Finishing out the briefing schedule, the Center filed a reply brief before the Ninth Circuit Court of Appeals in Charter, et al. v. USDA, et al., a case challenging the constitutionality of the beef checkoff program.  On behalf of the Charters and hundreds of other independent cattle ranchers, the Center's brief argues that the per-head charge on cattle to pay for promoting beef consumption, known as the checkoff program, violates the First Amendment rights of the Charters and others who oppose being forced to support speech that is directly contrary to their views and interests.

The completion of the briefing schedule is the latest action in the appeal of a ruling made last year by a U.S. District Court judge in Billings, Montana, upholding the controversial program under a novel decision that characterized the generic pro-beef messages as "government speech." 

The Ninth Circuit's decision hinges on that critical question:  the extent of the government's role in marketing and promotion.  USDA, recognizing that the sky is falling since United Foods, tries to make the argument that the checkoff program is government speech, much like the government's military recruitment ads like "Join the Navy and See the World," and therefore not subject to First Amendment scrutiny.  The Center's brief counters that Congress, the beef industry, and the Beef Board itself always have understood the beef checkoff to be a "self-help" program for the beef industry and that it can hardly be characterized as government speech when such speech is generated exclusively by cattle ranchers, paid for exclusively by cattle ranchers, and attributed explicitly and exclusively to cattle ranchers.  Alternatively, the brief argues that "[i]f this is government speech, then it is a First Amendment nightmare:  a government agency engaging in domestic propaganda and disinformation while hiding behind the façade of cattle ranchers and forcing those ranchers to pay for the 'privilege' of being a beard for the USDA."

Oral arguments will likely be scheduled for late this fall, long after millions more checkoff dollars are spent by the National Cattlemen's Beef Association on its new advertising campaign designed to correct some misconceptions people have about beef's image as a high-fat, poor-nutrition food.  It is reported that over the next several months, approximately $1.7 million will be used running the ads in 23 publications, including Family Circle, Bon Appetit, Golf and Men's Health.  The twelve largest commodity promotion boards spend more than $700 million per year of hard-earned producer money for so-called "generic" advertising.

To download a copy of the Center's Reply Brief, click here.