Farm Product "Check-off" Programs: A Constitutional Analysis

Congressional research reportJun 9, 2006

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Farm Product “Check-off” Programs:

A Constitutional Analysis

Updated June 9, 2006

Stephen R. Viña

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Farm Product “Check-off” Programs:

A Constitutional Analysis

Summary

For decades, Congress has enacted laws authorizing generic promotion

programs for a number of farm products to increase overall demand and consumption

of the agricultural product. These generic promotion programs, commonly known

as “check-off” programs, are funded through the payment of mandatory assessments

imposed on the amount of product that a covered party sells, produces, or imports.

Some producers have opposed the use of generic advertisements and have brought

First Amendment challenges in court. Generally, these parties claim that they should

not be required to pay for advertisements (i.e., speech ) with which they disagree.

The Supreme Court has ruled on the constitutionality of check-off programs

three times in the last eight years, the most recent of which occurred in May 2005.

The Court’s first two attempts at addressing First Amendment challenges to checkoff programs resulted in contrasting outcomes and some confusion for lower courts.

In Johanns v. Livestock Marketing Association, the Supreme Court’s third and most

recent decision concerning a check-off program (beef), the Court ruled that the

generic advertising under the program was the government’s own speech, and was

therefore not susceptible to the First Amendment challenge before it. The Supreme

Court’s decision was based on grounds that had not been previously addressed by the

Court in the earlier check-off cases and may have far-reaching effects. For example,

three circuit court rulings that invalidated other check-off programs have already

been vacated by the Court for reconsideration in light of Johanns.

This report begins with a brief introduction to check-off programs and then

describes many of the First Amendment principles that have been discussed in checkoff cases. Next is an analysis of the first two challenges that reached the Supreme

Court, as well as a brief discussion of subsequent lower court decisions. This report

concludes with a discussion of Johanns v. Livestock Marketing Association and its

possible implications for check-off programs. This report will be updated as

warranted.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Check-off Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Commercial Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Compelled Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Government Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Check-off Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Early Supreme Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

California Tree Fruits Check-off Program . . . . . . . . . . . . . . . . . . . . . . . 5

Mushroom Check-off Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Federal Circuit Cases after United Foods . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Recent Supreme Court Decision: Johanns v. Livestock

Marketing Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Possible Implications of Johanns v. Livestock Marketing Association . . . . . . . . 11

Farm Product “Check-off” Programs:

A Constitutional Analysis

Introduction

A number of farm products are promoted through the use of congressionally

authorized generic promotion programs.1 To fund these programs, the authorizing

statutes (and orders) require that an assessment be collected based on the amount of

product that a covered party sells, produces, or imports. Some producers have

opposed the use of, or message in, generic advertisements and have brought First

Amendment challenges in court, three of which the Supreme Court has decided.

The Supreme Court’s first two attempts at addressing First Amendment

challenges to check-off programs — California fruits and mushrooms, respectively

— resulted in contrasting opinions and some confusion for lower courts.

Subsequent circuit court decisions for the beef, pork, and dairy check-off programs,

for example, have all seemed to struggle with determining the applicable level of

scrutiny to apply to the programs. Nonetheless, in each case the appellate courts

rejected the government’s argument that the check-off programs were “government

speech” immune from First Amendment scrutiny and found the programs to

unconstitutionally compel speech (or compel the subsidy for the support of some type

of speech).

In May 2005, the Supreme Court issued its third opinion in eight years regarding

the constitutionality of a check-off program (beef). In Johanns v. Livestock

Marketing Association,2 the Supreme Court upheld the check-off program on

“government speech” grounds — a legal theory not addressed by the Supreme Court

in the earlier check-off cases. This ruling is likely to have far-reaching effects for

check-off programs. For example, it has already been used to vacate the circuit court

decisions mentioned above and will undoubtedly be used to defend other check-off

programs from First Amendment challenges. The decision may also serve to inform

and encourage future legislation creating or amending such programs.

This report begins with a brief introduction on check-off programs and then

describes the applicable First Amendment principles argued in many of the check-off

cases. Next is an analysis of the first two challenges that reached the Supreme Court,

as well as a brief discussion of subsequent appellate court decisions. This report

For general information on check-off programs, see CRS Report 95-353 ENR, Federal

Farm Promotion (“Check-Off”) Programs, by (name redacted).

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005); together with Nebraska

Cattlemen, Inc., v. Livestock Mktg. Ass’n (No. 03-1165).

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concludes with a discussion of Johanns v. Livestock Marketing Association and its

possible implications for check-off programs.

Check-off Programs

Congress has provided for the generic promotion of farm products since the

1930s.3 These programs — commonly known as “check-off” programs — are

requested, administered, and funded by the industries themselves, and, in part,

operate under promotion and research orders or agreements issued by the Secretary

of Agriculture. General oversight of these programs is provided by the U.S.

Department of Agriculture’s (USDA) Agricultural Marketing Service; however, there

is still some debate as to actually how much control and responsibility the USDA has

over the check-off programs. Farm product check-off programs are designed to

strengthen the position of each respective commodity in the marketplace by

increasing domestic demand and consumption and by expanding foreign markets.

