded to apply the tenets established in Abood and Keller, which established the “germaneness test.” United Foods, 533 U.S. 405, 413, 121 S.Ct. 2334. That test requires any coerced subsidized speech be germane to the larger purpose of the association at issue. Abood, 431 U.S. at 235, 97 S.Ct. 1782 (holding that union can only finance speech not germane to collective bargaining with non-objecting members’ funds); Keller, 496 U.S. at 13-14, 110 S.Ct. 2228 (holding that state bar association can only compel payment for activities related to bar’s purposes).6
*1147Guided by Glickman and United Foods, and looking at the statutory scheme provided in the Act, it is clear that the tobacco companies are not similarly situated to the tree growers in Glickman, as they are not “bound together and required by statute to market their products according to cooperative rules” for purposes other than advertising or speech. United Foods, 533 U.S. at 412, 121 S.Ct. 2334. Nor is the statutory scheme directly congruous with that in United Foods, as the ads in this case are a part of a larger regulatory scheme, and thus not clearly “a program where the principal object is speech itself.” Id. at 415, 121 S.Ct. 2334. Thus, the Act is different from both the statute analyzed in United Foods and the statute in Glickman. Moreover, the fact that the speech at issue involves, not the promotion of the relevant group’s product, but the disparagement of the entire industry, only increases the difficulty of resolving this case.
Given the unique nature of the question presented, proper review of the Act must acknowledge United Foods’s obvious retreat from Glickman, and the Court’s pronouncement of broadened protection against compelled speech. In this regard, as the appellants assert, United Foods and the Court’s previous compelled speech case law can be reconciled and understood by applying what United Foods explicitly stated: the First Amendment forbids certain compelled assessments from “a particular citizen, or a discrete group of citizens, to pay special subsidies for speech.” 533 U.S. at 411, 121 S.Ct. 2334.
As the Third Circuit recently explained, however, though a case may be properly characterized as a compelled speech case, “[t]he Supreme Court ... has left unresolved the standard for determining the validity of laws compelling commercial speech.... ” Cochran v. Veneman, 359 F.3d 263, 277 (3rd Cir.2004). In Cochran, the court also explained that there are several standards available which the courts may try to apply: 1) the lenient standard derived from commercial speech cases, see, e.g., Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 564, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), or some adaptation of that; commercial speech standard, see, e.g., Livestock Marketing, 335 F.3d at 722-23; 2) the “germaneness test” of traditional compelled speech cases, see, e.g., Abood, 431 U.S. at 235-36, 97 S.Ct. 1782, and 3) the stringent standard of associational cases, see, e.g., United States v. Frame, 885 F.2d 1119 (3rd Cir.1989).
The speech and the funding mechanism in this case is questionable under whatever standard one uses. In Central Hudson, the Court held that commercial speech is to be evaluated using intermediate scrutiny. That is, 1) the state must “assert a substantial government interest;” 2) “the regulatory technique must be in proportion to that interest;” and 3) the incursion on commercial speech “must be designed carefully to achieve the State’s goal.” 447 *1148U.S. at 564, 100 S.Ct. 2343. Under this standard, though never before applied to compelled commercial speech cases,7 the speech regulation at issue, and the targeted tax placed on appellants, constitutes a disproportional and overly burdensome regulatory technique, thereby failing the second and third prongs of the Central Hudson test. Indeed, the speech in this case is exceptional in its difference from what the Court has previously encountered in its compelled commercial speech cases. Whereas previous cases generally involve promotional activity, see, e.g., Glickman, 521 U.S. at 474, 117 S.Ct. 2130; United Foods, 533 U.S. at 413-14, 121 S.Ct. 2334, here, California is specifically targeting one discrete and largely disfavored group, forcing that group to meet the State’s regulatory goals by directly financing speech designed to undermine that group’s status and reputation. Though the State’s goals may be strong and laudatory, the methods used seriously undermine the particular group’s speech rights and seem disproportional to the goals to be achieved. Accordingly, the Act cannot survive Central Hudson’s intermediate scrutiny.
Moreover, as did the Sixth Circuit in Michigan Pork Producers Ass’n, Inc. v. Veneman, 348 F.3d 157 (6th Cir.2003), I “find inapplicable to this case the relaxed scrutiny of commercial speech analysis.... ” Id. at 163 (citing Glickman, 521 U.S. at 474 n. 18, 117 S.Ct. 2130 (questioning whether “the Central Hudson test, which involved commercial speech should govern a case involving the compelled funding of speech”)). The speech in this case is materially different from the speech issuing from the private sector that we normally label as commercial.
Applying the “germaneness test” derived from Abood and its progeny, the compelled speech here would also fail. The Supreme Court expressly applied this test in United Foods, and found that “the expression respondent [was] required to support [was] not germane to a purpose related to an association independent from the speech itself.” United Foods, 533 U.S. at 415-16, 121 S.Ct. 2334. Of course, as previously explained, there is no relevant association of tobacco companies for purposes of this analysis. As the Court stressed in United Foods, the question is not whether the State necessarily has a larger regulatory purpose justifying the speech, but whether there is a “cooperative marketing structure ... to sustain an ancillary assessment” for speech. Id. Here, as in United Foods, there is no collective association to which the compelled assessments for speech is germane.
Finally, as in Frame, a pre-Glickman and pre-United Foods case, the Third Circuit applied the stringent associational rights standard of Abood, but upheld the constitutionality of the beef regulatory statute in question because of the compelling state interest involved. Frame, 885 F.2d at 1134. In refusing to extend Frame’s reach after United Foods, however, the same court held in Cochran that United Foods established that “promotional programs ... seem really to be special interest legislation on behalf of the industry’s interests more so than the government’s[,]” and therefore constitute unconstitutional compelled speech for those dissenting from the promotions. 359 F.3d at 279.
