The government speech immunity defense for checkoff programs
has never been accepted by any appellate court.
Note: This article originally appeared in the October 2002
issue of the Federalist Society’s Engage
Speech War on the Range: Legal Challenges to Nation's Commodity
question may sound innocuous, but for many of America’s independent
farmers and ranchers that marketing slogan, and others like it,
represents compelled speech in violation of the First Amendment.
addition to the ubiquitous milk moustache, the nation’s agricultural
commodity promotion programs — known as “checkoffs” — are responsible
for such well-known ads as: “Beef. It’s What’s for Dinner”
and “Ahh, The Power of Cheese.” Authorized by Congress,
run by agricultural producers, and overseen by the U.S. Department
of Agriculture (USDA), more than a dozen checkoff programs for various
agricultural commodities are funded through mandatory assessments
on farmers and ranchers based on a portion of their sales. The
beef checkoff, for example, raises more than $80 million annually
from beef producers who are assessed $1 per head of cattle sold.
twelve largest commodity promotion boards collect nearly $700 million
per year of farmers’ hard-earned money for these so-called “generic”
collective advertising programs. However, after the U.S. Supreme
Court struck down the mushroom promotion program last year, many
farmers and ranchers are now realizing that they got milked.
United States v. United Foods, Inc., the Supreme Court held
that the federal statute requiring mushroom growers to pay for generic
mushroom advertisements violated the First Amendment by compelling
support for speech with which at least some of the growers disagreed.
The opinion, penned by Justice Kennedy, stated that “First Amendment
values are at serious risk if the government can compel a particular
citizen, or a discrete group of citizens, to pay special subsidies
for speech on the side that it favors. . . . Just as the First Amendment
may prevent the government from prohibiting speech, the First Amendment
may prevent the government from. . . compelling certain individuals
to pay subsidies for speech to which they object.”2
declaring the mushroom checkoff unconstitutional, the United
Foods Court took significant strides to undo some of the damage
caused by its much-criticized 1997 decision in Glickman v. Wileman
Brothers & Elliott, Inc.3 In Glickman,
the Court rendered its decision in the assumed factual context that
the producers of California tree fruits were part of a larger collective
marketing program in which the objectors had given up their market
autonomy. The issue was not whether the producers were compelled
to speak, but whether the “mandated assessments for speech were
ancillary to a more comprehensive program restricting marketing
sharp contrast to Glickman, the mushroom producers in United
Foods were subject to “no marketing orders that regulate how
mushrooms may be produced and sold, no exemption from the antitrust
laws, and nothing preventing individual producers from making their
own marketing decisions.”5
the wake of United Foods, lawsuits are now pending over other
commodity promotions programs, including the beef and dairy checkoffs,
which are materially indistinguishable from the mushroom program.6,7
Charter v. USDA, independent Montana cattle ranchers Steve
and Jeanne Charter have challenged the constitutionality of the
Beef Act, which the government itself in United Foods had
claimed was indistinguishable from the Mushroom Act. The government
now claims, however, that the Beef Act is a part of a broader regulatory
system to which the forced collective speech under the Act is “germane.”
But, nothing in the Beef Act compels a cooperative marketing scheme
or any other form of collective action that would prevent beef producers
from making independent marketing decisions.
government also asserts that the speech at issue is commercial in
nature and that compelled support for such speech is subject to,
and would survive, the Central Hudson test for restrictions
on commercial speech.8 Interestingly, the government
did not rely upon Central Hudson in defense of the mushroom
checkoff program. Regardless, the Supreme Court has clarified in
Glickman that a lower court’s application of the Central
Hudson test should not be relied upon “for the purpose of testing
the constitutionality of marketing order assessments for promotional
advertising” because no explanation is given for how the Central
Hudson test, which involves a restriction of commercial speech,
should govern a case involving the compelled funding of speech.9
recognizing the weakness of its arguments in light of United
Foods, the government now places its strongest emphasis on the
novel argument that checkoffs may be constitutional if construed
as an extension of the government’s own speech.10
future of commodity checkoff programs may now hinge on whether the
speech funded through the programs is, in fact, government speech
and, if so, whether compelled support for government speech is nonetheless
subject to the same First Amendment scrutiny as compelled support
for third-party speech.
government speech immunity defense for checkoff programs has never
been accepted by any appellate court. Only two cases have dealt
with the issue; the U.S. Court of Appeals for the Third Circuit
held that the Beef Act, establishing the beef checkoff, is not government
speech.11 Likewise, the U.S. Court of Appeals for the
Ninth Circuit held that the almond checkoff program is not government
addition, none of the checkoff programs attribute the views they
express to the government, but instead attribute them to agricultural
producers. Common sense dictates that if the speech in question
is not attributed to the government, is paid for by farmers, and
is attributed to farmers, it is not government speech. In fact,
in the case of beef, the USDA food pyramid — which is government
speech — warns Americans not to eat too much beef.13
recent Congressional negotiations over the 2002 Farm Bill, 15 agricultural
trade associations sought to bolster the specious government speech
argument by lobbying for language to be included in the bill that
would declare all checkoff-related advertising as "government
speech." Fearing that United Foods “ha[d] put all research
and promotion programs under a cloud of doubt,” the associations
attempted to influence the outcome of pending litigation over checkoff
programs.14 Congress, in rejecting that attempt, reinforced
the long-established position that checkoffs are producer-driven,
producer-funded, “self-help” programs.15
Congress wants to act to preserve the purported benefits of collective
advertising, while at the same time respecting the First Amendment,
it could do so by amending existing laws to limit such collective
speech to those agricultural producers who have voluntarily entered
into collective production, promotion or sales arrangements; for
example, through agricultural cooperatives already authorized under
current law.16 That change would provide the economies
of scale touted by proponents of the current system without forcing
a collective regime upon those wishing to remain independent in
the market in the true spirit of the family farmer and the independent
rancher. It would also avoid any “free-rider” concerns by permitting
voluntary co-ops to “brand” their collective advertising, while
allowing independent producers to compete with such co-ops based
on the unique attributes and quality of their products.
