Opposition Brief — Johanns, Secretary of Agriculture v. Campaign for Family Farms

CR CSR OE —

@ @ | mirm

Nos. 03-1180 and 03-1043 {|_OFFICE OF THE CLERK

eee eT rd

IN THE

Supreme Court of the United States

ANN VENEMAN, SECRETARY, UNITED STATES

DEPARTMENT OF AGRICULTURE, ET AL.,

Petitioners,

v.

CAMPAIGN FOR FAMILY FARMS, ET AL.

MICHIGAN PORK PRODUCERS ASSOCIATION, INC., ET AL.,

Petitioners,

ve

CAMPAIGN FOR FAMILY FARMS, ET AL.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

_ Thomas C. Goldstein Susan E. Stokes

Amy Howe Counsel of Record

GOLDSTEIN & Howe, P.C. David R. Moeller

4607 Asbury Pl., NW Karen R. Krub

Washington, DC 20016 FARMERS’ LEGAL ACTION

GROUP, INC.

46 E. 4th Street. Suite 1301

St. Paul, MN 55!01

(651) 223-5400

April 19, 2004

SNE RE a Set iio mt oN een ah

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

i BEST AVAILABLE COPY |

; 3 ABA RS

RULE 29.6 STATEMENT

The Campaign for Family Farms is an unincorporated

association. No parent or publicly owned corporation owns

10 percent or more of the stock of the Campaign for Family

Farms.

ii

PARTIES TO THE PROCEEDINGS BELOW

The United States petitioners in this case are Ann

Veneman, Secretary, United States Department of

Agriculture, and the United States Department of Agriculture.

The private petitioners include the Michigan Pork Producers

Association, Inc., California Pork Producers Association,

Kentucky Pork Producers Association, Indiana Pork

Producers Association, New York Pork Producers

Cooperative, Inc., Ohio Pork Producers Council, High Lean

Pork, Inc., Pete Blauwiekel, and Bob Bloomer.

The respondents in this case are the Campaign for Family

Farms, James Dale Joens, Richard Smith, Rhonda Perry, and

Larry Ginter.

The National Pork Producers Council was a party in the

proceedings below.

The United States’s petition erroneously listed the

Cattlemen’s Beef Promotion and Research Board as a party to

the proceeding in this case.

iil .

TABLE OF CONTENTS

PR tO CB Ae CRUE S, cccnisanicacsnithoncacssscivensanssussesecsnesheetiscs i

PARTIES TO THE PROCEEDINGS BELOW ..................... il

Ee RTE Tia dacensnckenshedhstsnsinasinsnstenteseriscesscsssccse ili

RI FAA RRO EID vnc etevidericicsevenevnasscssscoceccessesacsesene Vv

EPR BRIE © WE REEES CAS iccciccnnsscccsscsscemncssenesescoscscccesscoees l

ITE Sitchin hicticabcansunsdinventucsaasrerssussctennssexencéscakhasenssane 10

I.. This Court Should Not Grant Certiorari Because

the Ruling Below Was Correct............scccccseceesseeees 12

A. The Pork Checkoff Is Not Government

MINN Ushidl ics starccanserbonsolGioncescadeheccsaasaxaesnbsannonsehne 12

1. The Pork Checkoff Is a Private Self-

Fe es iisincsdanidcnsiiinasspanndesemsaesssiis 13

2. ‘The Pork Checkoff Is Privately

Rs eictatcessnienpersnihansinasiasieniscomncasbess 14

3. The Government Exercises Only Pro

PE II sinnscsnnsosindstsnirosonsvescnseass 17

4. There Is No Conflict Among the

Circuits Regarding the Application of

the Government Speech Doctrine to

Commodity Checkoffs...............cseccsssees 18

B. The Pork Checkoff Is Unconstitutional

RP PAIN RII icinscisssonsssareveressacneadessonsses 18

1. Central Hudson \s Inapplicable............. 19

2. Even If Central Hudson Applied,

There Would Be No Basis to Sustain

ae 19

a. The Governmental Interest Is

Be ic ciciirannuticscantocesnssees 20

b. The Pork Checkoff Does Not

Directly Advance Any Asserted

Governmental Interest.................... 21

iV

c. The Pork Checkoff Is Far More

Extensive Than Necessary to

Serve Any Asserted

Governmental Interest.................... 22

C. The Injunction Ordered by the District

Court and Affirmed by the Sixth Circuit Is

the Only Feasible Remedy. ...............cssecceseseees 23

1. The Injunction Cannot Be Limited to

IIE, siscinssisncrsstinsmasentihinaniaitesiinsines 23

2. The Injunction Cannot Be Limited to

Promotional or Advertising

PID eri ccnnsiisctinnsicininiinanitaiiimsiiees 25

II. This Court Should Deny Certiorari in Both the

Present Case and in Veneman v. LMA, But If It

Grants Certiorari in Either Case, It Should Grant

F_UN RROD ROT PI Rar rare MBSE NORE ITO POE ee 27

PRD es sdanianiiesdiesiotsanisidentieskmuniatiniiiaacesmnbbinieiiaiapiidie 30.

Vv

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)...... 16, 26

Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987)............. 25

American Mining Cong. v. U.S. Army Corps of

Engineers, 962 F. Supp. 2 (D.D.C. 1997)..........ceesscseseees 24

Blount v. Rizzi, 400 U.S. 450 (ADT) acccscsoacsocascssccnsctcccscccsecss 24

Board of Regents of Univ. of Wis. Sys. v. Southworth,

SEPA sdbe AF FC isinkesdansiaiiniciaibiiaapibcedenensediaiitaininiuiites 15

Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987).............000 25

Califano v. Yamasaki, 442 U.S. 682 (1979) wu...ceeccceeceeseeeees 24

Campaign for Family Farms v. Glickman, 200 F.3d

ERD Ga Te, BOD ccceccissasinsnseis tesnsehdiaedsdesinenssbabitatinns 4,25

Central Hudson Gas & Elec. Corp. v. Pub. Serv.

Contetn' 0, 407 UG. S57 CUS svictiiinstensrarsnrecsiechinnsinas passim

Chevron U.S.A., Inc. v. Natural Res. Defense Council,

BC. SBT BRT CRBS scithecsititsinedeincctctthasstentcibianandiata 18

Cochran v. Veneman, 359 F.3d 263 (3d Cir. 2004)....... passim

Cox v. New Hampshire, 312 U.S. 569 (1941)........ccccceeeeeeees 16

Decker v. O’ Donnell, 661 F.2d 598 (7th Cir. 1980)............. 24

Dimension Financial Corp. v. Board of Governors of

the Fed. Res. Sys., 744 F.2d 1402 (10th Cir. 1984).......... 24

Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S.

SEF TE tc hiniicatisiiestinpbeiiiiascnicsiceasinstadiailanieninlaeice dit Ra Rent. passim

Goetz v. Glickman, 525 U.S. 1102 (1999).......cseseseeeseeeee LI

Greater New Orleans Broad. Ass'n v. United States,

ET Shes: 1. FALE Pe ea snetinclnannpaniienahdeadisingiemaenaniinndeaiiies 21

Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450 (1988)........ 16

Keller v. State Bar of Cal., 496 U.S. 1 (1990)............... passim

Lebron v. National R.R. Passenger Corp., 513 U.S.

SPA (TDR) sccersinrsiescnsasisscnisisbiaastensestocttiapaiiaddassuasiiseeiocanssate 14

vi

Livestock Marketing Ass'n v. United States

Department of Agriculture, 207 F. Supp. 2d 992

(IN EXS DD, BODE) ccsnnsiicticsitiiaiasslibeisiasiibabaniitiiaceasveviingiinis 21, 28

Livestock Marketing Ass'n v. United States

Department of Agriculture, 335 F.3d 711 (8th Cir.

2003), petitions for cert. filed (Feb. 13, 2004) (Nos.

03-1164 and 1, 11, 14, 20

Michigan Pork Producers Ass'n v. Campaign for

Family Farms, 174 F, Supp. 2d 637 (W.D. Mich.

