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Beef Checkoff Ruled Government Speech

"...checkoff proponents will now be forced to abandon
all pretense that the checkoff is a ‘producer-driven, producer-funded’,
‘self-help’ program
”...

 


 

 


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FOR IMMEDIATE RELEASE

CONTACT: Eric Schippers
703.535.5836

November 5, 2002

FEDERAL JUDGE RULES BEEF CHECKOFF IS 'GOVERNMENT SPEECH'

Program Sold as 'Self Help' Becomes Government Puppet Show

ALEXANDRIA, 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."

On 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."

"Claiming 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.

"Apparently 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."

Erik 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 Amendment.

"Even 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 perverse result."

Filed 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.

While 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."

On 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."

The 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.

Attorneys for the Charter family and the Center for Individual Freedom are preparing to file a motion to stay Judge Cebull's decision pending appeal.

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[Posted November 15, 2002]