Summary of a Recent
Judicial
Development in
Checkoff Decisions
United States Supreme Court Finds Beef
Checkoff Constitutional
Kurt B. OlsonNational AgLaw Center Graduate Assistant
In Johanns v. Livestock Marketing Association, 125 S. Ct. 2055 (2005), the United States Supreme Court held that advertising funded by the beef checkoff program is government speech and thus is not susceptible to First Amendment compelled-subsidy challenges. The Beef Promotion and Research Act, 7 U.S.C. §§ 2901-2911, directs the Secretary of Agriculture to appoint a Cattlemen's Beef Promotion and Research Board (Beef Board), which in turn forms an Operating Committee responsible for the design of an advertising campaign intended to promote the consumption of beef. The campaign is funded by a Secretary-imposed $1-per-head assessment on sales or importation of beef cattle and is subject to final approval by the Secretary. See id. at 2058. The beef producers challenging the beef checkoff program argued the advertising campaign promoting beef as a generic commodity hinders their own efforts to promote their beef as a superior product. See id. at 2059-2060 Because they disagreed with the message of the advertising campaign, they argued they should not be compelled to subsidize such speech. Id. Compelling someone to subsidize speech with which they disagree generally violates the person's First Amendment right to free speech. The government argued that the speech did not fall under this rule because the speech was government speech, as opposed to private or commercial speech. The respondents argued that the advertisements should not be considered government speech because (1) the ads are not designed by the Secretary, but by the Operating Committee of the Beef Board, which respondents argued is a nongovernmental entity, and (2) the ads are funded by targeted assessments as opposed to general taxes, thus bypassing political safeguards and giving the impression that the advertisements speak on behalf of all beef producers, even those who do not wish to be included in the message. See id. at 2062-2063.
The Court determined "[t]he message set out in the beef promotions is from the beginning to the end the message established by the Federal Government" because the overall message is set by the government, developed under government supervision and is subject to final approval of the Secretary. Id. at 2063. Thus, the government "is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources in developing specific messages." Id.
Because the advertisements are government speech, the Court held that it makes no difference whether the contested speech is funded by general taxes or targeted assessments as there is no right to not fund government speech. Further, the court stated that the political safeguards are plentiful given that a politically-accountable Congress created and can modify the statutory program and a politically-accountable Secretary oversees the program, appoints key personnel and holds ultimate veto authority. See id. at 2063-2064.
The Court did note that an as-applied challenge could be successful if it were shown that the beef advertisements were attributable to individual producers. Id. at 2065. However, the Court declined to rule on the matter, as the trial record was "altogether silent" on the issue. Id.
The case was decided on May 23, 2005; this summary was posted September 15, 2005.