Pelts & Skins, LLC v. Landreneau, No. 03-30523,

2004 U.S. App. LEXIS 6364 (Sth Cir. Apr. 2, 2004) passim

Rosenberger v. Rector & Visitors of Univ. of Va., 515

US. BE Ce aiisiscecsiehdeeiinsisbbalaliaiihtaniadi iad le raat 15

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) .........0008 22

Rust v. Suatiivan, SOE. 1 FS CSI is cakistceseticsinwicarsiccistinns 15

United States v. Frame, 885 F.2d 1119 (3d Cir. 1989),

cert. denied, 493 U.S. 1094 (1990).................ccccccccsssssceves 18

United States v. Sperry Corp., 493 U.S. 52 (1989)..........006 16

United States v. United Foods, Inc., 533 U.S. 405

(ZEIT) cecnceinncesncesstcstgidicibellctaiatabathiealienieat sedate sigs eect tigspiees passim

Veneman v. Livestock Marketing Ass’ n, No. 03-1164

(Tideed BIG: 13, DCD ccvsssisdscsenncetseniipindeiatinnsinaiasinaheatioeigiaiels 10

Virginia v. American Booksellers Ass’ n, 484 U.S. 383

(1 DCB). .<ciitsscccsnncgesoniesniienctatieeeebiehatemesscniiniesiibbhtainsisiie sain ne

Constitutional Provisions

U.S. Cees NE Evo cciuiicsisrnnindbninsielatibseetadsbiniee etek ic: ]

Statutes

TUBA. © A os iteeicstase inn ieheiiticnseeirininaiaa a 1,43

T USC. & SACL) evinicncscresseciicsbiniilahsianimeiniaeel teens 25

T USAC, § SEINE) serisconsnssniisnrsesaninctinenepevestommiiiganes 14, 15

Feces Oe I ciddndadeiaihipliideindintbisatsbasssesbsansintebelusacnads 14

Fn eI Ghai diadds Leepnicadssanrienvenitnntinnsipiennidiopaiiaas ie ae

Ti EE ilicinneesnsscsnnneibeinnnipasnihntignnaniriahibinn 13

Fes ET ini icncinipinatigsnniitelncdinstiiiiidladglbsinhantiies 13

Fe dia caida shiiciedsasbitisdstisanidabebenbeemltdieiaas 13

Fe aca saatcackuditidbacnssniasatithedatcl ei iinianevacselisiceublacii 13

Rules

A RIMES RSS AEGAN RC eee ar Seat ey Nr DEO ae NRE 12

Sik a HEP Chsncslaciisneichidiieitnla bicea dis ticdhainhassdvabsaniddenpuaaleilietnebinlt 11

Regulations

Ph oF OE Ge 7g RIRSTRNTITUELT TON NU Mme rR Tee tothe ENTE IIE CO OAT: 24

Ee RF is acviticeitahchakcaceaded ba acnsiedistieocnsisubics 16

aS NE eioattha ss tas sondddeddscasncsdapttielinicietesniatinteinwsebiaaion 23

Legislative Materials

8 COMM TG, ce Cte CMA ccs ceeccicsdvenncinciscinsetvopnenunteds 13

H.R. Rep. No. 99-271, 99th Cong., Ist Sess. 190

(1985), reprinted in 1985 U.S.C.C.A.N. 1103 ............0008 13

S. Rep. No. 99-145, 99th Cong., Ist Sess. 331 (1985),

reprinted in 1985 U.S.C.C.A.N. 1676 .......csccsssscssseesserees 13

Other Authorities

Agricultural Marketing Services News Release, USDA

Approves Mushroom Program Assessment

Reduction, No. 176-01 (Aug. 3, 2001), available at

http://www.ams.usda.gov/news/176-01.htm ............ thoioews 28

Agricultural Marketing Services News Release, USDA

Approves Mushroom Program Assessment

Increase, No. 281-02 (Nov. 6, 2002), available at

http://www.ams.usda.gov/news/28 1-02.htm ..........:..s0000 28

Vill

Agricultural Marketing Services News Release, USDA

Approves Mushroom Program Assessment

Increase, No. 291-01 (Dec. 4, 2001), available at

http://www.ams.usda.gov/news/29 1-01 Atm ...........eseceeee 28

Geoffrey S. Becker, Hog Prices: Questions and

Answers, Congressional Research Service (updated

Dec. 15, 1999), at http://

www.ncseonline.org/NLE/CRSreports/A griculture/

RIE i ccceccssnistsiiascdaciuneneiaiipslintinnsuiedioctniadnbsiibanmesessngsnions 3

Joseph W. Luter, III, To Our Shareholders, Smithfield

Foods, Inc., 2000 Annual Report (July 7, 2000),

available at

http://www.smithfieldfoods.com/Investor/pdf/sfd_a

TE cid inicintcatatintenacistnnipianvinbsisninitasignbintideithtimntnehibideledsaaseiids 3

Neil E. Harl, The Structural Transformation of

Agriculture (Mar. 20, 2003), available at

http://www.econ.iastate.edu/faculty/harl/StructuralT

I cic cnisacinbesnisicthhcdesitingpsiiiparaassarcenincese 3

Rod Smith, ‘Clear Picture’ Emerging for Pork

Producers; Choices and Opportunities Ahead Are

‘Staggering,’ Feedstuffs, Vol. 70, No. 44, Oct. 26,

NFDW senenicnctehscncsiltiipeedabianpeilintlivadvvitttis eittidacindascribicuniatisabesisis 4

USDA Grain Inspection, Packers and Stockyards

Administration, Assessment of the Cattle and Hog

Industries Calendar Year 2001 (June 2002),

available at

http://www.usde.gov/gipsa/pubs/0 | assessment/01 as

ET inert sictnnpiinaniaicemnaibiiaievintinniietnniadeeineiag 3

ix

Written Testimony of the Organization for

Competitive Markets presented to the U.S. Senate

Judiciary Comm., Subcomm. on Antitrust,

Competition Policy and Consumer Rights (July 23,

2003), available at

http://competitivemarkets.com/news_and_events/pr

I, FI POA onciscscencocoteesbessatcntaccrcorsiednnasonsse 3

STATEMENT OF THE CASE

In the three years since this Court’s decision in United

States v. United Foods, Inc., 533 U.S. 405 (2001), the courts

of appeals have all reached the same conclusion: mandatory

agricultural assessment programs violate the First

Amendment of the U.S. Constitution. The Sixth Circuit’s

decision in this case striking down the Pork Promotion,

Research, and Consumer Act, 7 U.S.C. § 4801 ef seg. (the

“pork checkoff” or “Pork Act”), is entirely consistent with the

recent decisions of the Third, Fifth, and Eighth Circuits

regarding other checkoff programs. Livestock Marketing

Ass'n v. United States Department of Agriculture, 335 F.3d

711 (8th Cir. 2003), petitions for cert. filed (Feb. 13, 2004)

(Nos. 03-1164 and 03-1165) (“LMA”) (beef checkoff); see

also Cochran v. Veneman, 359 F.3d 263 (3d Cir. 2004) (dairy

checkoff); Pelts & Skins, LLC v. Landreneau, No. 03-30523,

2004 U.S. App. LEXIS 6364 (Sth Cir. Apr. 2, 2004)

(Louisiana alligator checkoff).

| The United States and private petitioners’ argue that this

Court should revisit the constitutionality of checkoff

programs, since United Foods did not consider the claim that

these programs are somehow immune from First Amendment

scrutiny because they involve “government speech.” But that

claim has been squarely rejected by all four courts of appeals

that have considered checkoff programs. See Appendix to the

U.S. Petition for Certiorari (“U.S. Pet. App.”) 8a; LMA, 335

F.3d at 720; Cochran, 359 F.3d at 268; Pelts & Skins, 2904

U.S. App. LEXIS 6364, at *15. Thus, petitioners have

' Two petitions for certiorari have been filed in this case. For ease of

reference, we refer to the petitioners in No. 03-1180 as “the United States”

and to the petitioners in No. 03-1043 as “the private petitioners.”

Respondents address herein facts that bear on issues that would properly

be before this Court if certiorari were granted, but do not address the array

of inflammatory and sometimes false statements of facts asserted by the

private petitioners.

2

presented no compelling reason for this Court to grant

certiorari in either of the now-pending cases. If, however, the

Court decides to hear either case, it should hear both in order

to resolve the constitutionality of these programs once and for

all.

1. Respondents are the Campaign for Family Farms

(CFF) — a coalition of family farm organizations with

hundreds of hog farmer members — and four individual hog

farmers. CFF’s mission is to ensure the continued existence of

family farms in the face of increasing industrialization of

agriculture.” U.S. Pet. App. 14a, 18a. Respondents oppose the

mandatory pork checkoff because its objectionable

ideological speech is aligned with policies that have had a

devastating economic effect on family farms and the rural

communities they support. /d. 18a.

