JUDGE RULES BEEF CHECKOFF IS 'GOVERNMENT SPEECH'
Sold as 'Self Help' Becomes Government Puppet Show
Va Abandoning the notion that the beef checkoff is a "self-help"
program, the Cattlemen's Beef Promotion and Research Board and the
National Cattlemen's Beef Association (NCBA) have temporarily staved
off one of a number of challenges to the beef checkoff by persuading
a federal court that the program is, in fact, "government speech."
November 1, U.S. District Judge Richard Cebull in Billings, Montana
ruled in Charter v. USDA: "The federal government created and controls
the beef checkoff program....Because the government may utilize
private speakers to disseminate content-oriented speech, the [Beef]
Act does not violate the rights of free speech or association."
that the USDA, rather than beef producers, calls the shots and promotes
its own governmental message rather than the private message of
the beef industry, checkoff proponents will now be forced to abandon
all pretense that the checkoff is a 'producer-driven, producer-funded',
'self-help' program, as well as the pretense that they support an
'independent' beef industry," said Eric Schippers, Executive Director
of the Center for Individual Freedom.
checkoff proponents believe that keeping the spigot of checkoff
dollars flowing is worth converting the industry into both a ward
and a tool of the government, to be used as it sees fit. This idea
of 'government-as-puppet master' will no doubt come as a shock to
the many independent-minded cattlemen who originally supported the
checkoff," stated Schippers. "In fact, this decision may be the
checkoff's ultimate undoing."
Jaffe, attorney for the Charter family, stated: "We are certainly
disappointed with the court's acceptance of the government speech
defense, but since that defense of checkoff programs has never been
accepted by any appellate court, we are hopeful that the Ninth Circuit
Court of Appeals will reach a result more consistent with the First
if the speech occurring here were government speech," said Jaffe,
"our view is
that it would still be subject to the same First Amendment standards
that preclude the coerced support of certain private speech. To
hold otherwise would effectively destroy several well-established
lines of cases and turn the First Amendment on its head by rewarding
especially intrusive government control over private speech with
less, rather than more, constitutional scrutiny. We do not think
that the Circuit Courts or the Supreme Court will condone such a
by independent Montana cattle ranchers Steve and Jeanne Charter,
with support from the Center for Individual Freedom, the suit follows
the June 25, 2001 ruling by the U.S. Supreme Court in United States
v. United Foods that it violates the First Amendment for the government
to compel mushroom producers to pay for generic industry advertising.
recognizing that the mushroom checkoff and beef checkoff are materially
indistinguishable, Judge Cebull broke new ground in determining
the beef promotion program to be an extension of the government's
own speech through the use of "private speakers."
June 21, 2002, a federal judge in South Dakota declared the Beef
Act unconstitutional, soundly rejecting the USDA and Beef Board's
novel government speech argument. That case is on appeal. Similarly,
last week a federal judge in Michigan struck down the pork checkoff.
Rejecting the government speech argument, Judge Richard Alan Enslen
ruled: "The government has been made tyrannical by forcing men and
women to pay for messages they detest. Such a system is at the
bottom unconstitutional and rotten."
beef checkoff program -- which collects more than $80 million annually
-- is paid for by an assessment on beef producers of $1 per head
of cattle sold. The program, enacted by Congress, has become increasingly
controversial as independent ranchers have challenged the large
waste of money, diversion of funds for inappropriate purposes, and
advertising that benefits giant corporate packing houses and retailers
at the expense of independent producers.
for the Charter family and the Center for Individual Freedom are
preparing to file a motion to stay Judge Cebull's decision pending