# Amicus Curiae Brief — Johanns v. Livestock Marketing Assn.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0740%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 550

## Text

Nos. 03-1164 and 03-1165

In the

Supreme Court of the United States

ANN VENEMAN, SECRETARY OF AGRICULTURE, ef al...
Petitioners.
\

LIVESTOCK MARKETING ASSOCIATION, ef al..
Respondents

NEBRASKA CATTLEMEN, INC.. e¢ al...
Petitioners.
\

LIVESTOCK MARKETING ASSOCIATION, e7 al..
Respondents

On Writs of Certiorari to the United States
Court of Appeals for the Eighth Circuit

BRIEF OF AMICI CURIAE CAMPAIGN FOR
FAMILY FARMS AND 49 FAMILY FARM
AND RANCH ORGANIZATIONS
IN SUPPORT OF RESPONDENTS

Susan EL. Stokes
Counsel of Record
David R. Moeller
Karen R. Krub
FARMERS’ LEGAL ACTION GROUP LIN
360 North Robert Street. Suite S00
Saint Paul, MN SS10]
(65]) 223-5400

———

October 15, 2004

QUESTION PRESENTED

Whether the Beef Promotion and Research Act of 1985
(Beef Act), 7 U.S.C. 2901 et seq., and the implementing Beet
Promotion and Research Order (Beef Order), 7 C.F.R. Part
1260, violate the First Amendment insofar as they require
cattle producers to pay assessments to fund generic
advertising with which they disagree.

TABLE OF CONTENTS

Page
CUES TOTES FURR aI 8 CR ccicsccscscnscisseinansensecniinsentiniiiauaanall i
TAREE GP COIN BIS 8 Wcccssccccnconcctintnntianssetecieeniainasiaaanea il
TABLE GP Aly Fi Reieee © Cee cosccccccsscsonisonniscesseeeeminaaan IV
STATENS CR TUF IIRIE a 6 vcvcccccsccssccsvecccoseccsntntasseammennnniats l
SUMMARY GP ARIAIREICS cecccsstsnsstscccssccsnstisnmnemeneaann 6
PIU INGIEIN 6 occorcnesocsscsrccecssciscnstsnienstiiiamummamman 7

I. THE BEEF ACT VIOLATES RANCHERS’
FIRST AMENDMENT RIGHT OF FREEDOM
OF ASGUCTA TIN, coccosessscinsscceehissnnsentaivalacmuiaaaan 7

A. The Beef Act Compels Ranchers To
Associate With Groups and Speech They

B. The Beef Act Serves the Interests of
Packers and Retailers and Not a Paramount
Governmental Interest, Making Packers and
Retailers the True Free Riders of the
COOGEE, acncacesteintsccnitijimaiaaaiiciadana an 13

Il. THE BFEF CHECKOFF VIOLATES
RANCHERS’ FIRST AMENDMENT RIGHT
OF FREEDOM OF SPEECH. .....0600:cccorecerccescesnseess 17

A. Checkoff-Funded Speech Is Inextricably
Int2rtwined With Expressly Ideological
And Politically Partisan Speech. ...............00 17
B. The Beef Checkoff, Paid Solely By
Ranchers To Benefit The Beef Industry,

Fails The Central Hudson Test. ...............000008 22
1. The government’s interest is not

SON scaconcsesistinniacsnaiaananaaiaaoaiail 23
2. The beef checkoff does not directly

advance any asserted government
SOTO csnincicnincscttitdemeaiaineatiaidainiddiaidintaeatamata 25

ee.

3. The beef checkoff is far more extensive
than necessary to serve any asserted

governmental interest. ...................cc00se000 26
CONCLUSION ................. iaisea ai idiniameanetiasnetntneinanemnedenesonne 30
EEE SL A-1

iv

TABLE OF AUTHORITIES

Page
Cases
Abood v. Detroit Bd. of Educ., 431 U.S. 209

| ee passim
Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60

ee 18
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)...............+. 13
Buckley v. Valeo, 424 U.S. 1 (1976)........c.cccecceceeeeeeeeeeneeees 13
Central Hudson Gas & Elec. Corp. v. Public Ser.

e ) GAUL § dl passim
Charter v. USDA, 230 F. Supp. 2d 1121 (D.

I, Fie scnsccssincicacencsienseiccnsisisinantiqeesianicinininanssiniiansiaininicensanmniaila 20
Cincinnati v. Discovery Network, Inc., 507 U.S.

ee ciniicintisica nencictintnrsinsitiniaiceattilaiaatiliidiceaibaateiiinniaieiniiiapieis 17
Cochran v. Veneman, 359 F.3d 263 (3d Cir. 2004)

petition for cert. filed (U.S. Sept. 30, 2004)

SI, GI ccccsnsinnioesiscsinninnentenictpnnigunnnidinammndantiatinns 19, 20, 23
Edenfield v. Fane, 507 U.S. 761 (1993) .......ccccccceseeeeeeeeenees 23
Ellis v. Brotherhood of Rv., 466 U.S. 435 (1984)............... 16
Elrod v. Burns, 427 U.S. 347 (1976) .........ccccccesseseececeeeeneenes 13
Glickman v. Wileman Bros. & Elliott, Inc., 521

RD ft, eee passim
Greater New Orleans Broad. Ass'n v. United

RA’ Bl) ee 25
Keiler v. State Bar of Cal., 496 U.S. 1 (1990)... 8,13
Kusper v. Pontikes, 414 U.S. 51 (1973)......ccccccccceceeeeeeeneeees 13
Larson v. Valente, 456 U.S. 228 (1982) ..........ccccccccceeeeeeeeeeees 7
Lassiter v. Dep't of Social Services, 452 U.S. 18

SITTIN sscsnsinsnssinaietadigstiiadtensintasniotaieandmatiiediesipenamiminstnangtedss 27
Lathrop v. Donohue, 367 U.S. 820 (1961) ...........cccecceceeeees 13

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507

Vv
Livestock Mktg. Ass'n v. USDA, 132 F. Supp. 2d
I ATT caine oahienasentcinnndeneinatendteatiiaieanidicicalibaidatialn 10
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525
haan che eae ta ila ide ae aa 29

Michigan Pork Producers Ass'n v. Campaign for
Family Farms, 229 F. Supp. 2d 772 (W.D.
ED CHEE cntiennenenmniinieN passim

Michigan Pork Producers Ass'n v. Veneman, 348
F.3d 157 (6th Cir. 2003) petition for cert. filed

sub nom. Veneman v. Campaign for Family

Farms (U.S. Feb. 19, 2004) (No. 03-1180).............. 2, 8, 24
NAACP v. Alabama, 357 U.S. 449 (1958) .........cccccccceceeeeeeeees 7
NAACP v. Claiborne Hardware Co., 458 U.S.

EE, RES AaE eeec ronan oan ee 7
New York Times Co. v. Sullivan, 376 U.S. 254

REESE ee Aenea ner CR 18
Nike, Inc. v. Kasky, 539 U.S. 654 (2003)....0.........cccccceceeeeees 17
Ohralik v. Ohio State Bar Ass ‘n, 436 U.S. 447

tiene aa ia a ae 17

Pelts & Skins, LLC v. Landreneau, 365 F.3d 423
(5th Cir. 2004) petition for cert. filed

(U.S. June 30, 2004) (No. 04-23) 0.0... cccccccccceeeeeeeeneeeeeeees 27
Riley v. Nat'l Fed'n. of the Blind, 487 U.S. 781

SEITE isninchthtcsirecicernctaneeniociniainntimnbedaninameaialineamaniaememnninnnetanenate 18
Roberts v. United States Javcees, 468 U.S. 609

SE a oe ee 7
Ry. Employees’ Dept. v. Hanson, 351 U.S. 225

FETT sncicitilimsncttntnnnendiiiitinilinndeiniiiioninenpumiimnmeni 13, 16
Thompson v. W. Med. States Ctr., 535 U.S. 357

EE enn eC ee 26
United Foods, Inc. v. United States, 197 F.3d 221

EE a ee nC 16
United States v. Frame, 885 F.2d 1119 (3d Cir.