2. The Norman Rockwell image of rural America is

rapidly disappearing as the number of farms shrinks, the size

of farms grows, and ownership and management of

agricultural operations is consolidated in the hands of a

shrinking number of individuals and corporations.° Those

farmers who do raise hogs are increasingly raising them not

as independent producers, but on behalf of others, usually a

? CFF filed an amicus brief with this Court in United Foods urging

affirmance of the Sixth Circuit's ruling.

* USDA statistics show the steady exit of independent hog farmers

from the hog industry over the past twenty years. C.A. App. 822. In the

mid-1980s, prior to the enactment of the pork checkoff, there were

approximately 500,000 hog farms in the nation. As of year-end 2002, that

number had shrunk to 75,350 hog operations. /d. 1194, C.A. Addendum 1.

While the number of hog farms has declined, the total number of hogs

produced has remained relatively stable, resulting in increasingly large

hog operations. See William D. McBride & Nigel Key, Economic and

Structural Relationships in U.S. Hog Production—Agricultural Economic

Report No. 818, at 5 (Feb. 2003), available at http://www.ers.usda.gov/

publications/aer8 18/aer8 18.pdf.

4

.

packer or packer affiliate.* Combined with this increasing

vertical integration in hog production is continued corporate

consolidation of processing capacity.” Independent hog

farmers are being left without a competitive market in which

to sell their hogs, driving them out of business or into

unfavorable contracts with packers. See, e.g., Neil E. Harl,

The Structural Transformation of Agriculture 4-5 (Mar. 20,

2003), available at http://www.econ.iastate.edu/faculty/harl/

StructuralTransformationofAg.pdf.

The hog industry reached a watershed moment at the end

of 1998 and beginning of 1999, when hog prices hit record

lows and hog farmers could not break even.° Geoffrey S.

Becker, Hog Prices: Questions and Answers, Congressional

Research Service (updated Dec. 15, 1999), at http://

www.ncseonline.org/NLE/CRSreports/A griculture/ag-68.cfm.

During this crisis, more than 15,000 hog farmers quit

producing hogs. USDA National Agricultural Statistics

Service, Hogs and Pigs Report 21 (Dec. 28, 1999), at

* A 2002 National Pork Board (NPB) study showed that more than

83% of hogs at that time were committed to packers before slaughter

through packer ownership or contractual arrangements, up from 38% in

1994. C.A. App. 1248.

* In 2000, four firms controlled 56% of the nation’s hog processing

industry. USDA Grain Inspection, Packers and Stockyards

Administration, Assessment of the Cattle and Hog Industries Calendar

Year 2001, at 18, 38 (June 2002), available at http://www.usda.gov/gipsa/

pubs/0lassessment/Olassessment.pdf. Smithfield, the nation’s largest

processor, recently acquired Farmland Industries, which only increased

the consolidation of processing power. See, e.g., Written Testimony of the

Organization for Competitive Markets presented to the U.S. Senate

Judiciary Comm., Subcomm. on Antitrust, Competition Policy and

Consumer Rights (July 23, 2003), at http://judiciary.senate.gov/testimony

cfm?id=869& wit_id=2452.

° While hog prices were at record lows, retail pork prices did not

decline accordingly and processors like Smithfield posted near-record

profits. See Joseph W. Luter, III, To Our Shareholders, Smithfield Foods,

Inc., 2000 Annual Report 3 (July 7, 2000), available at http://www.

smithfieldfoods.com/Investor/pdf/sfd_ar00.pdf.

4

http://usda.mannlib.cornell.edu/reports/nassr/livestock/phpbb/

1999/hgpg1299.pdf.

Throughout this period of consolidation and record low

prices, a private commodity group, the National Pork

Producers Council (NPPC), acted as the general contractor for

the $50 million annual pork checkoff. Many hog farmers,

including respondents, sharply disagreed with being

associated with the tactics and policies pursued by NPPC. For

example, in response to the 1998 hog crisis, NPPC’s CEO

told producers to expand and seize the market share left by

the hog farmers being driven out by the record low hog

_ prices. Rod Smith, ‘Clear Picture’ Emerging for Pork

Producers; Choices and Opportunities Ahead Are

‘Staggering, Feedstuffs, Vol. 70, No. 44 at 23, Oct. 26, 1998.

This comment, seen by many as reflecting NPPC’s alignment

with industrialized agriculture, drove thousands of hog

farmers to sign petitions calling for a referendum to terminate

the checkoff program.

3. The origins of this case stem from respondents’

collection and submission to USDA of those petitions.’ Based

on the petitions, Agriculture Secretary Glickman ordered a

referendum that was held in August and September 2000. See

Michigan Pork Producers Ass'n v. Campaign for Family

Farms, 174 F. Supp. 2d 637, 639 (W.D. Mich. 2001)

(“MPPA”). On January 11, 2001, Secretary Glickman

announced that “15,951 producers disfavored the Program

and 14,396 producers favored the Program,” and issued an

order terminating the checkoff. U.S. Pet. App. 17a. Private

petitioners and NPPC filed suit, challenging both the counting

of the votes and the legal basis for terminating the program.

’ NPPC attempted to obtain the names and addresses of the hog

farmers who had signed the referendum petitions through a Freedom of

Information Act request. CFF filed suit against USDA to block release of

the information, and the Eighth Circuit ordered a permanent injunction to

protect the hog farmers’ privacy. See Campaign for Family Farms v.

Glickman, 200 F.3d 1180 (8th Cir. 2000).

5

Respondents intervened in support of the referendum and

termination decisions. In February 2001, newly appointed

Agriculture Secretary Veneman_ reversed Secretary

Glickman’s decision to terminate the pork checkoff. MPPA,

174 F. Supp. 2d at 639. Secretary Veneman settled the suit

with the private petitioners through an agreement to continue

the pork checkoff, albeit with a change in how it would be

administered. U.S. Pet. App. 17a. Respondents then filed

cross-claims against USDA.

In December 2001, the district court upheld Secretary

Veneman’s decision to continue the pork checkoff as within

her discretion. MPPA, 174 F. Supp. 2d at 648. After United

Foods, respondents added cross-claims alleging violations of

their First Amendment rights of freedom of speech and

association.

4. On October 25, 2002, the United States District Court

for the Western District of Michigan granted respondents’

motion for summary judgment on their constitutional claims,

holding that the pork checkoff, like the mushroom checkoff,

was “unconstitutional and rotten,” and violated respondents’

First Amendment rights of free speech and association. U.S.

Pet. App. 55a. The district court then enjoined operation of

the pork checkoff. /d. 53a. In response to the petitioners’

argument that the program was immune from First

Amendment scrutiny under the “government speech”

doctrine, the district court held that the program was not in

fact government speech; rather, it was “a self-help program

for pork producers.” /d. 47a. The district court acknowledged

the Secretary’s participation in the workings of the National

Pork Board (NPB), but determined that “this involvement

does not translate the advertising and marketing in question

into ‘government speech’ as the federal courts have

interpreted that term. You cannot make a silk purse from a

sow’s ear. This defense fails as a matter of law.” /d.

The district court recognized that respondents and the hog

farmers they represent have “sincere philosophical, political

6

and commercial” objections to the mandatory pork checkoff.

Id. 50a. The court noted the “frustration” of independent

farmers who object to all aspects of the pork checkoff because

it supports a system of agriculture that is anathema to their

core beliefs about what agriculture is and should be. /d. 51a.

Put simply, respondents object to paying to support a system

they believe is driving them out of existence. See id. 18a-19a.

Furthermore, the district court acknowledged that

respondents have clearly and consistently articulated their

economic and ideological objections to every aspect of the.

pork checkoff, including the generic promotion of pork. First,

generic advertising fails to distinguish the unique qualities

and attributes of hogs raised by independent family farmers.

Id. 19a. Second, generic advertising promotes an

industrialized method of production that respondents oppose.

The “Pork. The Other White Meat” slogan is intended to

create a demand for lean pork that comes from hogs raised in

what respondents believe are unhealthy and inhumane

conditions. /d. Third, generic advertising promotes a product

respondents do not sell. Hog farmers sell hogs, not pork.

