On April 3, attorneys for Montana cattle ranchers Jeanne and Steve Charter, in conjunction with more than 100 independent beef producers and the Center for Individual Freedom, filed a brief in the U.S. Court of Appeals for the 9th Circuit in the ongoing lawsuit over the constitutionality of the mandatory beef promotion program, responsible for messages such as: "Beef. It's what's for dinner."
The case is on appeal from a federal district court in Billings, Montana, which last year upheld the controversial program under a novel decision that characterized the pro-beef messages as "government speech," akin to "Join the Army" or "Buckle Up." That ruling shocked and dismayed many beef producers who support an independent beef industry and have long been told by checkoff proponents that their mandatory assessments of a dollar-per-head of cattle sold are to fund a "producer-driven, producer-funded" "self-help" program.
The Montana district court's decision is the first ever to hold that an agricultural promotion program is the government speaking and that compelled support for that speech was immune from First Amendment scrutiny. The legal brief filed with the 9th Circuit argues that both the reasoning and the result of that decision are in error and, if allowed to stand, it will create a vast loophole in the First Amendment and render meaningless several well-established lines of First Amendment case law.
"[A]ny so-called 'government speech' doctrine must be limited to speech that is (1) attributed to the government rather than to some third party so that the audience knows that it is the government speaking, and (2) it must be paid for by general government revenues..." writes Erik S. Jaffe, lead attorney for the plaintiffs. "Furthermore, regardless of how it is defined, even government speech does not receive a free pass under the First Amendment. Rather, programs compelling support for government speech should be scrutinized under the same standards as government-compelled support for all other speech or, at minimum, under standards that ensure enhanced political checks on such speech."
The "government speech" defense of agricultural commodity promotion programs comes as a result of the U.S. Department of Agriculture (USDA) and the National Cattlemen's Beef Association (NCBA) having to switch legal gears in the wake of the Supreme Court striking down the federal mushroom promotion program in United States v. United Foods, Inc. In that case, the Court ruled: "Just as the First Amendment may prevent the government from prohibiting speech, the First Amendment may prevent the government from. . . compelling certain individuals to pay subsidies for speech to which they object."
America's farmers and ranchers are forced to pay hundreds of millions of dollars annually to mandatory assessment programs, or checkoffs, for so-called "generic" advertising. The twelve largest commodity promotion boards spend more than $700 million per year of hard-earned producer money. While some courts have held these types of mandatory checkoff programs violate the First Amendment, others have allowed the programs to continue.
Last year, a federal judge in South Dakota declared the Beef Act unconstitutional, soundly rejecting the USDA and NCBA's government speech argument. That case is on appeal in the U.S. Court of Appeals for the 8th Circuit. Similarly, the U.S. Court of Appeals for the 6th Circuit is reviewing a Michigan decision which struck down the pork checkoff. More recently, the U.S. Court of Appeals for the 9th Circuit ruled that California's grape checkoff program unconstitutionally violated the free speech rights of growers. And, a federal judge in Washington state this week struck down that state's apple checkoff.
Meanwhile, a federal district court in Pennsylvania has upheld the $250 million per year dairy promotion program, arguing that the checkoff is part of a larger collective marketing program in which the objectors had given up their market autonomy. This despite the fact the plaintiffs in the case, Joseph and Brenda Cochran, are independent dairy producers who do not belong to a cooperative marketing agreement, have a unique production and distribution system and have strenuous First Amendment objections to being forced to fund advertisements with which they disagree.