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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1548%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 1058

## Text

CR CSR OE —

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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). .

‘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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1548%3A2. Public record. Not legal advice.