Packers and retailers sell pork. /d. Fourth, because the

checkoff promotes a product they do not sell, respondents do

not benefit from it. /d.

Moreover, the district court validated respondents’

objections to other aspects of checkoff promotion campaigns.

In addition to generic advertising, the checkoff has also

funded “branded advertising,” which promotes the products

of particular packers and retailers. /d. 20a. Because packers

own their own hogs in growing numbers, through checkoff-

funded branded advertising hog farmers are in fact forced to

pay for the advertising of their direct competitors. /d.* The

packers whose advertising budgets are being subsidized by

hog farmers are also direct competitors of hog farmers such as

* One checkoff-funded “branded” radio ad promoting Hormel pork ran

in Colorado, where Hormel owns 25,000 sows. C.A. App. 439, 494-97.

7

respondents Joens and Perry, who have joined with other hog

farmers to slaughter their own hogs and market their pork. /d.

Respondents’ objections to the other aspects of the pork

checkoff — the “research” and “consumer information”

portions — are equally ardent. They believe the “information”

made available to consumers promotes and encourages

consumers to participate in a system respondents abhor. For

example, respondent Jim Joens objects to the pork checkoff’s

consumer information projects on “animal welfare”:

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 corporate

confinement facilities.

Id. Respondent Richard Smith similarly objects to being

compelled to pay for “education” of producers:

These programs are for people that work in the

corporate hog factories that have never seen a hog

before they went to work for a huge conglomerate. I

object because this is independent producer money

going to a program that is focused on corporate hog

factories and not the independent producers who

believe in animal husbandry and who have been

handling hogs humanely for years. I don’t believe in

giving shots unless we have to. If a hog is sick then I

vaccinate it or give it a shot ani so I think we have a

cleaner hog. These programs are for the education of

factory producers.

Id. 20a-2 1a.

As highlighted by the district court, the research funded

by the pork checkoff is just as ideologically abhorrent to

independent hog farmers. A primary focus of checkoff-funded

research is in the area of what the checkoff terms

“Antimicrobial Resistance and Alternatives Research,”

meaning the continuous feeding of phil teedic levels of

8

antibiotics to hogs to promote growth and prevent disease.

See id. 21a; National Pork Board, Pork Checkoff Report, Vol.

22 No. 1, 10-13 (Winter 2003), available at http://www.pork

board.org/docs/porkcheckoffQtr12003.pdf. Respondent

Rhonda Perry, like many independent hog farmers, opposes

this practice and strongly objects to funding and being

associated with this research and the industrialized method of

agriculture it promotes through checkoff communications:

I object to NPB using my checkoff dollars to

convince the public and policymakers that the pork

industry as a whole is looking out for the health of

the general public. Subtherapeutic antibiotic usage

has become general industry practice in factory farm

production. Many people are increasingly aware of

the problems being created by these practices. That

is why we have standards for Patchwork Family

Farms [the entity through which she processes and

markets her hogs] that limit the use of antibiotics. It

appears to me as though checkoff dollars are being

used to “convince” people that constant feeding of

subtherapeutic antibiotics is not a_ significant

problem or at least to fund research to show that it

isn’t a problem.

See U.S. Pet. App. 21a; C.A. App. 159.

Finally, the district court rejected petitioners’ arguments

that the remedy should be applied only to respondents, ruling

that so limiting the injunction would “essentially re-write the

Act in a manner inconsistent with judicial interpretation,”

since the Pork Act does not allow voluntary participation. /d.

52a-53a. The district court declared the Pork Act

unconstitutional and enjoined the collection of assessments

and the operation of the pork checkoff. /d. 53a.

5. Petitioners appealed. The Sixth Circuit initially stayed

the injunction, and then affirmed the district court. /d. 12a.

The court of appeals determined that the Pork Act “is nearly

identical in purpose, structure, and implementation to the

9

Mushroom Act.” /d. 10a. Like the other courts of appeals that

have considered checkoff programs, the Sixth Circuit

followed this Court’s clear precedent in United Foods and

ruled the Pork Act unconstitutional.

Addressing the principal issue left open by this Court in

United Foods, the Sixth Circuit affirmed the district court’s

ruling that the pork checkoff cannot be saved by the

government speech doctrine, given the “pork industry’s

extensive control” over the program. /d. 8a. The court of

appeals based its ruling on several factors. First, it found that

the primary purpose of the Pork Act is to market pork and

strengthen the pork industry. /d. Second, the court of appeals

found that the program is funded not by general tax revenues,

but rather from mandatory assessments paid by pork

producers. The court of appeals noted that not only does the

Pork Act prohibit the use of government funds for the

checkoff, but the Secretary and her staff are actually

reimbursed from the assessments for any time or expenses

related to the program. /d. Third, the Sixth Circuit found that

the government’s oversight of the checkoff is limited,

concluding:

In sum, the costs and content of the speech in

question are almost completely the responsibility of

members of the pork industry. The First Amendment

does not lie dormant merely because the government

acts to consolidate and facilitate speech that is

otherwise wholly private.

Id. 9a.

The Sixth Circuit rejected petitioners’ attempt to

distinguish this case from United Foods by claiming that most

of the funds collected under the Mushroom Act were used for

generic advertising, while only a small percentage of the pork

checkoff funds were so used. The record showed that at least

fifty-one percent of the 2001 budget was listed under the

category of “Demand Enhancement,” which includes many

forms of promotion. /d. lla. Moreover the Sixth Circuit

10

affirmed the district court’s finding that the pork checkoff-

funded programs for “education” and “research” “were

designed to further the Act’s promotional goals.” Jd. 12a.

Accordingly, the court of appeals concluded that “the Pork

Act serves but one purpose: promotion.” /d. Thus, compelled

assessments are unconstitutional under United Foods.

Finally, the Sixth Circuit also rejected the argument

(preserved by the United States in a single footnote in its

appellate brief) that the case should be analyzed under the test

for restrictions on commercial speech set forth in this Court’s

decision in Central Hudson Gas & Electric Corp. v. Public

Service Commission, 447 U.S. 557 (1980). U.S. Pet. App.

12a. The court of appeals distinguished this case from cases

governed by Central Hudson because “[t]he Pork Act does

not directly limit the ability of pork producers to express a

message; it compels them to express a message with which

they do not agree.” Jd. (emphasis added). Central Hudson

has never been applied to a case involving compelled speech.

Id. (citing Glickman v. Wileman Bros. & Elliott, Inc., 521

U.S. 457, 474 n.18 (1997)). The court noted: “It is one thing

to force someone to close her mouth; it is quite another to

force her to become a mouthpiece.” /d.

6. The Solicitor General has filed petitions for certiorari

in this case and in a parallel case in which the Eighth Circuit

declared the beef checkoff unconstitutional. Veneman v.

Livestock Marketing Ass’n, No. 03-1164 (filed Feb. 13,

2004). This Court should deny certiorari in both cases, but if

it grants certiorari in either case, it should grant the

government’s petition in both cases and set them for oral

argument together.

ARGUMENT

The petition for a writ of certiorari should be denied.

Petitioners ask this Court to grant certiorari on an issue on

which there is no conflict among the federal courts of appeals.

Following this Court’s decision in United Foods, four courts

of appeals have found an array of checkoff programs

1

unconstitutional, See U.S. Pet. App. 14a (6th Cir. 2003) (pork

checkoff); LMA, 335 F.3d 711 (8th Cir. 2003) (beef

checkoff); Cochran, 359 F.3d 263 (3d Cir. 2004) (dairy

checkoff); Pelts & Skins, 2004 U.S. App. LEXIS 6364 (5th

Cir. 2004) (Louisiana alligator checkoff). Each of those courts

considered and unequivocally rejected the government speech

argument raised by petitioners here. No court of appeals has

come to a contrary conclusion. There being no conflict among

the circuits, there is no compelling reason for this Court to

grant the petitions. See S. Ct. R. 10(a).

