A federal appellate court ruled... that the federal beef checkoff program violates the First Amendment rights of American beef farmers and cattle ranchers...

Beef Checkoff: It’s What’s Unconstitutional

A federal appellate court ruled unanimously Tuesday 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 decision by the three-judge panel of the U.S. Court of Appeals for the 8th Circuit affirmed an earlier federal trial court ruling in South Dakota that likewise concluded the program was unconstitutional.

The Livestock Marketing Association, Western Organization of Resource Councils and several individual cattle producers brought the challenge and argued that forcing farmers and ranchers to pay for marketing campaigns, such as the "Beef, It’s What’s for Dinner" commercials, violated their First Amendment rights by compelling not only their association, but their speech as well. The U.S. Department of Agriculture countered that the mandatory assessments were constitutionally sound because the resulting promotional speech amounted to "government speech," and "[t]he government is constitutionally entitled to engage in its own speech without implicating the First Amendment."

In striking down the beef checkoff, the appeals court ruled that the "program, is in all material respects, identical to the mushroom checkoff program" invalidated by the U.S. Supreme Court in United States v. United Foods, Inc., 533 U.S. 405 (2001). Since the appellate "court [wa]s duty-bound to reconcile and apply the precedents of the Supreme Court," the judges concluded "that the government’s interest in protecting the welfare of the beef industry by compelling all beef producers and importers to pay for generic beef advertising is not sufficiently substantial to justify the infringement on [the challengers’] First Amendment free speech right."

The court also noted numerous problems with the "government speech" argument. The farmers and ranchers "in the present case are challenging the government’s authority to compel them to support speech with which they personally disagree," the judges wrote. "[S]uch compulsion is a form of ‘government interference with private speech" not the government speaking for itself. Moreover, "a determination that the expression at issue is government speech does not preclude First Amendment scrutiny in the compelled speech context," the court explained. In other words, "the government speech doctrine does not provide immunity for all types of First Amendment claims."

The decision struck down the entirety of the beef checkoff program because, according to the court, "no remaining aspects of the Act can survive" when the "‘principal object’ of the Beef Act is the very part that makes it unconstitutional." The ruling will apply to all farmers, ranchers, and importers who pay mandatory assessments because the court’s ruling was "not limited solely to the plaintiffs in the present case."

Nevertheless, cattlemen can’t stop paying the mandatory $1-per-head assessments just yet. As a part of the decision, the Eighth Circuit preserved a stay pending a final mandate in the case. Given the split in authority nationwide concerning the constitutionality of agricultural commodity checkoff programs, it is likely the case will be appealed to the U.S. Supreme Court.

The ruling provides the latest ammunition for the Charters – who are being represented by the Center for Individual Freedom – in their own constitutional challenge to the federal beef checkoff program. The Charters’ case is currently pending the U.S. Court of Appeals for the 9th Circuit. If that court rejects the reasoning of the Eighth Circuit and decides, instead, that the beef checkoff passes constitutional muster, then the U.S. Supreme Court could be faced with the resulting conflict.

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