1989), cert denied, 493 U.S. 1094 (1990)... 23, 24

vi vil
United States v. United Foods, Inc., 533 U.S. 405 Regulations
SIS P uccenesnneniasininienantarnsmnniiniineacannentmmsinenaneneemated passim
Virginia Bd of Pharmacy Virginia Citizens 67 Fed. Reg. 63,070 (Oct. 10, 2002) peccccccasocoosooosoccoooosososooess 27
Consumer Council, Inc., 425 U.S. 748 (1976)..............4 17 69 Fed. Reg. 1,694 (Jan. 12, 2004) 0.00... ccceceeeeeeee eoecenceseees 28
West Virginia Bd. of Educ. v. Barnette, 319 U.S. 69 Fed. Reg. 42,030 (July 13, 2004)... eee eeeeeeeeees 15
en caieabeinmeeieninniieninniinecneei 8 FF ed a Ry. ieee ieviaannecisitaniniinicinamiensentintininctapienenmnnaniontannneni 27
Wooley v. Maynard, 430 U.S. 705 (1977) .......ccccccceeeeeeeeeeees 8 en es OF ee ienenitaniatvaniesiascetsaneremmaneemnnnnentnniia 28
9)
a Be le Oe a ttidercceredcnsinccpreevnndntinenttiotnmanmeaniatnnniin 28
, Legislative Materials
ie, Gee, URINE, TE. sccepeineaiesinennpeunienminenninantanmuatiiii passim
: 150 Cong. Rec. $174-S175 (daily ed. Jan. 22,
mene lL AEE RADE A 12
Bib SD , 27 H.R. Rep. No. 584, 108th Cong. (2004) .00........cccccceceeeeeee: 27
fd fl > + Ee eereero ee 28 S. Rep. No. 340, 108th Cong. (2004) 000000. 27
th Ml eee 25 Other Authorities
gt TM | 14, 23
EMER ea ee on Enns 29 Albert E. Bergh, ed., 5 The Writings of Thomas
Rae 28 AS A a
i aT sae ienenienieininlleeiacaniieatiemialinialldis 28 American Lamb Board, Nutrition: Lamb v. Other
suUscC . 49025) 28 Meats, available at http://americanilamb
SCc.s laa emailed boarid.org/Mpage=site/text&nav_id=d04debdi9e
BF itis CIPI oti isnssseinctclnniainmpsenenpaniensntiimensecitaiitigbeniiapaiian 28 1984398 7ec6352c78be6d?.... 24
Bk el EE Sees Ueee name 28 Cattlemen’s Beef Board, 2003 Beef Board Annual
foe Ee | eee eee alieesle 25 Report (2004), available at
I 28 hitp://www.beelboard.org/documents/2003%20
F as Ur Hii iicartinsnicinsscsiesenhdacnenmnenintnnmatannenence ntti BC TLE STATOR
Pub. L. No. 107-171, § 10816, 116 Stat. 134 CBB Press Release, Beef Demand Stabilizes After
eae ae 12 20-Year Slide (Jan. 26, 2000), available at
Pub. L. No. 108-199, § 749, 118 Stat. 3 (2004)... 12 http://www .beefboard.org/dsp/dsp_content.cfm
?locationlId=1071 &contentTypeld=2&content!
Rules TEAS. ARES ee seers 24
5 ee l

ey & Df) ne I

viii
CBB Press Release, Defining the Separate Roles
of the Beef Board and Other Checkoff Players
(Dec. 5, 2003), available at http://www.beef
board.org dsp/dsp_content.cfm?locationld=107

1&contentTypeld=2&contentlhd=2383 .00..... eee.

Clement E. Ward, Concentration in the Red Meat
Packing Industry, at Role of Captive Supplies in
Beef Packing (1996), available at
http://www.usda.gov/gipsa/pubs/packers/conc-

I ciiccistnncnniscuiinicnpapicaniiiidinnsiineniieninedapanessesnee

Jerry Hagstrom, COOL Battle Far From Over,
AgWeek, Dec. 8, 2003, available at
http: /www.grandforks.com/mld/grandforksher

AE a a a

Kenneth H. Mathews, Jr., U. S. Beef Industry:
Cattle Cycles, Price Spreads, and Packer
Concentration (Apr. 1999), available at
http://www.ers.usda.gov publications/tb1874/tb

EE ke A

National Pork Board, Hog Marketing Contract
Study (Jan. 2004), available at

http://agebb.missouri.edu/ mkt vertstud04.htm...........

NCBA Press Release, Beef Checkoff Educates
Consumers About Irradiated Beef (May 11,
2004), available at http://www.beef.org/dsp

dsp_content.cfm?locationld=45&contentT ypel

10

12

19

BE EARL AT MO OTN 20

NCBA Press Release, NCBA PAC Endorses
President George W. Bush (Aug 13, 2004),
available at http://www.beef.org dsp
dsp_content.cfm?locationld=45&contentT ypeld

ee ceustennnsneetitiaianens wae

Neil D. Hamilton, Putting a Face on Our Food:
How State and Local Food Policies Can
Promote the New Agriculture, 7 Drake J. Agric.
RR RS TESST Ase ER a

1]

27

1x
Note, Challenging Concentration of Control in
the American Meat Industry, 117 Harv. L. Rev.

eG ienietarctnnateninensccrinincsadllincdipiasibesnsevenncenes

NPB Press Release (April 16, 2002), available at
http://www.porkboard.org/News/NewsEdit.asp

, RE ae 1)

NPB Press Release (June 18, 2001), available at
http://www.porkboard.org/News/NewsEdit.asp

PETE ES a SD

NPB Press Release, (June 7, 2001), available at
http://www.porkboard.org/News/NewsEdit.asp

0 EE ee a eae

Oral Argument Tr., United States v. United

Foods, Inc., No. 00-276, (Apr. 17, 2001).............22..

Philip Brasher, Politics Thrusts Ag Stakes Higher,

Des Moines Register, Aug. 29, 2004 0000.0...

Robert A. Hoppe, Structural and Financial
Characteristics of U.S. Farms: 2001 Family
Farm Report, USDA ERS Agriculture
Information Bulletin No. 768 (May 2001),
available at http:www.ers.usda.gov

/publications/aib768/aib768.pdf........... natanniianwencionse

Roger A. McEowen, The 2002 Senate Farm Bill:
The Ban on Packer Ownership of Livestock,

A FF SS EEE

Speech Transcript (Aug. 31, 2004), at
http://georgewbush.com/FarmAndRanch/Read.as

Oe EER bo

Terence P. Stewart, Trade and Cattle: How the
System is Failing an Industry in Crisis, 9 Minn.

RD a GE ccnccncccscanesninadiaattiiicincniteess

The PigSite News Print, US Swine Economics
Report (May 19, 2004), available at
http://www.thepigsite.com/LatestNews/print-

OTD BETTI 0 ccccscscncccccssstnscssnertessesunsscsesonees

pe 28

ee)

x

Thomas Jefferson, Virginia Act for Establishment
of Religious Freedom (1786), codified at
Si ee UO ntencieniestencntesermssineniianinmnemmnmnneseensemes l
USDA ERS, Dairy: Background (July 6, 2004),
available at http://www.ers.usda.gov/
Briefing/Dairy/Background. htm .............ccccccceseeeseeeeneeenees 4

USDA NASS, Number of All Cattle and Beef
Cow’ Operations, United States, 1988-2003
(Apr. 30, 2004), available at http://www.usda.
gov/nass/aggraphs/acbc_Ops. htm ...........ccsccccssceceseeeeeeseeeeees 4

USDA Nat’! Comm'n on Small Farms, A Time to
Act: A Report of the USDA National
Commission on Small Farms (Jan. 1998),
available at http://www.csrees.usda.gov/nea/
ag_systems/pdfs/time_to_act_1998.pdf..............ccccceee 3,4

USDA, GIPSA, Assessment of the Cattle and Hog
Industries: Calendar Year 200] (June 2002),
available at http://www.usda.gov/gipsa
/pubs/Olassessment/01asSessment.pdf...............cccceceeeeeeees 3
USDA, GIPSA, Captive Supply of Cattle and
GIPSA 's Reporting of Captive Supply (2002),
available at http://www.usda.gov/gipsa
/pubs/captive_supply/captivesupplyreport.pdf................... 4
USDA, Nutrition and Your Health: Dietary
Guidelines for Americans (5th ed. 2000),
available at http://www.health.gov/dietary
guidelines/dga2000/document/choose.htm ..................06+. 15

USITC Inv. 701-TA-386, Letter to Lynn Bragg,
Chair, U.S. International Trade Commission

Es Sis UTED scciesinsienndniieciipeehceabiciitadileinnainiatledeigtuiantiatisianabenndviintetie 5
www.beef.org/dsp/dsp_content.cfm?locationId=4

4&contentT ypeld=2&contentld=2648 0.00.0... cccceceeeeees 10
www.beef.org/dsp/dsp_locationContent.cfm?locat

SENSE T TUITE sisosecaresenitebindasinciietnadiitanunasinntihtinininniesibiababiaieininabeeibeds 11

xi

www.beefboard.org/documents/dairy_nutrition%

ITT i ccceceiichsiceeneaeciincianitniitaniiaiitienitamininsiataitiinans 10
www.beefitswhatsfordinner.com/ads/default.asp .................. 9
www.beefitswhatsfordinner.com/ads/tv.asp ............0000000000e 8
www.beefitswhatsfordinner.com/askexpert/inthen

TE 10
www.beefitswhatsfordinner.com/footer/aboutus.asp ............ 9
ee ectrctctathaerieitintcranciniiiiiianalanniasancisdinisiaiie 21
www.dairycheckoff.com/check/hl0904.asp............:c0cc0c00000 21
www.ers.usda.gov/Briefing/FarmIncome/Data/Hh

oiltUUT sccieisibesieiiaadtindaasinldanintusibisindddabeaniiactedaliduiniiainieneial 21
www.usda.gov/agency/obpa/Budget-

Semen y 2OGS/19 GE DAM. ..00cccsccsccosccccccsecssccscssessvescseees 27
www.whymilk.com/celebrity_archive.htm.............cccccccceeee Y
www.whymilk.com/celebrity_cc_history_vint.htm .............. 9

STATEMENT OF INTEREST’

“Cultivators of the earth are the most valuable
citizens. They are the most vigorous, the most
independent, the most virtuous, and they are tied to
their country and wedded to its liberty and interests
by the most lasting bonds.” 5 The Writings of
Thomas Jefferson 93 (Albert E. Bergh ed.) (1905).