That there remain issues not addressed by this Court

relating to these commodity promotion programs is due

entirely to the government’s choice of litigation tactics. In the

two commodity promotion cases this Court has already

decided, the government either waived the government

speech argument, Wileman Bros., 521 U.S. at 482 n.2, or

failed to raise it in the court of appeals, United Foods, 533

U.S. at 416-17. As to the government’s newfound argument

that these compelled speech cases should be governed by

Central Hudson (see U.S. Pet. 19 n.3), the government has

twice declared to this Court that Central Hudson should not

apply to such programs. See C.A. App. 1341-42 (arguing in

United Foods that “the Central Hudson test, which involves a

restriction on commercial speech, should [not] govern a case

involving the compelled funding of speech”) (brackets in

original); U.S. Br. 14-15, Goetz v. Glickman, 525 U.S. 1102

(1999) (No. 98-607) (asserting: “As the Court made clear in

Wileman Bros., Central Hudson, a case involving a

restriction On commercial speech, is inapplicable in cases,

such as this one, involving compelled funding of commercial

speech.”) (emphasis in original). In the instant case, the

United States did not even argue to the Sixth Circuit that

Central Hudson should be applied; it simply preserved the

argument in a footnote in its brief. U.S. C.A. Br. n.3. The

government should not be permitted to burden this Court by

creating a moving target, raising and waiving issues without

end.

12

Petitioners’ arguments for review are also inappropriate

because they largely seek review of factual, rather than legal

conclusions. See S. Ct. R. 10. In arguing that the lower courts

were wrong in not applying the government speech doctrine,

petitioners primarily take issue with the district court and

court of appeals’ characterizations of how the program

operates in fact. See, e.g., U.S. Pet. 13-15. Such asserted

errors do not warrant this Court’s review.

If, however, this Court grants certiorari in either this case

or LMA, it should grant it in both cases. The federal and state

governments have enacted a number of commodity checkoff

programs of this type; thus far, review of these programs has

been conducted on a case-by-case basis with the United States

often taking fundamentally inconsistent positions in different

cases. This Court’s consideration of how such programs

operate across different factual contexts will assure a widely

applicable final resolution of the First Amendment questions

they present.

I. This Court Should Not Grant Certiorari Because

the Ruling Below Was Correct.

The Sixth Circuit’s holding is compelled by this Court’s

decision in United Foods. None of the arguments raised by

petitioners — that the program is immune from First

Amendment scrutiny because it is government speech, that

the claims should be governed by the more relaxed standard

set forth by this Court in Central Hudson, or that the

injunction is overly broad — warrants Supreme Court review.

Because the mandatory assessments under these checkoff

programs are just as unconstitutional now as they were in

June 2001 when this Court decided United Foods, the

petitions for certiorari should be denied.

A. The Pork Checkoff Is Not Government Speech.

The Sixth Circuit’s holding that the pork checkoff cannot

be sustained under the government speech doctrine is both

correct and consistent with the holdings of its sister circuits

13

and this Court’s rulings. Because there is no conflict among

the circuits or with any decision of this Court, petitioners

demonstrate no compelling reason for this Court to grant

certiorari on this issue.

1. The Pork Checkoff Is a Private Self-Heip

Program.

The pork checkoff was enacted in 1995 as a stand-alone

industry “self-help” program, along with several other such

programs. U.S. Pet. App. 47a; S. Rep. No. 99-145, 99th

Cong., Ist Sess. 331 (1985), reprinted in 1985 U.S.C.C.AN.

1676, 1997; H.R. Rep. No. 99-271, 99th Cong., Ist Sess. 190

(1985), reprinted in 1985 U.S.C.C.A.N. 1103, 1294; 131

Cong. Rec. $16,090 (1985); C.A. App. 2203, 2237: 7 U.S.C.

§§ 4801-4819. Congress itself has stated that -ommodity

promotion programs, such as the pork checkoff and the beef

checkoff, are intended to be ““self-help’ mechanisms for

producers and processors to fund generic promotions for

covered commodities.” 7 U.S.C. § 7401(b)(8). Throughout

the pork checkoff’s existence, all checkoff-funded

communications have told producers and the world that the

checkoff is run by and for producers. See, e.g., C.A. App.

2200, 2237. Checkoff ads proclaim that they are brought to

you by “America’s Pork Producers.” /d. 724.

The pork checkoff is run entirely by private pork

producers, not the government. The Pork Act itself endows

NPB, not the government, with the powers and duties of

developing checkoff-funded projects. 7 U.S.C. § 4808(b)(1).

NPB members are not considered government employees,

C.A. App. 1367, and they are reimbursed for their expenses

from the collected assessments. 7 U.S.C. § 4808(a)(1)(6).

NPB’s Executive Vice President admitted that NPB “is not to

be considered as a governmental entity/agency or a

government contractor.” U.S. Pet. App. 3a-4a.”

” Private state pork associations receive approximately 20% of all

checkoff assessments. 7 U.S.C. § 4809(c)(1); id. § 4806(g). The Secretary

14

The Pork Act specifically prohibits government regulation

of the pork industry. It prohibits the imposition of quality

standards and control of production of pork or pork products.

7 U.S.C. § 4801(b)(3).

Nothing in Lebron v. National Railroad Passenger Corp.,

513 U.S. 374 (1995), suggests that NPB is a government

agency. In Lebron, this Court found that Amtrak (which is

subsidized with government funds) is an agency of the

government for purposes of analyzing whether it had

restrained an individual’s speech in violation of the First

Amendment. Jd. at 394. That decision explicitly did not

extend to the issue of whether an entity is a government

agency for purposes of creating a “privilege” of the

government. /d. at 399.

The fact that checkoff programs were enacted to help the

private industries they promote has been a significant factor

in each of the decisions of the courts of appeal declaring the

various checkoff programs unconstitutional. See U.S. Pet.

App. 8a-9a (pork); Cochran, 359 F.3d at 270-71 (dairy);

LMA, 335 F.3d at 725-26 (beef); Pelts & Skins, 2004 U.S.

App. LEXIS 6364, at *22 (Louisiana alligator checkoff). In

light of these clear rulings, there is no good reason for this

Court to grant certiorari on this issue.

2. The Pork Checkoff Is Privately Funded.

The Sixth Circuit also held that pork checkoff-funded

speech cannot be government speech because the pork

checkoff must be conducted “at no cost to the Federal

Government.” U.S. Pet. App. 4a (quoting 7 U.S.C.

§ 4801(b)(2)). That holding follows the guidance this Court

has provided on government speech which shows that, to be

considered government speech, the speech in question must,

at a minimum, be funded by the government. In Keller v.

has no role in appointing or approving the leadership of the state

associations. 7 U.S.C. § 4802(16); 7 C.F.R. § 1230.25.

15

State Bar of California, 496 U.S. 1 (1990), this Court rejected

application of the “so-called government speech doctrine,” in

part because the bar association was funded by dues paid by

members of the bar and not appropriations from the

legislature. Jd. at 10-11.

Statements in this Court’s other cases likewise support the

Sixth Circuit’s holding that the underpinning of the

government speech doctrine is government funding. In Board

of Regents of University of Wisconsin System v. Southworth,

529 U.S. 217, 229 (2000), the Court indicated that for

government speech analysis to apply, one prerequisite would

be that the speech be “financed by tuition dollars” rather than

through the compelled student activity fee. In Rosenberger v.

Rector & Visitors of University of Virginia, 515 U.S. 819, 833

(1995), the Court’s dicta regarding government speech plainly

referred only to instances “[w]hen the government disburses

public funds.”

In cases where this Court has found that an activity

involves government speech, the speech in question was

unquestionably funded with government expenditures. In Rust

v. Sullivan, 500 U.S. 173 (1991), for example, this Court

upheld regulations that restricted what doctors who worked

for Title X-funded programs could say about abortions while

performing work for those government-funded programs. /d.

at 193; see also Nat'l Endowment for the Arts v. F inley, 524

U.S. 569, 587-88 (1998) (upholding regulations concerning

criteria for federal grant recipients).

The consistent teaching of these cases is that the

government is free to speak its own message when it funds

that message itself. The Sixth Circuit thus was correct in

rejecting petitioners’ argument that the pork checkoff is

immune from First Amendment scrutiny as government

speech, since the program’s funding does not and cannot

come from general tax revenues. U.S. Pet. App. 8a; 7 U.S.C.

§ 4801(b)(2). Indeed, the government must be reimbursed

16

from checkoff funds for any oversight it provides. U.S. Pet.

App. 8a; 7 C.F.R. § 1230.73(c)(4).

The United States makes the incorrect and misleading

assertion that the pork checkoff is merely a type of modest

“user fee,” U.S. Pet. 11, imposed on those who have “chosen”

to be hog farmers, id. 10. That argument is without merit for

two reasons. First, payers of “user fees” are volunteers: they

choose, for example, to visit a national park or to use a

particular service for which they are charged a fee. But, like

the public employees in Abood v. Detroit Board of Education,

431 U.S. 209 (1977), and the lawyers in Keller, the

mandatory assessments of the pork checkoff are imposed on

hog farmers as a condition of earning their livelihood.

