Beef: It’s What’s in Our Courts

Beef, it’s not just "what’s for dinner" these days. Beef is the main entrée in courtrooms throughout the country, from the highest in the land to the rogue Ninth Circuit.

The Center for Individual Freedom received notice this week that oral arguments have been scheduled before the U.S. Court of Appeals for the 9^th Circuit in Charter, et al. v. USDA, et al., a case challenging the constitutionality of the beef checkoff program. The Center is participating in representation of the Charters and hundreds of other independent cattle ranchers who oppose the per-head charge on cattle to pay for promoting beef consumption. In briefs filed with the Ninth Circuit, we argue that 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 Charter case is on appeal from a November 1, 2002, ruling by U.S. District Judge Richard Cebull in Billings, Montana, upholding the constitutionality of the beef checkoff program. In his holding, Judge Cebull held that: "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."

Oral arguments before the Ninth Circuit will be heard in Seattle, Washington, on March 31, 2004, just three days shy of the one year anniversary of the filing of the case before this court. It is unclear how soon (or long) after arguments the court will issue its opinion.

The timing of the Ninth Circuit’s ruling may be impacted by another beef case, this one being considered at the United States Supreme Court. Last week, government lawyers, on behalf of the Secretary of Agriculture, the U.S. Department of Agriculture and the Cattlemen’s Beef Promotion and Research Board, filed a Petition for Writ of Certiorari with the Supreme Court to review an opinion of the U.S. Court of Appeals for Eighth Circuit. Last July, a three-judge panel of the Eighth Circuit ruled unanimously that the federal beef checkoff program violates the First Amendment rights of American beef farmers and cattle ranchers by compelling them to pay for generic advertising with which they disagree. The federal appellate court ruling affirmed an earlier federal trial court ruling in South Dakota that likewise concluded the program was unconstitutional.

The petition in Veneman v. Livestock Marketing Association should be considered at the April 16, 2004, conference of the Justices, with a grant or denial decision expected on April 19, 2004. If granted, the case would be on the Court’s OT ’04 calendar, which commences this fall.

What’s impossible to predict is whether the Supreme Court’s docket will impact the Ninth Circuit’s consideration in the Charter case. Multiple scenarios are possible, including whether the Ninth Circuit will hold oral arguments at the end of March but then opt not to rule until after the Supremes decide certiorari in the LMA case.

Despite the similarities in the beef cases, one critical difference exists. Inasmuch as the opponents of the checkoff program argue in both cases that the pro-beef messages cannot be characterized as government speech, in the Charter case we go one step further and argue that even if the speech were government speech it would still be subject to the same First Amendment standards that preclude the coerced support of certain private speech.

That issue raises the distinct possibility that no matter the outcome, a ruling by the Ninth Circuit will likely be appealed to the U.S. Supreme Court. Whether it goes up on its own or as a motion to consolidate with the LMA case depends on whether certiorari is granted in LMA.

Spring, typically a busy time on the farm, will be a busy time in the courts as well for the cattle ranchers.

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