“To compel a man to furnish contributions of
money for the propagation of opinions which he
disbelieves and abhors is sinful and tyrannical.”
Michigan Pork Producers Ass'n v. Campaign for
Family Farms, 229 F. Supp. 2d 772, 774 (W.D.
Mich. 200?) (MPPA 1) (quoting Thomas Jefferson,
Virginia Act for Establishment of Religious
Freedom (1786), codified at Va. Code § 57-1).

These two Jeffersonian ideals are melded by Amici
Curiae the Campaign for Family Farms (CFF) and 49 family
farm and ranch organizations” who join Respondents in their
opposition to the Beef Act’s mandatory promotion program
(beef “checkoff’).

CFF is a coalition of family farm organizations whose
hundreds of hog farmer members oppose paying the
mandatory pork checkoff. CFF conducted a petition drive that
resulted in a USDA-conducted referendum on the pork
checkoff program in which the majority of participating hog
farmers voted to terminate the program. Secretary of
Agriculture Veneman refused to henor the referendum.

' Pursuant to Sup. Ct. R. 37.6, no counsel for any party to these

proceedings authored, in whole or in part, this Amici Curiae brief. No
other entity or person, aside from the Amici, made any monetary
contribution for the preparation or submission of this brief to the Court.
This brief is filed pursuant to Sup. Ct. R. 37.3(a). The requisite consent

letters have been filed with the Clerk.

2 Amici are listed in the attached Appendix.

2

MPPA 1, 229 F. Supp. 2d at 775. After this Court’s decision
in United States v. United Foods, Inc., 533 U.S. 405 (2001),’
CFF and four individual hog farmers, James Dale Joens,
Richard Smith, Rhonda Perry, and Lawrence E. Ginter, Jr.,
brought a claim before the United States District Court for the
Western District of Michigan alleging that the pork checkoff
violates hog farmers’ First Amendment rights of freedom of
speech and association. MPPA |, 229 F. Supp. 2d at 775. On
October 25, 2002, the district court granted CFF’s motion for
summary judgment, holding that the pork checkoff was
“unconstitutional and rotten” and violated hog farmers’ First
Amendment rights of free speech and association. /d. at 791.
The Sixth Circuit affirmed the district court’s ruling, finding
that the pork checkoff compels hog farmers “to express a
message with which they do not agree.” Michigan Pork
Producers Ass'n v. Veneman, 348 F.3d 157, 163 (6th Cir.
2003) (MPPA I1) petition for cert. filed sub nom. Veneman v.
Campaign for Family Farms (U.S. Feb. 19, 2004) (No. 03-
1180).

Joining CFF in submitting this brief are 49 family farm
and ranch organizations with members from all 50 states.
These organizations represent hundreds of thousands of
family farmers and ranchers who raise cattle, hogs, other
livestock, and poultry; milk dairy cows; grow corn, soybeans,
and other commodities; and produce and market locally
grown fruits and vegetables. The organizations include the
National Farmers Union (an organization of 250,000
members), the National Family Farm Coalition (a coalition of
21 family farm groups), the National Farmers Organization,
the Federation of Southern Cooperatives, the Intertribal
Agriculture Council, state cattle and ranch organizations, state
and national sustainable agriculture organizations, and other

> CFF joined family farmers and ranchers in filing an Amici Curiae

brief in United Foods urging this Court to affirm the Sixth Circuit's
ruling.

3

leading state and national farmer-based organizations. Amici
strive to build sustainable rural communities, promote
responsible stewardship of soil, water, and other resources,
and ensure that land can be farmed and grazed for future
generations.

Amici represent hundreds of thousands of “cultivators of
the earth” who pay and ardently oppose mandatory
agricultural checkoffs, which compel them to fund
objectionable ideological speech that is aligned with private
industry organizations’ policies. These policies must be
viewed in the context of the dramatic changes in agriculture.
Agribusiness corporations are consolidating and controlling
increasingly more agricultural industries.* Note, Challenging
Concentration of Control in the American Meat Industry, 117
Harv. L. Rev. 2643 (2004). As the number of meztpackers
shrinks, ranchers find themselves with at most three
meatpackers to buy their cattle, and in some markets only
one. Roger A. McEowen, The 2002 Senate Farm Bill: The
Ban on Packer Ownership of Livestock, 7 Drake J. Agric. L.
267, 274 (2002). USDA’s Small Farms Commission
observed: “Concentration translates into the loss of open and
competitive markets at the local level .. . . The basic tencts of
a ‘competitive’ market are less and less evident in crop and
livestock markets today.” USDA Nat’l Comm’n on Small
Farms, A Time to Act: A Report of the USDA National
Commission on Small Farms, 4-5 (Jan. 1998), available at
http://www.csrees.usda.gov/nea/ag_systems/pdfs/time_to_act
_1998. pdf.

With fewer marketing options come lower prices for
farmers and ranchers, driving them into unfavorable

* Four meatpackers control over 81% of the cattle slaughter industry

and four meatpackers control 56% of the hog slaughter industry. USDA,
GIPSA, Assessment of the Cattle and Hog Industries: Calendar Year 200]
18, 38 (June 2002), available at http://www.usda.gov /gipsa/pubs/0 1 assess
ment/0] assessment.pdf.

4

contracts or out of business.® /d. at 36-37; Clement E. Ward,
Concentration in the Red Meat Packing Industry, at Role of
Captive Supplies in Beef Packing (1996), available at
http://www.usda.gov/gipsa/pubs/packers/conc-rpt.htm#chap3.

For those ranchers who remain, there have been multiple
years of raising cattle with significant financial losses, forcing
ranchers to give up health insurance, take off-ranch jobs to
supplement income, and incur more debt. Terence P. Stewart,
Trade and Cattle: How the System is Failing an Industry in
Crisis, 9 Minn. J. Global Trade 449, 455-86 (2000).

Approximately 33° of the United States cattle supply is being
marketed through contracts to meatpackers. USDA, GIPSA, Captive
Supply of Cattle and GIPSA’s Reporting of Captive Supply at viii (2002),
available at ___http:/' www.usda.gov/gipsa/pubs/captive_supply/captive
supplyreport.pdf. In the hog industry, more than 88% of hogs were
committed to packers through ownership or contractual arrangements in
2004, up from 56°o in 1997. National Pork Board (NPB), Hog Marketing
Contract Study (Jan. 2004), available at http://agebb.missouri.edu

mkt vertstud04.htm.

* Nationwide, the number of farmers and ranchers fell from 6.8

millon in 1935 to fewer than 2 million in 1997. Robert A. Hoppe,
Structural and Financial Characteristics of U.S. Farms: 2001 Family
Farm Report, USDA ERS Agriculture Information Bulletin No. 768, 6-7
(May 2001), available at —http:www.ers.usda.gov/publications/
aib768/aib768.pdf. When the beef checkoff became mandatory in 1988,
there were approximately | ,.350,000 cattle operations in the United States;
as of 2003, the number had diminished to 1,036,000, an almost 24%
decrease. USDA NASS, Number of All Cattle and Beef Cow Operations,
United States, 1988-2003 (Apr. 30, 2004), available at
http: www.usda.gov/nass‘aggraphs'acbe _ops.htm. The number of dairy
farms has decreased dramatically from 650,000 in 1970 to approximately
90,000 in the early 2000s. USDA ERS, Dairy: Background (July 6, 2004),
available at http.) www.ers.usda. gov/Briefing/Dairy/Background.htm.
The same holds true in the hog industry. In 1980 there were 666,550 hog
farms in the United States; as of 2003, the number had diminished to
73,600. The PigSite News Print, US Swine Economics Report (May 19,
2004), available at _ http://www.thepigsite.com/LatestNews/print-
news.asp? display=7577.

5

The decline in the number of farmers and ranchers
combined with the shift toward consolidation and corporate
control of livestock has had devastating economic effects on
independent family farmers and ranchers and their rural
communities. As acknowledged by 24 United States Senators,
when cattle ranchers suffer, rural communities suffer:

Given that beef cattle production comprises the
largest single component of the country’s
agricultural base, the perilous state of the cattle
industry adversely affects the economic health of
our rural communities and our states as a whole.
When cattle producers go out of business, Main
Street in much of rural America goes out of
business. The crisis in the cattle industry has led to
depopulation of rural areas, the closing of schools
and entire towns, and declining tax bases for local,
county, and state governments. In some states,
families may have to drive a hundred miles or more
to obtain provisions because of the collapse of so
many towns.

USITC Inv. 701-TA-386, Letter to Lynn Bragg, Chair, U.S.
International Trade Commission (Oct. 5, 1999).

In order to preserve and protect rural communities, Amici
have advocated for many years for the strengthening of the
family farm and ranch system of agriculture. In their efforts
to preserve independent family farms and ranches, Amici have
encountered significant opposition from associations that are
funded by and support the beef checkoff and other mandatory
agricultural checkoffs. Amici have witnessed firsthand the
negative consequences the policies of checkoff-funded
organizations have had on America’s family farm and ranch
system of agriculture. Amici and their members object for
economic, ideological, and political reasons to the beef
checkoff and other mandatory checkoffs; they believe the
mandatory checkoffs contribute to further industry vertical
integration and consolidation to the detriment of the family

6

farm and ranch system of agriculture. The trends described
above will only be exacerbated if the beef checkoff continues
to compel ranchers to fund their own demise. Therefore,
Amici fully support Respondents in urging the Court to affirm
the Eighth Circuit's ruling that the beef checkoff is
unconstitutional and should be terminated.