Second, payers of “user fees” get something in return for the

fee, such as a service, and the fee generally is germane to a

legitimate non-speech activity. The only thing hog farmers

receive in return for the mandatory pork checkoff is

objectionable speech. In all of the cases cited by the United

States for the novel argument that the pork checkoff

assessments are a form of “user fees,” the “fees” were

actually a reimbursement to the government to cover its

administrative expenses. See United States v. Sperry Corp.,

493 U.S. 52 (1989) (involving a “user fee” reimbursing the

government for administrative expenses incurred in

connection with the Iran-United States Claims Tribunal);

Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450 (1988)

(considering whether school boards could require students

who use bus service to pay for that bus service); Cox v. New

Hampshire, 312 U.S. 569, 570-71 (1941) (upholding local

government’s imposition of a reasonable fee to compensate

for administrative and law-enforcement expenses, noting the

fee was “not a revenue tax, but one to meet the expense

incident to the administration of the act and to the

maintenance of public order in the matter licensed”). The

pork checkoff, by contrast, is not imposed to cover

administrative expenses pertaining to a government function;

17

rather, the money goes into the coffers of private

organizations and pays for their highly objectionable speech.

3. The Government Exercises Only Pro Forma

Oversight.

One of the reasons this Court did not address the issue of

whether checkoff-funded speech is government speech in

United Foods was that, by failing to raise the argument

sooner, the government had “deprived respondent of the

ability to address significant matters that might have been

difficult points for the government,” such as whether the

Secretary’s approval of the advertising was “pro forma.” 533

U.S. at 416-17. Addressing that exact issue, the Third, Fifth,

and Sixth Circuits all found that the respective checkoff

programs at issue lacked sufficient USDA oversight to be

considered government speech. See U.S. Pet. App. 8a; Pelts

& Skins, 2004 U.S. App. LEXIS 6364, at *20; Cochran, 359

F.3d at 274.

To the extent that petitioners challenge the Sixth

Circuit’s decision that the government exercises only “limited

oversight” over the pork checkoff programs, U.S. Pet. App.

9a, they seek factual, rather than legal review. The court of

appeals based its conclusion on the following facts: 1) USDA

has only one staff member to perform all pork checkoff- .

related duties; 2) the government does not draft or propose

any of the advertisements funded by the pork checkoff; 3) the

trademark for “Pork. The Other White Meat” is owned by a

private organization, not the government; and 4) NPB is

comprised of private pork producers, who are nominated by

State pork associations, which are entirely private and not

appointed by the Secretary. Jd. The Sixth Circuit concluded

that “the pork industry’s extensive control over the Pork Act’s

promotional activities prevents their attribution to the

government.” Jd. 8a; Pelts & Skins, 2004 U.S. App. LEXIS

6364, at *20.

18

4. There Is No Conflict Among the Circuits

Regarding the Application of the

Government Speech Doctrine to

Commodity Checkoffs.

The United States’s argument that this Court should grant

certiorari because the courts of appeal “did not rely on any

consistent rationale” misses the point that those courts all

reached the same result: the checkoffs cannot be sustained

under the government speech doctrine. See Chevron U.S.A.,

Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842

(1984) (“[T]his court reviews judgments, not opinions.”).

Moreover, the United States’s reliance on the Third Circuit’s

statement from 1989 that “the issue [is] a close one” and there

are “sound reasons for concluding that the expressive

activities financed by the Beef Promotion Act constitute

‘government speech,’”” U.S. Pet. 16 (citing United States v.

Frame, 885 F.2d 1119, 1131-32 (3d Cir. 1989), cert. denied,

493 U.S. 1094 (1990)), is no longer warranted. On February

24, 2004, the Third Circuit affirmed the conclusion in Frame

that checkoff-funded speech is subject to First Amendment

scrutiny. Cochran, 359 F.3d at 274.

B. The Pork Checkoff Is Unconstitutional Under

_ Any Standard.

The refusal of the court of appeals to apply Central

Hudson to this compelled speech case is not a basis for

granting certiorari. First, the ruling is correct; as the

government itself has recognized, Central Hudson is not the

applicable test in a compelled speech case. See supra at 12.

Second, even if Central Hudson were applicable, the pork

checkoff would be unconstitutional. This Court said as much

in United Foods when, in discussing whether or not the

Central Hudson test was applicable, it stated: “We need not

enter into the controversy, for even viewing commercial

speech as entitled to lesser protection, we find no basis under

either Glickman [v. Wileman Bros.] or our other precedents to

sustain the compelled assessments sought in this case.” 533

19

U.S. at 410. This Court need not grant certiorari to address a

legal issue of negligible effect.

1. Central Hudson Is Inapplicable.

The Sixth Circuit correctly ruled that Central Hudson

does not apply to a case involving compelled speech. As this

Court stated in Wileman Bros., courts should not “rely on

Central Hudson for the purpose of testing the constitutionality

of market order assessments for promotional advertising.”

521 U.S. at 474. The Court further noted: “The Court of

Appeals fails to explain why the Central Hudson test, which

involved a restriction on commercial speech, should govern a

case involving the compelled funding of speech.” Jd. at 474

n.18.

Moreover, the more lenient standard of analysis set forth

in Central Hudson applies only to commercial speech, which

is defined as “expression related solely to the economic -

interests of the speaker and its audience.” 447 U.S. at 561.

The speech at issue here does not fall into this narrow

category. The district court characterized the hog farmers’

objections as “sincere philosophical, political and commercial

disagreements,” likening them to the objecting bar members

in Keller. U.S. Pet. App. 50a (emphasis added). Thus, even if

Central Hudson were applicable to compelled speech

concerning “solely . . . economic interests,” it would

nevertheless be inapposite here.

2. Even If Central Hudson Applied, There

Would Be No Basis to Sustain the Checkoff.

Even if the Central Hudson test does apply, the pork

checkoff cannot pass muster. Central Hudson holds that the

government may regulate commercial speech only if: (1) “the

asserted governmental 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. The three

circuit courts that examined the government’s purported

20

interest in the stand-alone checkoff programs have agreed that

it is not sufficiently substantial to justify the infringement on

producers’ First Amendment rights. See LMA, 335 F.3d at

725-26; Cochran, 359 F.3d at 279; Pelts & Skins, 2004 U.S.

App. LEXIS 6364, at *30 n.21.'° The pork checkoff likewise

is unconstitutional under Central Hudson.

a. The Governmental Interest Is Not

Substantial.

Petitioners are wrong that “the welfare of pork

producers” is a sufficiently important government interest to

justify the compelled assessments. First, as the Third Circuit

noted in Cochran, “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. The same is true of the parallel Pork Act.

Second, in addition to the pork checkoff, the government

also has enacted similar generic promotion programs to

promote products that compete with pork, such as beef.'' That

'° The Third Circuit’s decision in Cochran, which was issued after

petitioners filed their petitions for certiorari, refutes petitioners’ argument

that the Sixth Circuit’s decision in this case is somehow inconsistent with

the Third Circuit’s decision in Frame. Prior to this Court’s decisions in

Wileman Bros, and United Foods, the Third Circuit had held in Frame that

the beef checkoff was constitutional under Central Hudson. 885 F.2d at

1134. But in Cochran, the Third Circuit reconsidered its prior decision in

light of this Court’s intervening pronouncements. It discussed the different

rationales courts have used to analyze commodity promotion programs,

including the approach it used in Frame. The Third Circuit concluded that

the different approaches made little difference since, in the end, United

Foods governs. 359 F.3d at 279-80. The court in Cochran noted: “We

reach this conclusion whether accepting the standard explicitly expressed

in Frame or deciding that in view of the Court’s discussion in United

Foods, that standard is not [sic] longer controlling.” Jd. at 279 n.13.

'' For instance, NPB, in its pork checkoff communications, identifies

beef as being in competition with pork. C.A. App. 2254-86. At the same

time, the Cattlemen’s Beef Board, in its beef checkoff communications,

maintains that beef has more of a potentially beneficial food compound

G

q 4

&

Fs

y

21

the beef and pork checkoffs are working at cross-purposes

undermines any claim that the government has a “substantial

interest” in promoting pork specifically. See Livestock

Marketing Ass’n v. United States Department of Agriculture,

207 F. Supp. 2d 992, 1006 (N.D.S.D. 2002) (‘After all, is the >

‘government message’ therefore 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?”); see also Greater New Orleans Broad. Ass’n vy.

