Beef ads prompt 3rd high court review of mandatory marketing

Tuesday, May 25, 2004

WASHINGTON — Like Goldilocks testing the porridge to see if it is “just right,” the Supreme Court has agreed to consider a third government commodity marketing program — this time involving beef — to determine if it violates the First Amendment.

The justices yesterday agreed to review the cases Johanns (formerly Veneman) v. Livestock Marketing Association and Nebraska Cattlemen v. Livestock Marketing Association. Both appeals challenged a ruling by the 8th U.S. Circuit Court of Appeals that struck down the so-called “beef checkoff” program that has promoted beef sales with slogans such as “Beef: It's What's for Dinner.”

Under the program, beef producers were assessed a $1 fee per head of cattle by the government to fund the advertising. The program also has paid for research and educational programs on “mad cow disease.” In 2001, the assessment generated $86 million to fund the program.

But the Livestock Marketing Association and other industry groups have resisted the program, viewing it as a First Amendment violation because they assert that government, in effect, is requiring them to pay for expressions with which they disagree.

The 8th Circuit last July agreed, finding that the government's interest in protecting the welfare of the beef industry is “not sufficiently substantial to justify the infringement” on producers' First Amendment rights. The beef checkoff program was suspended because of the ruling.

Solicitor General Theodore Olson urged the high court to take up the case and reinstate the program. He asserts that the program, rather than restricting speech, promotes speech by the government on behalf of the national economy. Under the program, he notes, producers are “not constrained … from communicating their own messages.”

The beef cases represent the third government marketing program the high court has evaluated in First Amendment terms. In the 1997 case Glickman v. Wileman Bros. & Elliott, Inc., the Court upheld a marketing program imposed on California fruit-tree growers. The 5-4 ruling in Glickman found that the fruit industry was already heavily regulated, making the marketing assessment a form of acceptable economic regulation. But in the 2001 case U.S. v. United Foods, the Court struck down a mushroom marketing program on First Amendment grounds, finding that compelled speech was the focus of the program and that it was not part of a larger regime regulating the mushroom industry.

The 8th Circuit found that the beef checkoff is “in all material respects identical” to the mushroom program that the high court struck down. Whether the high court will agree, especially in light of the tighter regulations of the beef industry in the wake of the mad cow scare is uncertain. The Court is to hear the cases next fall.

What makes the beef cases unusual is the government's new assertion that the marketing program is a form of government speech, not private speech. If the Court agrees that when beef advertising appears it is the government talking, rather than the industry, the program would be evaluated in light of a different line of cases. The Court has ruled that when the government itself is the speaker, it may make content-based choices of what to say. The fact that some taxpayers disagree with what the government is saying, Olson's brief asserts, “provides no basis under the First Amendment to silence the government or to excuse objecting citizens from having to share the costs of its speech.”

The livestock marketing group dismisses that “surprising claim,” asserting that several appeals courts have rejected it in other cases. “A commodity checkoff program is not above the law, and it cannot strip America's cattle producers of their Constitutional rights. That position is at the heart of this case, and it will be upheld again,” the association said in a statement yesterday.

The high court also had before it a similar challenge to a ruling that struck down a pork marketing program, but it did not act on that case yesterday. Olson had urged the Court to hold the pork case, Michigan Pork Producers v. Veneman, in abeyance while it ruled on the beef case.

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