The cows have come home. After years of numerous lawsuits in the lower courts, the U.S. Supreme Court will decide this term whether farmers and ranchers can be forced to pay for generic advertising under so-called checkoff programs. The case, Veneman v. Livestock Marketing Association, is on appeal from the U.S. Court of Appeals for the Eighth Circuit and challenges the beef checkoff program, which pays for the "Beef: Its Whats for Dinner" campaign. In July 2003, a panel of the Eighth Circuit agreed with U.S. District Judge Charles Kornmann that the beef checkoff violated the First Amendment rights of cattle producers by compelling them to subsidize speech with which they disagree. The government appealed the decision to the U.S. Supreme Court.
This week, the Center for Individual Freedom joined with other leading attorneys and constitutional law experts to file an amicus brief on behalf of various farmers and ranchers asking the High Court to declare such checkoff programs unconstitutional. For several years, the Center has represented cattle ranchers Steve and Jeanne Charter in another case challenging the beef checkoff; that case is currently pending before the U.S. Court of Appeals for the Ninth Circuit.
The Centers amicus brief argues that requiring ranchers and farmers to pay for generic advertising for beef violates their First Amendment rights because compelled support for government speech is no less an offense than compelled support for third-party speech. In other words, the governments attempt to immunize its speech from constitutional scrutiny does nothing short of turn the First Amendment on its head.
"The failure of all members of an industry to support particular viewpoints espoused by others is not a market failure and is not free riding, it is dissent," the brief explains. "To respond to such dissent by forcing the dissenters to support competing speech anyway is nothing short of a First Amendment abomination ... The governments authority to act in a manner contrary to the views of a minority does not immunize compelled support for government speech from the First Amendment because speech is different and subject to greater constitutional protection."
The Supreme Courts decision will undoubtedly impact the final outcome of the Charters case, which is being held by the Ninth Circuit until the Supreme Court issues its decision. Like other cattle ranchers, the Charters must pay one dollar on each head of cattle they sell to pay for beef promotional campaigns touting the meat. But because the Charters have strongly held views regarding ranching, nutrition, food safety, and marketing that are considerably different and often diametrically opposed to the views expressed by the generic advertising funded by the checkoff, the Charters are being forced to speak against their will and in violation of the First Amendment.
Oral arguments before the U.S. Supreme Court in the beef checkoff case are scheduled for December 8, and the High Court is likely to rule next year.
To download a copy of the Centers amicus brief, click here.
To read more about the constitutional challenges to the checkoff programs, click here.October 21, 2004
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