United States, 527 U.S. 173, 187 (1999) (striking under

Central Hudson a federal restriction on advertising related to

casino gambling in part because Congress allowed other

forms of gambling to flourish). By authorizing multiple,

competing checkoffs, Congress is not promoting the welfare

of pork producers; rather, it is promoting the interest of

competing industry groups like private petitioners that receive

funding from commodity checkoffs.

b. The Pork Checkoff Does Not Directly

Advance Any Asserted Governmental

Interest.

Even if the two other interests the United States

identified as served by the Pork Act — namely, “stabilizing the

general economy of the United States,” or “ensuring that the

people of the United States receive adequate nourishment” —

can be considered substantial in some circumstances, the

government does not meet its “burden of showing that the

challenged regulation advances the Government’s interest in a

direct and material way. That burden is not satisfied by mere

speculation or conjecture; rather, a governmental body

seeking to sustain a restriction on commercial speech must

demonstrate that the harms it recites are real and that its

restriction will in fact alleviate them to a material degree.”

than pork and that beef tops pork in per capita consumption. See id. 2287-

2300. .

22

Rubin v. Coors Brewing Co., 514 U.S. 476, 486-87 (1995)

(internal quotation marks omitted).

The record in this case contains no evidence suggesting

that a pork nutrition problem exists in this country or that the

Pork Act will help alleviate it. Nor does the record show that

the Pork Act has a beneficial effect upon the American

economy as a v-hole. Indeed, petitioners cannot even show

that the Pork Act benefits the entire pork industry. Although

the pork checkoff arguably has helped packers and retailers,

petitioners cannot plausibly argue that promotion of specific

multinational retailers and processors through checkoff-

funded “branded advertising” directly advances the interests

of pork producers. USDA statistics show that hog farmers’

share of the retail pork dollar declined from 42.5% to 30.1%

between 1996 and 2001. U.S. Pet. App. 19a. Thus, the true

“free riders” of the pork checkoff are retailers and processors.

What is more, since the Pork Act’s inception, at least 415,000

hog farmers have quit raising hogs. C.A. App. 1194, 1217.

The producers themselves are in the best position to judge

whether the pork checkoff has directly advanced their

interests. They answered that question with a resounding “no”

when 53% of them voted to terminate the entire program.

U.S. Pet. App. 17a.

c. The Pork Checkoff Is Far More

Extensive Than Necessary to Serve Any

Asserted Governmental Interest.

The pork checkoff also burdens First Amendment speech

more than necessary to advance the purported governmental

interest. If the government’s interest in the welfare of the pork

industry were truly substantial, the government could use

funds from general revenues to fund the same projects. See

Pelts & Skins, 2004 U.S. App. LEXIS 6364, at *30 n.21.

Indeed, it has done so in the past. For example, the Small Hog

Operation Payment program provided government payments

to small- and medium-sized producers based on past

production in response to historically low hog prices in 1998

See nary see Cone ~ “x

cs

2 4

LORIE EON INTIS I i a a i

23 ;

and 1999. See 7 C.F.R. § 759.1 (2003). That government-

funded program actually did enhance the welfare of pork

producers. Here, however, the government has chosen to

address these alleged problems by compelling respondents to

fund speech with which they disagree. Accordingly, the Pork

Act fails even the more lenient Central Hudson test.

C. The Injunction Ordered by the District Court

and Affirmed by the Sixth Circuit Is the Only

Feasible Remedy. <

There is no reason for this Court to grant certiorari on the

issue of the scope of the injunction ordered by the courts

below. The injunction is well Supported by the courts’

decisions and is the only practicable remedy in this case. The

district court’s exercise of its traditional authority to grant

equitable relief, and the Sixth Circuit’s finding that the district

court. did not abuse its discretion, present no significant issues

warranting this Court’s review.

The Sixth Circuit held: “Because the Pork Act is nearly

identical in purpose, structure, and implementation to the

Mushroom Act, the Pork Act is unconstitutional under the

analysis set forth in United Foods.” U.S. Pet. App. 10a. The

Sixth Circuit thus held that the entire Pork Act was

unconstitutional. Its decision was not “confined to the

government’s requiring respondents (or their members) to

Share the costs of the generic advertising and similar

promotional activities under the Pork Act,” as the United

States asserts. U.S. Pet. 22. The Sixth Circuit correctly upheld

the injunction’s nationwide application, and explicitly and

correctly ruled that its decision could not be limited solely to

checkoff advertising activities. U.S. Pet. App. 12a-14a.

1. The Injunction Cannot Be Limited to

Respondents.

While the general rule is that an injunction should be “no

more burdensome than necessary to the defendant to provide

complete relief to the plaintiffs,” there are no legal limits on

24

the scope of a federal court’s injunction. Califano v.

Yamasaki, 442 U.S. 682, 702 (1979). This Court in Yamasaki

upheld a nationwide injunction. /d. at 705.

In this case, the injunction could not be limited to

respondents. If the Pork Act is unconstitutional for one, it is

unconstitutional for all. This Court in United Foods ruled the

Mushroom Act unconstitutional based solely on_ the

objections of a single producer. 533 U.S. at 408-09. When a

regulation or law is found to be invalid, courts must enjoin

any further application of that regulation or law. See, e.g.,

Dimension Financial Corp. v. Board of Governors of the Fed.

Res. Sys., 744 F.2d 1402, 1411 (10th Cir. 1984) (enjoining the

Board from enforcing or implementing invalid regulations);

Decker v. O’Donnell, 661 F.2d 598, 618 (7th Cir. 1980)

(rejecting the Department of Labor’s argument that

nationwide injunction was overly broad and should be limited

only to parties -where the program was_ declared

unconstitutional); American Mining Cong. v. U.S. Army

Corps of Engineers, 962 F. Supp. 2, 4-5 (D.D.C. 1997)

(rejecting the government’s contention that an injunction

should be limited to members of plaintiff associations;

enjoining application of invalid rule).

As the district court held, it could not limit its injunction

only to the parties without rewriting the statute, which it

cannot do. See U.S. Pet. App. 52a; Virginia v. American

Booksellers Ass’n, 484 U.S. 383, 397 (1988) (“[W]e will not

rewrite a state law to conform it to constitutional

requirements.”); Blount v. Rizzi, 400 U.S. 410, 419 (1971)

(“[I]t is for Congress, not this Court, to rewrite the statute.”).

The Pork Act does not provide for voluntary assessments or

exclusions. Therefore, if the Pork Act violates respondents’

First Amendment rights, the only appropriate relief is to strike

down the entire Act.

Moreover, a more limited injunction would have been

infeasible. Checkoff payments are remitted primarily through

third parties who buy hogs from farmers. 7 C.F.R. § 1230.71.

25

It would not be possible to limit the injunction to only those

packers who have dealings with respondents, or to their

dealings with respondents only. Cf. Bresgal v. Brock, 843

F.2d 1163, 1170-71 (9th Cir. 1987) (injunction ordering the

Secretary of Labor to enforce the Migrant and Seasonal

Agricultural Worker Protection Act could not be enforced

only against contractors who had dealings with the named

plaintiffs, or only as to their dealings with the named

plaintiffs). '?

2. The Injunction Cannot Be Limited to

Promotional or Advertising Activities.

When legislation does not contain a severability clause, as

the Pork Act does not, a reviewing court “must invalidate the

entire statute if the ‘balance of the legislation is incapable of

functioning independently.’” U.S. Pet. App. 12a-13a (citing

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987)). In

this case, the Sixth Circuit correctly concluded: “The very

basis for holding that the Act violates the First Amendment —

that its assessment of fees to promote pork is the chief goal of

the Act, which does not create a broader regulatory program —

prevents us from preserving other parts of the statute.” U.S.

Pet. App. 13a.

Petitioners have presented no persuasive reason for this

Court to disturb or question that conclusion. The Stated

purpose of the Pork Act is to promote pork. 7 U.S.C.

