Quick look at Johanns v. Livestock Marketing Association

Tuesday, May 24, 2005

Case name: Johanns v. Livestock Marketing Association.

Background: Under the Beef Promotion and Research Act of 1985, cattle ranchers are assessed a $1-a-head fee on cattle to provide funds for a program that promotes beef sales to the consumer and conducts research on beef. The promotion program is developed and supervised by a board composed of people involved in the beef industry, but the final decision about what message is used in the promotional program is made by the secretary of agriculture. This case was brought by associations of ranchers who object to the current program, well-known for its “Beef: It’s What’s for Dinner” slogan. They claimed the program violated their First Amendment free-speech rights by forcing them to pay for a message with which they disagree. The program was struck down on this basis by a federal district court and by the 8th U.S. Circuit Court of Appeals. Before the Supreme Court, the Bush administration defended the program as an example of government speech, which the government is entitled to control. Generally, the Supreme Court has said the government can decide what messages it will convey to the public without much First Amendment scrutiny.

Ruling: By a 6-3 vote, the Court upheld the beef promotion program on the grounds that it is government speech, and not an example of government compelling private people to disseminate an unwanted message.

Verbatim: From Justice Scalia’s majority opinion: “The message set out in the beef promotions is from beginning to end the message established by the Federal Government. … When, as here, the government sets the overall message to be communicated and approves every word that is disseminated, it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources in developing specific messages.”

From Justice Souter’s dissent: “Many of them [the beef ads] include the tag line, ‘[f]unded by America's Beef Producers,’ … which all but ensures that no one reading them will suspect that the message comes from the National Government. But the tag line just underscores the point that would be true without it, that readers would most naturally think that ads urging people to have beef for dinner were placed and paid for by the beef producers who stand to profit when beef is on the table. No one hearing a commercial for Pepsi or Levi's thinks Uncle Sam is the man talking behind the curtain. Why would a person reading a beef ad think Uncle Sam was trying to make him eat more steak?”

Lineup: Justice Antonin Scalia was joined in the majority by Chief Justice William Rehnquist, and Justices Sandra Day O’Connor, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer. Justices Anthony Kennedy, David Souter and John Paul Stevens dissented.

First Amendment impact: This was the third time in eight years that the Court has ruled on a federal marketing program, indicative of the confusion in the area. But this ruling may end most of the litigation in favor of the government programs. By regarding these marketing programs for the first time as government speech, the Court may have effectively taken them off the Fist Amendment playing field. Pending cases involving promotion programs for pork, milk, cotton and other products, will likely be resolved under this new framework.