*1149What has survived from Frame is the principle that in the review of a compelled financing statute’s intrusion into free speech rights, “it is relevant to consider ‘the coerced nexus between the individual and the specific expressive activity.’ ” Summit, 284 F.Supp.2d at 1360 (quoting Frame, 885 F.2d at 1119). Here, the nexus is vital: unlike a situation in which money is allocated from the general treasury fund, individuals who have specifically been targeted by the speech are forced to pay for the speech. See id.
4. Conclusion
In sum, review under any of the available standards reveals that the compelled assessments in this case constitute an exceptional case of government intrusion on the right not to be compelled to finance speech. Indeed, the Act is designed to force one particularly disfavored group to fund speech directly undermining that group’s reputation. Such state action offends the very essence of the First Amendment. See e.g., Sons of Confederate Veterans v. Comm’r of the Va. Dept. of Motor Vehicles, 305 F.3d 241, 242 (4th Cir.2002) (“[T]he First Amendment was not written for the vast majority.... It belongs to the minority of one.”) (Wilkinson, C.J., concurring in denial of rehearing en banc).
Moreover, the State can provide no limiting principle, no logical reason why, if the government is free to tax and speak in this manner against this group, it cannot do so against any other disfavored group or individual. See Summit Medical Ctr. of Alabama, 284 F.Supp.2d, at 1361 (refusing to apply the district court’s analysis in this case, and finding that Alabama’s statute forcing abortion providers to pay for the state’s informational materials infringes plaintiffs’ First Amendment rights). Contrary to the Attorney General’s claim that the democratic process will provide a check on the use of taxes to fund such messages, by removing the burden of the cost of this program from every taxpayer except the ones targeted, this tax becomes the ultimate cheap shot, one not fully subject to the considerations that normally attend the decision to require the public at large to pay for something. See Board of Regents v. Southworth, 529 U.S. 217, 229, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000) (traditional political controls ensure responsible government).8 Furthermore, the approach I take does not hinder or unduly burden the State’s right or power to speak, and it does not interfere with the imposition of excise or other taxes. It simply requires the government when doing so to stay within normal channels and to avoid First Amendment violations. Under the reasoning and force of the Supreme Court’s compelled speech eases, particularly the Court’s recent pronouncements in United Foods, I respectfully believe the majority’s argument, although well presented and articulated in their opinion, is without merit.
. See, e.g., Abood v. Detroit Bd. of Education, 431 U.S. 209, 235 n. 31, 97 S.Ct. 1782, 52 *1143L.Ed.2d 261 (1977).
. Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).
. Los Angeles Daily Journal, Tuesday, May 11, 2004, "Court revisits anti-smoking ad campaign.”
. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) provides an often quoted passage regarding the extension of free speech protections to those who wish not to speak: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or. act their faith therein.” Id. at 642, 63 S.Ct. 1178.
. I note that the State also supports its position with general pronouncements made by the Court in its compelled assessments of speech cases indicating that the proper functioning of government requires the government to have control over the nature and content of its speech. See, e.g., Keller v. State Bar of California, 496 U.S. 1, 12-13, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990) ("Government officials are expected as part of the democratic process to represent and espouse the views of a majority of their constituents.... If every citizen were to have a right to insist that no *1145one paid by public funds to express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it would be radically transformed.”)
. I note that the district court's decision relied on the question of association and stressed the non-associational nature of the tobacco industry being taxed, thereby distinguishing the Abood line of cases. Those cases stressed that there exists “a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's 'freedom of belief.' " Glickman, 521 U.S. at 471, 117 S.Ct. 2130 (quoting Abood, 431 U.S. at 235, 97 S.Ct. 1782). The district court found that because the appellants subject to the surtax were not members of a particular association, their free speech rights were not undermined by any compelled financing of speech made on behalf of that association. This finding is also supported by some of the Court’s language in United Foods, where it noted that there is "a threshold inquiry ... whether there is some state imposed obligation which makes group membership less than voluntary; for it is only the overriding associational purpose which allows any *1147compelled subsidy for speech in the first place.” United Foods, 533 U.S. at 413, 121 S.Ct. 2334. However, hinging the right to be free from compelled commercial speech on whether there is an associational interest at stake ignores the obvious fact of what the Court actually did in United Foods. Indeed, the Court not only found that the compelled subsidies constituted an unconstitutional infringement on the dissenting mushroom grower's speech rights, but it did so after expressly distinguishing Glickman on the grounds that there was no "regime of cooperation” as presented in Glickman. Id. at 415, 121 S.Ct. 2334. Therefore, though the Court saves some of its associational rights rhetoric, the practical effect of its decision in United Foods is to unhinge its compelled speech analysis from the previously-pronounced requirement that there be an involuntary group membership.
. I note, in this regard, that the Supreme Court in United Foods refused to apply the Central Hudson test because the "Government itself [did] not rely upon Central Hudson to challenge the Court of Appeals' decision." 533 U.S. at 410, 121 S.Ct. 2334. Accordingly, other courts have recognized that the Central Hudson test has never been applied by the Supreme Court to compelled assessment of commercial speech cases. See Cochran, 359 F.3d at 277.
. In Michigan Pork Producers Ass’n v. Veneman, 348 F.3d 157 (6th Cir.2003), one significant factor in the court's determination that the speech involved was not government speech was that the funding did not come from general tax revenues. Id. at 162. See also Livestock Marketing Ass’n, 335 F.3d at 720 (the flaw in. the government speech argument is that the plaintiffs funds were identifiable as the funds used to finance the speech to which they objected).