in 1998, the Center for Individual Freedom is a non-partisan, non-profit
organization with the mission to protect and defend individual freedoms
and rights guaranteed by the U.S. Constitution. The Center is assisting
in lawsuits filed by independent beef ranchers against the beef
checkoff, and by a Pennsylvania family of dairy farmers against
the dairy checkoff. The Center filed an amicus curiae in the United
Foods case, as well as in a case involving “generic” collective
advertising for California plum growers (Gerawan Farming, Inc.
v. Veneman, No. S080610. Calif. Supreme Court). Copies of the
legal briefs may be read online at www.cfif.org.
United States. v. United Foods, Inc., 533 U.S. 405, 410-11 (2001).
v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997).
United Foods, 533 U.S. at 411 (describing Glickman).
Id. at 412.
Charter v. USDA, CV 00-198-BLG-RFC (U.S. District Court,
Billings, Montana). In writing this article, the author references
legal briefs prepared by Mr. Erik S. Jaffe, Mr. Kelly J. Varnes
and Ms. Renee L. Giachino. Mr. Jaffe, a sole practitioner in Washington,
D.C., concentrating in appellate litigation, is Chairman of the
Advertising Law and Regulation Subcommittee of the Federalist Society;
Mr. Kelly J. Varnes is an associate in the law firm of Hendrickson,
Everson, Noennig & Woodward, P.C. in Billings, Montana; Ms.
Renee Giachino is General Counsel of the Center for Individual Freedom.
v. Veneman, No. CV-02-0529 (U.S. District Court, Middle District
of Pennsylvania). A family of dairy farmers, in conjunction with
the Center for Individual Freedom, filed on April 2, 2002 a lawsuit
challenging the constitutionality of the mandatory dairy promotion
program. The suit, filed in U.S. District Court in Scranton, Pennsylvania,
on behalf of Joe and Brenda Cochran, seeks to enjoin the USDA and
the Dairy Promotion Board from collecting dairy checkoff assessments,
or using existing checkoff funds without prior consent of those
assessed, pending a declaratory judgment in the case.
Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S.
557 (1980). The precise boundary between commercial and noncommercial
speech has not been clearly defined. The Supreme Court has previously
characterized commercial speech as speech that does "no more
than propose a commercial transaction."
Glickman, 521 U.S. at 474.
The government also has forced United Foods, Inc. back into district
court to once again argue the constitutionality of the Mushroom
Act based on its new “government speech” theory.
United States v. Frame, 885 F.2d 1119,1132 (3d Cir. 1989),
cert. denied, 493 U.S. 1094 (1990). The Third Circuit held
that “the underlying rationale of the right to be free from compelled
speech or association leads us to conclude that the compelled expressive
activities mandated by the Beef Promotion Act are not properly characterized
as ‘government speech.’”
Inc. v. Department of Agriculture, 67 F.3d 874 (9th Cir. 1995).
The Food Guide Pyramid, www.nal.usda.gov:8001/py/pmap.htm
March 5, 2002 letter to Senate Agriculture, Nutrition and Forestry
Committee Chairman Tom Harkin signed by Alabama Farmers’ Federation,
Alabama Peanut Producers Association, American Beekeeping Federation,
American Farm Bureau Federation, American Mushroom Institute, Georgia
Agricultural Commodity Commission for Peanuts, National Cattlemen’s
Beef Association, National Cotton Council of America, National Milk
Producers Federation, National Pork Producers Council, National
Potato Council, The Popcorn Institute, United Egg Association, United
Egg Producers and Western Peanut Growers Association.
885 F.2d at 1135.
Capper-Volstead Act allows for voluntary cooperatives which can
market, promote and sell agricultural commodities.
June 21, 2002, U.S. District Judge Charles Kornmann, in Livestock
Marketing Association v. USDA (CIV 00-1032, U.S. District Court,
Northern Division, South Dakota), ruled the federal Beef Promotion
and Research Act, responsible for the beef checkoff, "unconstitutional
in violation of the First Amendment because it requires plaintiffs
to pay, in part, for speech to which the plaintiffs object.” The
court further ruled that after July 15, 2002, the U.S. Department
of Agriculture (USDA) and the Cattlemen’s Beef Board (CBB) are barred
from any further collection of checkoff funds in order to “wind
down” the program; money remaining on hand can continue to be used
for promotional purposes. The U.S. Court of Appeals for the 8th
Circuit granted the U.S. Department of Justice, on behalf of the
USDA, a stay of the order pending an appeal of Judge Kornmann’s
decision. The cases against the beef checkoff (which seeks a more
thorough repudiation of the Beef Act) and dairy checkoff referenced
in this article are still pending.
April 3, 2003]