SUMMARY OF ARGUMENT

Mandatory agricultural promotion programs compel
farmers and ranchers to fund messages to which they object.
The checkoffs associate all farmers and ranchers who pay the
checkoff with those objectionable messages through
attribution and through the compelled funding itself. They
also compel farmers and ranchers to associate with the private
boards and organizations that administer the programs. Those
organizations spend, collectively, hundreds of millions of
farmers’ and ranchers’ hard-earned dollars each year to fund
programs the farmers and ranchers vehemently oppose. They
use that money to keep their organizations afloat, and use the
credibility derived from being the “voice” of farmers and
ranchers through the checkoffs to lobby against family
farmers’ and ranchers’ interests on political issues.

The purported governmental interest in the checkoff
programs is to stimulate demand for each of the commodities
they promote, yet many of those commodities actually
compete in the marketplace. The government cannot satisfy
its heavy burden to justify the infringement on farmers’ and
ranchers’ First Amendment association rights when the only
interests at stake are the conflicting interests of private
industry participants.

The speech generated by the checkoffs is more than
merely commercial; it is also ideological and political, and the
effects on those compelled to finance it have been degrading
rather than helpful. Because the checkoffs compel farmers
and ranchers to fund ideological and political speech, they
should be subject to the highest level of scrutiny. Under this
Court's compelled speech precedent, the Beef Act is

-

unconstitutional. Even under an _ intermediate aval of
scrutiny, the beef checkoff is unconstitutional.

ARGUMENT

I. THE BEEF ACT VIOLATES RANCHERS’
FIRST AMENDMENT RIGHT OF FREEDOM
OF ASSOCIATION.

A. The Beef Act Compels Ranchers To Associate
With Groups and Speech They Abhor.

The Court has long embraced the paramount importance
of the constitutional right of association, recognizing that
“{e]ffective advocacy of both public and private points of
view, particularly controversial ones, is undeniably enhanced
by group association.” NAACP v. Alabama, 357 U.S. 449,
460 (1958). The Court also has made it clear that the First
Amendment guarantees a “right to associate with others in
pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends.” Roberts v. United
States Jaycees, 468 U.S. 609, 622 (1984) (citing NAACP v. .
Claiborne Hardware Co., 458 U.S. 886, 907-09, 932-33
(1982); Larson v. Valente, 456 U.S. 228, 244-46 (1982);
Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977)).
Freedom of association “plainly presupposes a freedom not to
associate.” Roberts, 468 U.S. at 623 (citing Abood, 431 U.S.
at 234-35). Compelling an individual to financially support an
organization for expressive purposes interferes with the
individual’s First Amendment right to associate for the
advancement of ideas, or to refrain from doing so. Abood, 431
U.S. at 234-36.

Ranchers who pay the mandatory checkoffs are
compelled to associate with the speech of the groups that
administer them. All ranchers are compelled to fund—and
thus associate with—the generic promotion of beef. As
detailed in Respondents’ brief, ranchers believe that beef
raised, slaughtered, and processed in the United States is a
superior product and should be marketed as such. They object

to the generic promotion of beef, including imported beef,
because it tells consumers that all beef is the same, which
they do not believe. U.S. Petition for Certiorari Appendix
(U.S. Pet. App.) 1 la, 35a-37a. Like the mushroom growers in
United Foods, their livelihood depends on the sale of their
product. Also like the mushroom growers, they believe the
generic promotion has a detrimental effect on their livelihood.

Although ranchers are not compelled by mandatory
checkoffs to directly utter the objectionable messages, as in
West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943),
they are associated with the speech by being coerced to
support it as a precondition of earning a livelihood. By virtue
of being part of a discrete group that earns their living by
ranching, they alone, and not a general group of taxpayers,
are compelled to fund the message associated with the
checkoffs and the groups that administer them.’ Cf Keller v.
State Bar of Cal., 496 U.S. 1, 10-11 (1990); Abood, 431 U.S.
at 259 n.13 (Powell, J. concurring).

Even more strongly associating ranchers with the
objectionable speech they are compelled to support is the
visible attribution of the speech to them. See Wooley v.
Maynard, 430 US. 705 (1977). Beef checkoff-funded
television ads, which ran more than 1,500 times in 2003
alone, include the attribution line “Funded by America’s Beef
Producers.” Cattlemen’s Beef Board (CBB), 2003 Beef Board
Annual Report, 6 (2004), available at
http://www. beefboard.org/ documents/2003%20Annual%20R
eport.pdf. http://www.beefitswhatsfordinner.com/ads/tv.asp.
Print ads similarly state that they are “Funded by America’s

Amici join Respondents in asserting that the “so-called government
speech doctrine” is inapplicable here, where the speech is funded solely by
“America’s Beef Producers.” See Keller, 496 U.S. at 10-11; MPPA Il, 348
F.3d at 161-62.

9

Beef Producers.”* See, e.g.,
http://www.beefitswhatsfordinner.com/ads/default.asp.

In addition to being compelled to associate with
objectionable speech, ranchers are compelled to associate
with the organizations that administer the checkoff
programs—associations to which they fervently object. For
example, even though dissenting ranchers are not forced to
become actual members of the National Cattlemen’s Beef
Association (NCBA), their money is used to support it as the
general contractor for the beef checkoff and fund its checkoff-
related expressive activities. See http://www.beefitswhats
fordinner.com/footer/aboutus.asp. NCBA, a private, non-
profit organization, has annual revenues of approximately
$62,500,000, of. which 87% comes from ranchers’ beef
checkoff dollars.” Joint Appendix (J.A.) 185-87. NCBA is
virtually indistinguishable from CBB, the organization
actually charged with administering the beef checkoff.'° The

* The same is true for the pork and dairy checkoff programs. Pork
checkoff-funded communications, such as advertising, press releases,
reports, and producer communications proclaim that they are being
brought to the audience by “America’s Pork Producers.” MPPA I, 229 F.
Supp. 2d at 786. Dairy checkoff funded advertisements are also attributed
to “America’s Dairy Farmers and Milk Processors.” See
http://www.whymilk.com/celebrity_cc_history_vint.htm (snowing tv ads),
http://www.whymilk.com/celebrity_archive.htm (showing print ads).

* It is telling that nowhere in Petitioners’ briefs do Petitioners
mention NCBA, lei alone its unbridled power over the beef checkoff.

'° For instance, a visitor to the website www.beef.org would find it
impossible to discern with any certainty if the website belongs to NCBA,
whose name appears prominently on the home page, or if the website is
the official beef checkoff website. That same home page prominently
displays the “Beef, It's What's For Dinner” logo, and bears an icon with a
large red check, apparently referring to the beef checkoff. Clicking on that
icon directs the reader to a CBB website, which contains only general
information about the beef checkoff. See http://www.beefboard.org/.
Communications to ranchers typically refer the readers to both CBB's and

10

so-called “firewall” between NCBA’s checkoff-funded
activities and its non-checkoff-funded activities'' has been
referred to by some ranchers as a “myth” and a “joke.” J.A.
197-98, 205. See also, Livestock Mktg. Ass'n v. USDA, 132 F.
Supp. 2d 817, 822-23 (D.S.D. 2001).

The CBB website, which is funded entirely by checkoff
dollars, describes NCBA as follows:

Producer-directed and consumer-focused. NCBA is
the trade association of America’s cattle farmers
and ranchers, and the marketing organization for the
largest segment of the nation’s food and fiber
industry. It is the nonprofit domestic planning and
marketing organization responsible for increasing
demand for U.S.-produced beef and an authority on
beef and its related topics.

The NCBA works on behalf of America’s Beef
Producers and is contracted by the Cattlemen’s Beef
Promotion and Research Board.

http: //www.beefitswhatsfordinner.com/askexpert/inthenews.a
sp. NCBA repeats this claim in its checkoff communications.
See, e.g., http://www.beef.org/dsp/dsp_content.cfm?locati
onld=44&contentT ypeld=2&contentld=2648.

NCBA’s claim to be the “trade association of America’s
cattle farmers and ranchers” is objectionable to the many
ranchers who disagree with the mandatory beef checkoff and
the policies of NCBA. Many ranchers have chosen to
associate with other organizations that they believe better
represent their interests, such as Respondent Western

NCBA’s websites. See, eg. http://www.beefboard.org/documents/
dairy_nutrition%e20Dec%2023 pdf.

'' CBB itself admits the alleged distinction is confusing. See CBB
Press Release, Defining the Separate Roles of the Beef Board and Other
Checkoff Players (Dec. 5, 2003), available at http://www.beefboard.org/d
sp dsp_content.cfm?locationId=1071 &contentT ypeld=2&contentld=2383.

Organization of Resource Councils or Amici groups like the
Kansas Cattlemen’s Association, or the South Dakota
Stockgrowers Association. See, e.g., J.A. 200-01, 209, 215-
16, 218-19, 222-23. Indeed, out of the nearly one million
cattle ranchers in the United States, NCBA can claim only
about 33,000 individual members. See http://www.beef.org/
dsp/dsp_locationContent.cfm?locationId=88 1.