§ 4801(b)(1). Even the definitions of “research” and

“consumer information” in the Pork Act demonstrate that

“3 Limiting an injunction to the hog farmer members of respondent

CFF and its member organizations would require them to identify

themselves, their associational affiliations, and their political beliefs to

USDA, private petitioners, and packers. An injunction so structured would

have an obvious chilling effect on the exercise of the very First

Amendment rights those individuals are trying to vindicate through this

lawsuit. Cf. CFF v. Glickman, 200 F.3d at 1188-89 (holding farmers’

Positions on the “controversial issue” of a mandatory checkoff were

entitled to privacy protection). ‘

26

those aspects of the program are also intended to further the

promotion of pork. 7 U.S.C. §§ 4802(2), (13).

In any event, the vast majority of checkoff funds continue

to be expended on outright promotion. Of the eighty-one

percent of the funds that were expended on national programs

in 2002 (nineteen percent went to the states for them to spend

as they wish for promotion, consumer information, or

research), seventy-one percent were spent on promotion

activities. National Pork Board, Pork Checkoff Report, Vol.

22 No. 1, at 28 (Winter 2003), available at http://www.

porkboard.org/docs/porkcheckoffQtr12003.pdf. The 2003

Pork Checkoff Report shows that only eight cents of every

checkoff dollar was actually spent on “Science &

Technology,” and makes clear that the purpose of the

“research” and “consumer information” components is to

further promote pork. /d.

Virtually everything funded by the checkoff is speech.

That promotion and consumer information constitute speech

cannot be questioned. And the research component of the

budget, eight percent in 2002, also constitutes speech, since

the purpose of doing the research is to publish the results on

NPB’s website, at www.porkboard.org. See id. at 9. As set

forth above, respondents have ideological objections to that

speech. See supra at 6-8, 20.

The entire motivation for the checkoff was the promotion

of pork. Enjoining the most fundamental portion of the Pork

Act — the promotion portion — while leaving in place the

peripheral aspects would fashion a very different program

than the one Congress created.'* The district court had ample

'3 Petitioners’ assertion that Abood and Keller stand for the proposition

that the appropriate remedy for an individual who objects to funding

political speech to which he objects is to reduce that individual’s

assessment misses the crucial underlying point that in Abood and Keller,

some of the assessments were found to be germane to a greater statutory

scheme or purpose. This Court in United Foods ruled that assessments for

the promotion of a commodity were germane only to themselves, and thus

27

basis for exercising its equitable powers in crafting the

remedy, as did the Sixth Circuit for affirming the district

court. Their decisions raise no questions of exceptional

importance warranting this Court’s review.

II. This Court Should Deny Certiorari in Both the

Present Case and in Veneman vy. LMA, But If It

Grants Certiorari in Either Case, It Should Grant

It in Both.

The issues in this litigation have already been fully

decided by United Foods and by the four recent court of

appeals decisions that address and_ reject petitioners’

arguments. But if there is to be further review by this Court, it

should be done in a comprehensive way so that USDA can no

longer force family farmers to bear the additional costs and

burdens of organizing costly legal challenges on a

_ commodity-by-commodity basis. If this Court determines that

it is appropriate to grant certiorari in LMA or in this case, it

should grant certiorari in both cases and set them for oral

argument together.

In its briefing of United Foods, the United States

identified a number of agricultural checkoff programs which

it described as virtually identical to the mushroom checkoff,

and therefore indicative of the great precedential significance

of that case. Since this Court decided United Foods, USDA

has not applied that precedent to other agricultural checkoff

programs, but has instead launched a scorched earth,

government speech defense for all of them, even those that it

identified as virtually identical to the mushroom checkoff.'4

they were unconstitutional. 533 U.S. at 415-16. Without the critical

finding of some substantial government interest justifying the compelled .

association for expressive purposes in the first place, there is nothing for

the assessments to be germane to, and therefore nothing to justify any

compelled contributions in the first place.

* Indeed, since initially lowering the rate of assessment on mushroom

growers after this Court’s United Foods decision, the mushroom board

28

Hearing these two cases, with their factual variations,

would provide the Court with ample evidence on which to

make a decision on government speech that would apply to

the range of mandatory checkoff programs. There are

potentially several permutations of the government speech

defense. For example, since mid-2001, the pork checkoff has

been administered by NPB, the entity Congress designated to

run it, while the National Beef Board has hired the National

Cattlemen’s Beef Association, a private commodity group not

mentioned in the Beef Act, to act as the general contractor for

the beef checkoff. LMA, 207 F. Supp. 2d at 995. In addition,

the record in this case on the issue of whether the

government’s approval of the speech is “pro forma” is

extensive‘ and includes, among other things, copies of ads

themselves and the corresponding approval documentation.

Based on that record, the district court recognized that review

by the Agriculture Marketing Services results in edits to only

four percent of all ads funded by the pork checkoff. U.S. Pet.

App. 42a.

Similarly, with regard to petitioners’ challenge to the

lower courts’ remedy, hearing both cases would provide the

Court with a basis for rendering a decision that would apply

across the spectrum of mandatory checkoff programs. For

example, the Beef Act has a unique legislative history, on

which the Eighth Circuit based its conclusion that the non-

promotional aspects of the Beef Act are not severable from

the promotional aspects and thus the entire program should be

enjoined. This case, on the other hand, has a complete record

increased the assessment to a rate higher than it was before this Court’s

decision. Agricultural Marketing Services (AMS) News Release, USDA

Approves Mushroom Program Assessment Reduction, No. 176-01 (Aug. 3,

2001), at http://www.ams.usda.gov/news/176-01.htm; USDA Approves

Mushroom Program Assessment Increase, No. 291-01 (Dec. 4, 2001), at

http://www.ams.usda.gov/news/291-01.htm; USDA Approves Mushroom

Program Assessment Increase, No. 281-02 (Nov. 6, 2002), at

http://www.ams.usda.gov/news/28 | -02.htm.

29

of the details of the programs funded by the pork checkoff,

demonstrating why the different portions of the Pork Act are

not severable and why everything funded by the pork

checkoff is objectionable speech. Hearing both cases would

allow the Court to render a ruling that would have broad

applicability to all mandatory checkoff programs.

Hearing two cases from two different agricultural

industries would also provide the Court with the broader

backdrop necessary to finally resolve the legal issues raised

by petitioners’ argument that the case should be governed by

the standard set forth in Central Hudson. For example, the

government advances competing interests to justify the

infringement on producers’ First Amendment rights in the

beef checkoff and the pork checkoff under Central Hudson. If

the Court were to address the level of constitutional inquiry to

be applied to checkoff programs, it should have before it the

different interests the government claims are advanced.

This case contains a complete record of the programs

funded by the pork checkoff and the objections to each of

those programs, showing that the speech is not commercial,

but ideological and political. Respondents’ objections to the

pork checkoff and the programs it funds go to the very core of

their values, engendering the “crisis of conscience” discussed

by this Court in Wileman Bros. 521 U.S. at 472. The record in

this case shows that the speech in this case is not just about

advertising a product, or promoting a particular brand as

opposed to the generic product. The programs and resulting

speech generated by the pork checkoff Support a system of

agriculture that is anathema to those compelled to pay for

them. Farming has never been just about commerce; it is a

way of life. The polarization of views about the future of

agriculture in this country is dramatically illustrated in the

hog industry. Respondents believe that farming involves

stewardship of the land and fostering healthy and vibrant rural

communities.

30

The United States’s request to hold this case — with its

clear record on the ideological and political nature of the

speech and objections -— is another example of the

-government’s litigation iactics of raising and then dropping

arguments in order to delay the day when the last checkoff

dollar is collected.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Thomas C. Goldstein Susan E. Stokes

Amy Howe Counsel of Record

GOLDSTEIN & Howe, P.C. David R. Moeller

4607 Asbury Pl., NW Karen R. Krub

Washington, DC 20016 FARMERS’ LEGAL ACTION

GROUP, INC.

46 E. 4th Street, Suite 1301

St. Paul, MN 55101

(651) 223-5400

April 19, 2004"°

'S Counsel for respondents were principally assisted by Farmers’ Legal

Action Group Staff Attorney Jess Anna Speier, and the following students

in the Stanford Law School Supreme Court Litigation Clinic, supervised

by Thomas C. Goldstein and Pamela S. Karlan: Michael P. Abate, Eric J.

Feigin, and Daniel S. Goldman. Clinic members William B. Adams,

David M. Cooper, Nicola J. Mrazek, and Jennifer J. Thomas also

contributed.