Summary of a Recent
Judicial Development in
Checkoff Decisions

Ninth Circuit Holds Beef Checkoff May Be
Unconstitutional As Applied

Kurt B. Olson
National AgLaw Center Graduate Assistant

In Charter v. USDA, 412 F.3d 1017 (9th Cir. 2005), the Ninth Circuit Court of Appeals remanded the case instructing the lower court to determine whether the beef checkoff program of the Beef Promotion and Research Act, 7 U.S.C. §§ 2901-2911, is constitutional as applied. Earlier, in Johanns v. Livestock Marketing Association, 25 S. Ct. 2055 (2005), a case with identical constitutional issues as in the case at hand, the United States Supreme Court decided advertisements of the beef checkoff program were government speech and therefore not susceptible to First Amendment challenges. See id. at 1019 (citation omitted). However, as the Ninth Circuit pointed out, "[t]he Court nevertheless stated, without expressing a view on the point, that ‘if it were established…that individual beef advertisements were attributed to respondents,' such facts might form the basis for an ‘as applied' challenge." Id. (quoting Livestock Marketing Association, 25 S. Ct. at 2064). Because there was no evidence in the lower court in Livestock Marketing Association to show that the Government's use of "America's Beef Producers" as the signatory in the advertisements could be attributed to any particular producer, the Court did not consider the issue. See id. (citing Livestock Marketing Association, 25 S. Ct. at 2064). Unlike the Livestock Marketing Association case, the record in this case included evidence on the issue. See id. Because the record may support an as-applied challenge to the beef checkoff program, the case was remanded "to determine, among other things, whether speech was attributed to appellants and, if so, whether such attribution can and does support a claim that the Act is unconstitutional as applied." Id. at 1020.

The case was decided on June 16, 2005; this summary was posted Nov. 2, 2005.