Despite many ranchers’ opposition to NCBA’s baldly
political positions, the mandatory checkoff unavoidably
associates all ranchers with NCBA’s political advocacy.
NCBA’s political activism is ostensibly funded with the 13%
of the its budget that does not come from the beef checkoff,
but CBB and NCBA portray NCBA messages as coming
from all ranchers. The www.beef.org website that includes
commingled beef checkoff information and NCBA policy
information (on which NCBA is prohibited from spending
checkoff funds) includes a section of press releases on a
variety of policy issues. One of the more recent releases
announces the decision of the NCBA Board that NCBA PAC
would “endorse and financially support” George Bush
because his policies “most closely match the policies of the
NCBA.” NCBA Press Release, NCBA PAC Endorses
President George W. Bush (Aug 13, 2004), available at
http://www. beef.org/dsp/dsp_content.cfm?locationld=45&conte
ntTypeld=2&contentlId=2731. Apparently the reader of the
website is supposed to surmise that this particular press
release was not paid for or associated with the beef checkoff,
since it does not have a little red checkmark next to it.
However, since NCBA’s “unanimous” endorsement was—as
intended—covered by the media (e.g., Philip Brasher, Politics
Thrusts Ag Stakes Higher, Des Moines Register, Aug. 29,
2004), a reader would not be able to determine that NCBA’s
actions were not funded by the beef checkoff and not spoken
on behalf of all ranchers. As an example of the confusion,
President Bush stated in his speech thanking NCBA: “Jan
Lyons, President of the National Cattlemen’s Beef
Association is with us. They have given me _ their

12
endorsement. I am honored to be endorsed by the Cattlemen
of the United States of America.” Speech Transcript (Aug. 31,
2004), at http://georgewbush.com/FarmAndRanch/Read.asp
x?1D=3414.

NCBA also publicly advocates for policy positions that
violate the dissenters’ core beliefs. One of the Respondents’
primary objections to the mandatory beef checkoff is that its
promotions do not distinguish imported beef from domestic
beef, which Respondents believe is a better product. J.A. 35,
66, 190-91. The 2002 Farm Bill included a provision making
it mandatory to label food, including meat, as to its country of
origin. Pub. L. No. 107-171, § 10816, 116 Stat. 134, 533
(2002). One of the objectives of this Country of Origin
Labeling (COOL) provision was to inform consumers
whether the beef they buy comes from cattle raised,
slaughtered, and packaged in the United States. NCBA,
however, has actively opposed mandatory COOL. Jerry
Hagstrom, COOL Battle Far From Over, AgWeek, Dec. 8,
2003, available at http://www.grandforks.com/mld/grand
forksherald/7439869.htm. In 2004, at the urging of groups
such as NCBA, Congress delayed funding of COOL, a move
that outraged farmers and ranchers. Pub. L. No. 108-199,
§ 749, 118 Stat. 3, 37 (2004). As submitted by Senator Tim
Johnson to the Congressional Record:

Ann Veneman herself helped identify some of the
culprits who killed COOL. She fingered the NCBA,
the National Pork Producers Council and the United
Fresh Fruit and Vegetable Association as the groups
responsible for blocking its implementation. Yes,
the primary contractor for your checkoff dollars, an
outfit that may not even exist without your beef
bucks, the NCBA, stabbed you right in the back.
Again.

150 Cong. Rec. $174-S175 (daily ed. Jan. 22, 2004).

The mandatory beef checkoff compels ranchers to
associate with the organizations that administer the beef

13

checkoff and the objectionable speech it generates in myriad
ways. This compulsion offends ranchers’ First Amendment
right to refrain from association with objectionable groups
and their messages. See Boy Scouts of Am. v. Dale, 530 U.S.
640, 648 (2000).

B. The Beef Act Serves the Interests of Packers
and Retailers and Not a Paramount

Governmental Interest, Making Packers and
Retailers the True Free Riders of the Checkoff.

“It is firmly established that a significant impairment of
First Amendment rights must survive exacting scrutiny.”
Elrod v. Burns, 427 U.S. 347, 362 (1976) (citing Buckley v.
Valeo, 424 U.S. 1, 64-65 (1976)). Encroachment of First
Amendment rights “cannot be justified upon a mere showing
of a legitimate state interest.” Kusper v. Pontikes, 414 U.S.
51, 58 (1973). “The interest advanced must be paramount,
one of vital importance, and the burden is on the government
to show the existence of such an interest.” Elrod, 427 U.S. at
362.

In order to justify interfering with an individual’s
association rights by compelling assessments to fund
objectionable speech, the government bears the burden of
showing an “overriding associational purpose which allows
any compelled subsidy for speech in the first place.” United
Foods, 533 U.S. at 413. In the labor context, the “overriding
associational purpose” that justifies compelling employees to
pay their share of collective bargaining activities is
Congress’s interest in furthering “industrial peace and
stabilized labor-management relations.” Ry. Employees’ Dept.
v. Hanson, 351 U.S. 225, 233-34 (1956); see also Abood, 431
U.S. at 219. The “overriding associational purpose” justifying
compelled payments to an integrated state bar association is
the state’s interest in ensuring educational and ethical
standards for attorneys that provide legal services to the
state’s citizens. Keller, 496 U.S. at 12, 16; Lathrop v.
Donohue, 367 U.S. 820, 843 (1961) (plurality).

14

The Court already has held that there is no “overriding
associational purpose” justifying compelled subsidies for the
promotion of agricultural commodities in the absence of a
greater collective regulatory scheme. United Foods, 533 U.S.
at 415. In contrast to Glickman v. W.leman Bros. & Elliott,
Inc., 521 U.S. 457 (1997), which addressed the promotion
portion of a broader marketing order mandating the
collectivization of California tree fruit production to such an
extent that the industry was exempted from antitrust laws, the
Mushroom Act at issue in United Foods was a stand-alone
statutory promotion program. See United Foods, 533 U.S. at
415-16. Because there was no “law or necessity” justifying
the compelled association of mushroom growers in the first
place, the compelled subsidies for the mushroom checkoff
speech were declared unconstitutional. /d. at 413, 414-16.

Petitioners’ briefs omit this threshold inquiry. Like the
Mushroom Act, the Beef Act was enacted as a stand-alone
promotion program and is not part of a greater collectivized
statutory scheme. U.S. Pet. App. 11a, 47a. Accordingly, like
the Mushroom Act, because there is no justification for the
compelled association in the first instance, the compelled
assessments under the Beef Act are unconstitutional.

The only governmental interest asserted by the
Petitioners to justify the Beef Act’s infringement of ranchers’
First Amendment rights is found in their discussion of the
intermediate standard of scrutiny applied to restrictions on
commercial speech. Petitioners assert that the Beef Act
advances a “substantial” government interest by “enhancing
‘the welfare of beef producers,’ stabilizing ‘the general
economy of the Nation,’ and ‘ensur[ing] that the people of the
United States receive adequate nourishment.’” Brief for the
Federal Petitioners (U.S. Br.) 47 (citing 7 U.S.C. § 2901(a)(3)
and (4)). These asserted interests do not satisfy the
intermediate standard of scrutiny used for analyzing
restrictions on commercial speech, see infra, let alone the

15

“exacting scrutiny” required for the Beef Act’s significant
impairment of ranchers’ association rights.

Congress has enacted multiple, competing checkoff
programs. The fact that pork competes against beef in the
marketplace and vice versa undermines any claim that the
government’s interest in promoting one or the other is
substantial, and makes it impossible for any one checkoff
program to be found “of vital importance.” See infra at 24-25.
Moreover, while asserting that the governmental interest in
the mandatory beef checkoff and other checkoffs is to
“stabiliz[e] ‘the general economy,” the government cannot
plausibly argue that it has a paramount interest in simply
promoting more consumption of all agricultural products
covered by mandatory checkoffs, given USDA’s conflicting
interest in providing education to consumers on nutrition and
healthy eating, including the well-known Food Guide
Pyramid. See 69 Fed. Reg. 42,030 (July 13, 2004). For
example, while com, <'ling hog farmers to pay some $50
million per year to promote pork and pork products, USDA
also urges consumers to “Limit your intake of high-fat
processed meats such as bacon, sausages, salami, bologna,
and other cold cuts.” See USDA, Nutrition and Your Health:
Dietary Guidelines for Americans (Sth ed. 2000), available at
http://www. health. gov/dietary guidelines/dga2000/document/c
hoose.htm. As set forth in more detail below, rather than
promoting a governmental interest, the mandatory checkoffs
in reality promote the interests of the private participants in
each industry. See infra at 23-24.

Petitioners assert that the government has a “vital” policy
interest in avoiding free riders, thus necessitating a mandatory
beef checkoff. U.S. Br. 48 (citing Lehnert v. Ferris Faculty
Ass'n, 500 U.S. 507, 519-21 (1991)). This argument
misapprehends the nature of the checkoffs and the meaning of
the term “free riders,” which is applicable only in a
constitutionally justified collective enterprise. The concern
about free riders was articulated by the Court in the context of

16

upholding agency shop agreements in which the union is the
exclusive collective bargaining representative for union and
non-union members. Hanson, 351 U.S. at 233-35; Lehnert,
500 U.S. at 519. The Court upheld the requirement that
nonunion members be compelled to pay for costs related to
unions’ collective bargaining duties, since the unions were
obligated by statute to represent the non-members, and non-
members would benefit in equal share as members.
Accordingly, to prohibit the non-members from benefiting as
free riders from the unions’ statutorily imposed bargaining
obligations in agency shop arrangements, non-members could
be required to pay for certain costs over their objections. See
Lehnert, 500 U.S. at 520-21 (“nonunion workers ought not to
be allowed to benefit from the terms of employment secured
by union efforts without paying for those services...”); Ellis
v. Brotherhood of Ry., 466 U.S. 435, 452 (1984) (“the free
rider Congress had in mind was the employee the union was
required to represent and from whom it could not withhold
benefits obtained for its members”).

The free rider concern also arises for heavily regulated
industries, as was the case in Glickman, where individuals
could “take advantage of their monopoly power resulting
from regulation of price and supply without paying for
whatever commercial benefits such free riders receive at the
hands of the government.” United Foods, Inc. v. United
States, 197 F.3d 221, 224 (6th Cir. 1999). The concern about
free riders thus is applicable only where there is collective
activity that itself is justified by a paramount government
interest. It has no applicability here, where the beef industry is
not collectivized, and the participants in that industry are free
actors, not free riders.

Moreover, that some individuals who choose not to
participate in a voluntary checkoff may benefit from the
advertising of those who do, does not provide sufficient
justification for compelling all farmers and ranchers to
contribute and be forced into objectionable association.

——_— a

17

“{P}rivate speech often furthers the interests of nonspeakers,
and that does not alone empower the state to compel the
speech to be paid for.” Lehnert, 500 U.S. at 556 (Scalia, J.,
concurring in part and dissenting in part). Indeed, the persons
who benefit most from mandatory checkoffs are not the
farmers and ranchers who ray for them, but the processors
and retailers, whose products are being marketed at farmers’
and ranchers’ expense. U.S. Pet. App. 48a.

Il. THE BEEF CHECKOFF VIOLATES
RANCHERS’ FIRST AMENDMENT RIGHT OF
FREEDOM OF SPEECH.

A. Checkoff-Funded Speech Is _ Inextricably
Intertwined With Expressly Ideological And
Politically Partisan Speech.

The Court has unequivocally concluded that commercial
speech is entitled to First Amendment protection. Virginia Bd.
of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U.S. 748, 762 (1976). The Court settled on a three-part test
providing for “intermediate scrutiny” of restrictions on
commercial speech, rather than the highest level of scrutiny,
in its decision in Central Hudson Gas & Elec. Corp. v. Public
Ser. Comm'n, 447 U.S. 557, 566 (1980). Once thought to be
“commonsense,” Ohralik v. Ohio State Bar Ass'n, 436 US.
447, 455-56 (1978), the definition of “commercial speech” for
purposes of determining which level of scrutiny applies, has
proven to be more elusive as communication and marketing
tools become more sophisticated. See, e.g., Nike, Inc. v.
Kasky, 539 U.S. 654, 676-79 (2003) (Breyer, J. dissenting);
United Foods, 533 U.S. at 409-10.

Although the Court in Central Hudson described
commercial speech as “expression related solely to the
economic interests of the speaker and its audience” (447 U.S.
at 561), the Court has acknowledged the “difficulty of
drawing bright lines that will clearly cabin commercial speech
in a distinct category.” Cincinnati v. Discovery Network, Inc.,

18

507 U.S. 410, 419 (1993) (noting that advertising publications
“share important characteristics with the publications

...classifie[d] as ‘newspapers.’”). It is also established that the -

mere fact that a publication contains an advertisement or a
reference to a specific product does not convert that speech
into commercial speech. See Bolger v. Youngs Drug Prod.
Corp., 463 U.S. 60, 66-67 (1983) (citing New York Times Co.
v. Sullivan, 376 U.S. 254, 265-66 (1964)). In analyzing what
level of scrutiny to apply to a state statute that compelled
professional fundraisers to disclose certain information to
potential donors, the Court explained:

[E]ven assuming, without deciding, that such
speech in the abstract is indeed merely
“commercial,” we do not believe that the speech
retains its commercial character when it is
inextricably intertwined with otherwise fully
protected speech. Our lodestars in deciding what
level of scrutiny to apply to a compelled statement
must be the nature of the speech taken as a whole
and the effect of the compelled statement thereon. . .
. Thus, where, as here, the component parts of a
single speech are inextricably intertwined, we
cannot parcel out the speech, applying one test to
one phrase and another test to another phrase. Such
an endeavor would be both artificial and
impractical. Therefore, we apply our test for fully
protected expression.

Riley v. Nat'l Fed'n. of the Blind, 487 U.S. 781, 796 (1988).

Taking the nature of the speech as a whole, speech
funded by mandatory checkoffs does not fall into the narrow
category of speech that is solely commercial. Set against the
backdrop of the political and philosophical divide between
those who advocate for further industrialization of agriculture
and those who are attempting to preserve family farming and
rural communities, the speech supported by mandatory
checkoffs can only be seen as economic, political, and

19

ideological.'* As this Court noted in Abood, “{O]ur cases
have never suggested that expression about philosophical,
social, artistic, economic, literary, or ethical matters—to take
a nonexhaustive list of labels—is not entitled to full First
Amendment protection.” 431 U.S. at 231.

By paying the mandatory checkoff, family farmers and
ranchers are compelled to subsidize speech that supports a
system of agriculture they believe is driving them out of
existence. See, e.g., U.S. Pet. App. 48a; MPPA I, 229 F. Supp.
2d at 790-91. Through the checkoff, farmers and ranchers are
forced to subsidize the marketing of products they neither sell
nor earn a profit from. Ranchers sell cattle, not beef. Hog
farmers sell hogs, not pork. Ranchers’ share of the retail beef
dollar declined from nearly 70% in the 1970s to below 50%
in 1996. Kenneth H. Mathews, Jr., U. S. Beef Industry: Cattle
Cycles, Price Spreads, and Packer Concentration, 18-19
(Apr. 1999), available at http://www.ers.usda.gov/publicati
ons/tb1874/tb1874.pdf. Similarly, hog farmers’ share of the
retail pork dollar declined from 42.5% to 30.1% between
1996 and 2001. MPPA I, 229 F. Supp. 2d at 776. Family
farmers and ranchers thus understandably believe that their
checkoff dollars are enriching retailers and processors, to
their detriment.

The records of the pending legal challenges to mandatory
checkoffs demonstrate that the objecting farmers and ranchers strongly -
disagree with the speech they are compelled to fund. See, e.g., U.S. Pet.
App. | la, 48a; MPPA |, 229 F. Supp. 2d at 790; Cochran v. Veneman, 359
F.3d 263, 266-67 (3d Cir. 2004) petition for cert. filed (U.S. Sept. 30,
2004) (No. 04-446). This distinguishes this case and other pending cases
from Glickman, in which the Court presumed that the producers agreed
with the advertising message. 521 U.S. at 469-70. As well, the finding by
the district court that objecting hog farmers have “sincere philosophical,
political and commercial disagreements” to pork checkoff-funded speech
(see MPPA 1, 229 F. Supp. 2d at 790), obviates the Court's further
assumption in Glickman that producers were not compelled to finance
“political or ideological views.” 521 U.S. at 469-70.

20

Moreover, mandatory checkoffs compel farmers and
ranchers to subsidize the promotion of products raised using
methods with which they disagree. For example, the
challengers to the dairy checkoff operate a small dairy,
employing traditional methods of dairy farming. They
emphatically believe that their method of farming—which
allows cows more room to roam and graze than industrial
methods allow, and which eschews the use of the recombinant
Bovine Growth Hormone (rBGH)—tesults in healthier cows,
a cleaner environment, and superior milk. Cochran, 359 F.3d
at 266-67. Family hog farmers similarly object to funding the
generic promotion of pork from hogs that are raised
employing methods commonly used in factory farms, such as
continuous feeding of antimicrobials. MPPA 1, 229 F. Supp.
2d at 777. Some objecting ranchers raise grass-fed cattle
without the use of artificial hormones, subtherapeutic
antibiotics, chemical additives, extra wafer, and irradiation.
Charter v. USDA, 230 F. Supp. 2d 1121, 1122 (D. Mont.
2002). They have strongly held views regarding ranching
methods, nutrition, and food safety which are often
diametrically opposed to the products promoted by the beef
checkoff. See, e.g, NCBA Press Release, Beef Checkoff
Educates Consumers About Irradiated Beef (May 11, 2004),
available at http://www.beef.org/dsp/dsp_content.cfm?locat
ionlId=45&contentT ypeld=2&contentld=2621. The generic
promotion of commodities lumps those raised by independent
family farmers using what they believe are healthy and
humane practices with those raised in factory farms—the
same megz -farms that are driving family farmers out of
existence.

'? Speech funded under the “research” and “consumer information”
portions of the checkoffs often blatantly supports industrialized
agriculture. For example, a primary focus of research funded by the pork
checkoff is in the area of “Antimicrobial Resistance and Alternatives
Research,” meaning the continuous feeding of subtherapeutic levels of
antibiotics to hogs to promote growth and prevent disease—a practice

21

As agriculture rapidly becomes vertically integrated,
packers control more livestock through captive supply
arrangements, and the number of packers dwindles while their
size and market power swells, generic promotion that fails to
distinguish the unique qualities of family, farm-raised
commodities continues to harm family farmers. In the
struggle fo stay on their land with ever-shrinking farm
income,'* the money farmers and ranchers are forced to pay
to fund generic promotion has a direct impact on their daily
lives. See MPPA 1, 229 F. Supp. 2d at 775-76.

Even more galling to farmers is “branded advertising,”
which uses checkoff dollars to promote the products of
particular packers and retailers. See, eg, id. at 776
(promoting Smithfield and Hormel pork); see also,
http://www.beefmark.com (promoting Smithfield and Tyson
beef products, among others); http://www.dairycheckoff.com
/check/hl0904.asp (promoting Safeway). Because packers
increasingly own livestock, checkoff-funded branded
advertising forces farmers and ranchers to pay for the
advertising of their direct competitors. The packers whose
advertising budgets are being subsidized by farmers are also
direct competitors of farmers who process and market their
own products. See MPPA I, 229 F. Supp. 2d at 776.

The speech funded by the mandatory checkoffs—whether
it is generic advertising, “branded” advertising, publications

many independent family farmers scorn. See MPPA |, 229 F. Supp. 2d at
777. Pork checkoff challenger James Joens opposes checkoff-funded
“education” about the same practices:
I raise my hogs using humane methods; they are not confined
in pens their entire lives, as they are in many factory hog farms.
I object to my checkoff dollars being used to publish
information that helps cover up the abuses of those large
confinement facilities.
MPPA |, 229 F. Supp. 2d at 776.

'* Average operator earnings from farming in 2003 were $3,991. See
http://www.ers.usda.gov/Briefing/FarmIncome/Data/Hh_tS htm.

22

pronouncing the results of “research,” or “consumer
information”—certainly encompasses more than just
“expression related solely to the economic interests of the
speaker and its audience.” While the speaker in beef-checkoff
funded ads is “America’s Beef Producers,” the speech relates
less to the economic interests of ranchers than it does the
economic interests of packers and retailers. Moreover, the
commercial nature of checkoff-funded speech is interwoven
with its underlying ideological, philosophical, and political
nature. Speech that represents and supports a system of
agriculture that is anathema to the objecting farmers’ core
economic, ideological, and political beliefs cannot be said to
be merely “commercial.”’* Taken as a whole, the compelled
funding of speech through the mandatory checkoffs must be
given the highest level of scrutiny under the First
Amendment. The compulsion to fund messages that promote
a system of agriculture that is repugnant to farmers’ and
ranchers’ economic, philosophical, and political interests
must also be repugnant to the Constitution.

B. The Beef Checkoff, Paid Solely By Ranchers To
Benefit The Beef Industry, Fails The Central
Hudson Test.

Even if the speech at issue is deemed commercial,
Central Hudson provides that the government may regulate it
only if: (1) “the asserted government interest is substantial,”
(2) the regulation “directly advances the governmental
interest asserted,” and (3) the regulation “is not more
extensive than is necessary to serve that interest.” 447 U.S. at
566. Petitioners have failed to meet their burden under
Central Hudson, which “is not satisfied by mere speculation

'S Although the Eighth Circuit concluded that the test for a restriction
on commercial speech set forth in Central Hudson is applicable to the
claims at issue in this case, it did so without analysis of the nature of the
speech, and ultimutely correctly applied United Foods. U.S. Pet. App.
24a-28a.

23

or conjecture.” Edenfield v. Fane, 507 U.S. 761, 770-71
(1993).

1. The government’s interest is not
substantial.

Petitioners maintain that the beef checkoff advances a
substantial governmental interest by “enhancing ‘the welfare
of beef producers’ and other members of the $50 billion beef
industry,” and “stabilizing ‘the general economy of the
Nation.’” U.S. Br. 47, citing 7 U.S.C. § 2901(a)(3) and (4).
Petitioners also cite United States v. Frame, 885 F.2d 1119,
1134 (3d Cir. 1989), cert denied, 493 U.S. 1094 (1990)
(O’Connor, J., not participating), for the proposition that the
beef checkoff prevented the further decay of the beef
industry. U.S. Br. 39-40. Petitioners are wrong for a number
of reasons. First, the Third Circuit’s recent decision in
Cochran, a dairy checkoff challenge, limited its prior holding
in Frame on this very issue:

As in Frame, the Government here argues that it has
a sufficient interest in increasing the demand for an
agricultural product. . . . We previously have
emphasized, however, that the Court’s subsequent
holding in United Foods that clarified and limited
the teachings of Glickman, cut away the
underpinning of this court’s analysis in Frame.
United Foods makes clear that the government may
not compel individuals to support an advertising
program for the sole purpose of increasing demand
for that product. .. . As Judge Sloviter suggested in
her dissent in Frame, promotional programs such as
the Dairy Act seem to really be special interest
legislation on behalf of the industry's interest more
so than the government’s.

359 F.3d at 279.

Second, it has long been accepted that checkoff programs
were created as “self-help” programs to serve private industry

24

interests, rather than a governmental interest. See id.; J.A.
101-02; MPPA Il, 348 F.3d at 161; see also, Glickman, 521
U.S. at 495 (Souter, J., dissenting) (“the legislative history
shows that from time to time Congress has simply amended
the [Agricultural Marketing Agreement Act of 1937] to add
particular commodities to the list at the request of interest
producers or handlers, without ever explaining why
compelled advertising programs were necessary for the
specific produce chosen and not others.”).

Third, in discussing the importance of the beef industry
to the American economy, Petitioners fail to mention that the
government has other compelled speech programs that
compete with beef. For example, the pork checkoff program
has identified beef as being in competition with pork.'® The
lamb checkoff program compares the nutritional value of
lamb to other meats, including beef and pork. American
Lamb Board, Nutrition: Lamb v. Other Meats, available at
http: //americanlambboard.org/?page=site/text&nav_id=d04de
bdf9e79843987ec6352c78be6d2. CBB, through beef checkoff
promotions, bragged that in 1999, for the first time in 20
years (in 15 of which the mandatory beef checkoff existed),
beef consumption increased, “despite stiff competition from
pork and poultry.” CBB Press Release, Beef Demand
Stabilizes Afier 20-Year Slide (Jan. 26, 2000), available at
http://www.beefboard.org/dsp/dsp_content.cfm?locationld=1
071&contentTypeld=2&contentlId=415. In addition to
enacting numerous competing checkoff programs, Congress

‘© NPB Press Release (June 18, 2001), available at http://www.
porkboard.org’News/NewsEdit.asp? NewsID=101 (“With pork’s increase
in popularity, the industry continues to share the mess: ze that pork can
compete with beef.”); NPB Press Release (April 16, 2002), available at
http: ‘www.porkboard.org/News/NewsEdit.asp?NewsID=266 (“But with
abundant supplies [of pork] and low prices for beef and poultry, there is
bound to be some substitution.”); NPB Press Release, (June 7, 2001),
available at http://www .porkboard.org/News/NewsEdit.asp? NewsID=95
(“At the consumer level, pork competes with beef.”).

25

also enacted the Commodity Promotion, Research and
Information Act of 1996 that allows agricultural industry
groups to petition the Secretary of Agriculture to implement
new checkoff programs. 7 U.S.C. §§ 7411-7425. As the
district court aptly queried: “After all, is the ‘government
message’ that consumers should eat no other product [other
than beef] or at least reduce the consumption of other
products such as pork, chicken, fish, or soy meal?” U.S. Pet.
App. 56a.

In Greater New Orleans Broad. Ass'n v. United States,
the Court held that a federal restriction on advertising related
to casino gambling did not satisfy Central Hudson's
substantial governmental interest requirement in part because
Congress also sanctioned some forms of gambling. 527 U.S.
173, 186-87 (1999). The Court held that it “cannot ignore
Congress’ unwillingness to adopt a single national policy that
consistently endorses either interest asserted by the Solicitor
General.” /d. By authorizing multiple, competing checkoffs,
Congress is not promoting the welfare of cattle ranchers;
rather, it is promoting the interests of competing agricultural
industry groups that are on the gravy train of checkoff
funding. That interest does not justify compelled assessments’
impingement on ranchers’ First Amendment rights.

2. The beef checkoff does not directly
advance any asserted government interest.

Even if a substantial government interest can somehow
be derived amongst the multitude of checkoffs, the beef
checkoff does not directly advance the asserted government
interest to “enhance the welfare of beef producers.” U.S. Br.
39-40. Presumably by this Congress meant American cattle
ranchers. See 7 U.S.C. § 2901(a)(2). One of Respondents’
primary objections to the beef checkoff is that it treats all beef
the same, including imported beef, to the detriment of
domestic ranchers. J.A. 35, 222-23. By doing so, the beef
checkoff fails tc directly advance the asserted government
interest of enhancing the welfare of American ranchers.

26

Furthermore, the record in this case contains no evidence
suggesting that the beef checkoff has a beneficial effect on the
live prices ranchers receive when they market cattle (and are
forced to pay the mandatory beef checkoff). Instead. the
analysis cited by Petitioners is limited to changes in dernand
for beef. U.S. Br. 40. Ranchers sell cattle, not beef. Packers
and retailers sell beef. If the beef checkoff has helped anyone,
it is retailers and processors—who do not pay the beef
checkoff. See U.S. Pet. App. 48a. The checkoff's failure to
enhance the welfare of American cattle ranchers—indeed, its
inherent inability to do so—precludes any finding that the
compelled speech directly advances the government’s
asserted interest.

3. The beef checkoff is far more extensive
than necessary to serve any asserted
governmental interest.

By compelling objectionable speech, the beef checkoff
burdens ranchers’ First Amendment rights more than
necessary to advance the asserted governmental interest. To
be valid under Central Hudson, compelled speech must be the
last means utilized to serve the asserted government interest.
See Thompson v. W. Med. States Ctr., 535 U.S. 357, 373
(2001) (“If the First Amendment means anything, it means
that regulating speech must be a last—not first—resort. Yet
here it seems to have been the first strategy the Government
thought to try.”). The government has available to it a vast
array of strategies it can use and has used to promote the beef
industry, short of violating ranchers’ First Amendment rights.

If the government’s interest in the welfare of cattle
ranchers were substantial, and if the government truly
believed that generic promotion programs directly advance
that interest, the government could use funds from general
revenues to fund the same projects, as the Fifth Circuit
recently noted in a decision striking down a state alligator

27

checkoff.'’ See Pelts & Skins, LLC v. Landreneau, 365 F.3d
423, 434 n.21 (Sth Cir. 2004) petition for cert. filed (U.S.
June 30, 2004) (No. 04-23). (“Louisiana does not need to
compel alligator harvesters to support generic marketing, but
could simply fund generic marketing from its general tax
revenues.”). Indeed, the government has funded projects to
“enhance the welfare of beef producers” in the past and has
proposed doing so in the current appropriations cycle.'* For
example, the Livestock Compensation Program provided
government payments to farmers and ranchers based on losses
sustained due to natural disasters. 67 Fed. Reg. 63,070
(Oct. 10, 2002).'° In addition, the government’s response to
Bovine Spongiform Encephalopathy (BSE), or Mad Cow
disease, has come from USDA taxpayer-funded programs and
is not dependent on the existence of the beef checkoff.”° In

'’ The Court has recognized that constitutional interests outweigh any
governmental interest in pecuniary savings. See Lassiter v. Dep't of Social
Services, 452 U.S. 18, 28 (1981) (explaining that although North
Carolina's interest in pecuniary savings was legitimate, it could not
overcome the Due Process rights of its citizens).

'§ In order to increase demand for beef, USDA's Agricultural
Marketing Service has a Commodity Procurement Program that purchases
beef. J.A. 128; 7 U.S.C. § 612c. Also, states have enacted agricultural
commodity purchase programs. See Neil D. Hamilton, Putting a Face on
Our Food: How State and Local Food Policies Can Promote the New
Agriculture, 7 Drake J. Agric. L. 404, 424-27 (2002).

'? The Small Hog Operation Payment program likewise provided
small hog farmers payments based on past production in response to
historically low hog prices in 1998 and 1999. 7 C.F.R. pt. 716. For dairy
farmers, USDA’s Milk Income Loss Contract program compensates dairy
farmers when domestic milk prices fall below a specified level. 7 U.S.C.
§ 7982.

*° For 2005, USDA has budgeted $60 million for BSE-related
activities. See http://www.usda.gov/agency/obpa/Budget-Summary/2005
/19.BSE.htm. The House and Senate also have both passed bills for
additional BSE-related programs in the pending agricultural
appropriations bills. See H.R. Rep. No. 584, 108th Cong. at 43, 51, 85
(2004); S. Rep. No. 340, 108th Cong. at 65, 81, 148 (2004).

28

any event, consumers are not protected by beef checkoff
speech; they are protected by food and feed safety regulations
that will prevent BSE. See, e.g., 21 C.F.R. § 189.5; 69 Fed.
Reg. 1,694 (Jan. 12, 2004). Also, NCBA opposes COOL, the
law that would inform consumers which country beef comes
from so they can avoid buying beef from cattle raised in
countries where BSE has been detected. Petitioners’ cries that
the beef industry will collapse without the mandatory
checkoff ring hollow in light of the facts.

Petitioners argue that the mandatory beef checkoff
“solves the collective action problem by eliminating the
possibility of free riding.” U.S. Br. 40. In addition to the
arguments at pages 15-17, supra, refuting Petitioners’
unsupported free rider theory, there are other reasons why
Petitioners’ free rider argument is misplaced. Congress has
demonstrated that the purporied free rider problem does not
exist in this context-For example, Congress does not always
require every producer of a commodity to pay mandatory
assessments for the commodity’s promotion, research, and
consumer information program. In 2002, Congress exempted
all certified organic farmers, including organic cattle
ranchers, from paying mandatory checkoff assessments.
7U.S.C. § 7401(e). And some checkoff programs impose
mandatory assessments only on producers and processors
with a certain minimum annual production or acreage.”' Oral

*' See. e.g., Dairy Act, 7 U.S.C. § 4502(1) (exempting dairy producers
from outside the 48 contiguous states); Fluid Milk Promotion Act,
7US.C. §6402(4) (exempting fluid milk processors who process
3 million pounds or less per month); Popcorn Act, 7 U.S.C. § 7482(11)
(exempting processors who process 4 million pounds of popcorn or less
per year); Honey Act, 7 U.S.C. § 4606(e)(4) (exempting producers who
market less than 6.000 pounds of honey per year); Potato Act, 7 U.S.C.
§ 2612(e) (exempting farmers who grow less than 5 acres of potatoes);
Watermelon Act, 7 U.S.C. § 4902(5) (exempting farmers who grow less
than 10 acres of watermelons); and Blueberry Order, 7 C.F.R. § 1218.53
(exempting growers who produce less than 2,000 pounds of cultivated
blueberries per year).

29

Argument Tr., United States v. United Foods, Inc., No. 00-
276, 16, ll. 3-7 (Apr. 17, 2001) (counsel for United States)
(conceding that the mushroom checkoff is not imposed on
all those who benefit from the speech.”). This means that, for
each of these checkoff programs, there are “free riders,” in
Petitioners’ parlance.

By exempting certain categories of producers and
processors from compelled financial support of promotion
programs—programs whose benefit, if any, presumably
inures to the non-paying producers and processors of the
commodity as well as the paying contributors—Congress has
shown that avoiding a free rider problem is not of paramount
concern under the checkoff programs. Specifically for this
case, Congress’s willingness to exempt organic ranchers from
paying the beef checkoff reveals its belief that the program’s
intended benefits are attainable without the financial support
of all ranchers. If not all are needed, Petitioners’ general free
rider argument thus falls flat and the mandatory beef checkoff
cannot meet the Court’s test that any regulation be “narrowly
tailored to achieve the desired objective.” Lorillard Tobacco

- Co. v. Reilly, 533 U.S. 525, 556 (2001). The true free rider

problem under the beef checkoff is that only one segment of
the beef industry—the cattle rancher—is forced to pay the
checkoff to support a program that is intended to “strengthen
the position of the beef industry in the marketplace.” 7 U.S.C.
§ 2901(b); see also U.S. Br. 41 (“[The Beef Act] requires
only that cattle producers contribute financially to generic
advertising (and other activities) designed to benefit the beef
industry as a whole by promoting the sale of the product that
the industry exists to market.”). Since the burden of the beef
checkoff falls only on ranchers, while the benefits accrue
largely, if not entirely, to other participants in the industry—
the marketer, meatpacker, food retailer—Petitioners cannot
claim that the Beef Act is “not more extensive than is
necessary.”

30

CONCLUSION
For the foregoing reasons and the reasons set forth in
Respondents’ Brief, the judgment below should be affirmed.
Respectfully submitted,

Susan E. Stokes
Counsel of Record

David R. Moeller

Karen R. Krub

FARMERS’ LEGAL ACTION GROUP, INC.

360 North Robert Street, Suite 500
Saint Paul, MN 55101
(651) 223-5400

Dated: October 15, 2004°

Counsel for Amici were assisted by Farmers’ Legal Action Group
Staff Attorney Jess Anna Speier.

A-1
APPENDIX

List of Amici

American Agriculture Movement
American Corn Growers Association

American Raw Milk Producers Pricing
Association

Citizens Action Coalition of Indiana
Dakota Resource Council

Dakota Rural Action

Empire State Family Farm Alliance
Family Farm Defenders

Farm Wives United

Federation of Southern Cooperatives

. Fort Berthold Land and Livestock Association
. Idaho Rural Council

. Illinois Farmers Union

. Illinois Stewardship Alliance

. Indiana National Farmers Organization

. Intertribal Agriculture Council

. Iowa Citizens for Community Improvement

. Iowa Farmers Union

Kansas Cattlemen’s Association

40.
41.

. Kansas Rural Center

. Land Stewardship Project

Minnesota Farmers Union

. Minnesota National Farmers Organization
. Missouri Farmers Union

. Missouri Rural Crisis Center

Missouri Stockgrowers Association

. National Catholic Rural Life Conference

. National Family Farm Coalition

National Farmers Organization

National Farmers Union

. Nebraska Farmers Union

. Northern Plains Resource Council

. Northern Plains Sustainable Agriculture Society
. Oregon Farmers Union

. Pennsylvania Farmers Union

. Powder River Basin Resource Council

. Rocky Mountain Farmers Union

. Rosebud Indian Land and Grazing Association

Rural Advancement Foundation International-
USA

Rural Coalition

Rural Vermont

42.
. Southern Sustainable Agriculture Working

South Dakota Stockgrowers Association

Group
Sustainable Agriculture Coalition

. Western Colorado Congress
. Western Sustainable Agriculture Working

Group

. Wisconsin Farmers Union

. Women, Food and Agriculture Network

Yahara Food Farm Coalition

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0740%3A17. Public record. Not legal advice.