Typically, the statutory language authorizing a check-off program calls on the

Secretary of Agriculture to appoint a board (e.g., National Dairy Promotion and

Research Board), council (e.g., Mushroom Council) or other type of representative

body, based on nominations made by the producers, to pursue the statute’s goals. To

fund the programs, the authorizing statutes and orders call on the board or council to

collect an assessment based on the amount of product that a covered party sells,

produces, or imports. The collected funds may finance a variety of programs,

including advertising, consumer education, nutrition, production, marketing research,

and new product and foreign market development. In some cases, large percentages

of the collected funds are used to implement generic promotions and advertisements.4

The Secretary of Agriculture must approve each promotional project or plan before

it can be implemented.5

See Agricultural Marketing Agreement Act of 1937, 50 Stat. 246 (codified as amended at

7 U.S.C. §§ 601 et seq.).

See, e.g., United States v. United Foods, Inc., 533 U.S. 405, 408 (2001) (noting that most

monies raised under the mushroom check-off program were spent for generic advertising to

promote mushroom sales); see also Livestock Marketing Ass’n v. Dep’t of Agriculture, 335

F.3d 711, 723 (8th Cir. 2003) vacated sub nom. Johanns v. Livestock Mktg. Ass’n, 544 U.S.

550 (2005) (noting that at least 50% of the assessments collected under the beef check-off

program are used for generic beef advertisements).

See, e.g., 7 C.F.R. §1209.40 (mushrooms); §1230.60 (pork); §1260.169 (beef).

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The First Amendment

The First Amendment to the Constitution provides that “Congress shall make

no law ... abridging the freedom of speech, or of the press....”6 In general, the First

Amendment prohibits the government from regulating private speech based on its

content and may prevent the government from compelling individuals to express

certain views7 or to pay subsidies for speech to which they object.8 However, the

right to speak or refrain from speaking is not absolute. Courts, for example, look at

the context and purpose of the speech and allow greater government regulation for

some types of speech than others. In considering challenges to check-off programs,

courts have generally looked to the “commercial speech,” “compelled speech,” and

“government speech” doctrines that have been developed under First Amendment

jurisprudence.

Commercial Speech. Commercial speech is speech that “proposes a

commercial transaction”9 or relates “solely to the economic interests of the speaker

and its audience.”10 The government may regulate commercial speech, even truthful

expressions, more than it may regulate fully protected speech, and it also may ban

false or misleading commercial speech, or advertisements that promote an illegal

product.

Courts typically use a four-prong test that was articulated by the Supreme Court

in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York

to determine whether a governmental regulation of commercial speech is

constitutional.11 The Central Hudson test asks (1) whether the commercial speech

at issue is protected by the First Amendment (that is, whether it concerns a lawful

activity and is not misleading) and (2) whether the asserted governmental interest in

restricting it is substantial. “If both inquiries yield positive answers,” then to be

constitutional the restriction must (3) “directly advance the governmental interest

asserted,” and (4) be “not more extensive than is necessary to serve that interest.”12

Determining whether the speech in question is “commercial speech” is important

because it allows a court to apply the more flexible intermediate scrutiny test of

For more information on the First Amendment, see CRS Report 95-815, Freedom of

Speech and Press: Exceptions to the First Amendment, by (name redacted).

See Wooley v. Maynard, 430 U.S. 705, 714 (1977).

See Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977).

Bd. of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 482 (1989).

Central Hudson Gas & Electric Corp. v. Public Service Comm’n of NewYork, 447 U.S.

557, 561 (1980).

447 U.S. 557 (1980).

In Central Hudson, the Supreme Court was asked to determine the constitutionality of a

state regulation that banned all promotional advertising as a way to, in part, conserve energy.

In holding that the restriction was not constitutional, the Court articulated the test described

in the text, and concluded that the regulation was more extensive than necessary to serve the

state interest (a violation of prong four).

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Central Hudson. As discussed below, courts have often struggled with placing

check-off programs solely within the parameters of “commercial speech.”

Compelled Speech. The First Amendment has been interpreted to prevent

the government from compelling individuals to express certain views or to pay

subsidies for certain speech to which they object. Agricultural check-off cases have

traditionally been analyzed within this category or some modification of it.

Initially, courts looked to the Supreme Court cases of Abood v. Detroit Board

of Education13 and Keller v. State Bar of California14 when analyzing check-off

programs under the principles of compelled speech or subsidies. In Abood, nonunion employees objected to paying a “service fee” equal to union dues because the

fees subsidized economic, political, professional, scientific, and religious activities

not related to the union’s collective bargaining agreement. The Supreme Court held

that the union could constitutionally finance ideological activities that were not

germane to the union’s collective bargaining but only with funds provided by nonobjecting employees.15 Since collective bargaining was the authorized purpose of the

union, and the union’s political activities were not germane to that purpose according

to the Court, employees who disagreed with the political activities could not be

compelled to support them. Similarly, in Keller, the Supreme Court held that the

State Bar of California could constitutionally fund activities germane to its goals of

regulating the legal profession out of the mandatory dues of all members, but could

not use compulsory dues for activities of an ideological nature that fell outside of

activities germane to the Bar’s goals.16

From these two cases, courts have fashioned a “germaneness” test for

“compelled speech” or more particularly, “compelled subsidy” cases.17 Under this

test, courts are called on to “draw a line” between those activities that are germane

to a broader and legitimate government purpose and those that are not — a test both

the Abood and Keller courts acknowledged would be difficult to apply.

Government Speech. Generally, courts have “permitted the government to

regulate the content of what is or is not expressed when the government is the

431 U.S. 209 (1977).

496 U.S. 1 (1990).

Abood, 431 U.S. at 235-236.

Keller, 496 U.S. at 13-14. Thus, the members had no valid constitutional objection to

their dues being spent for activities connected with disciplining members of the bar or

proposing ethical codes for the profession because such activities were germane to the bar’s

goals. However, compulsory dues could not be expended to endorse or advance a gun

control or a nuclear weapons freeze because they were activities not germane to the goals

set out by the California Bar.

Justice Stevens suggested in his concurring opinion in United States v. United Foods, 533

U.S. 405, 417-418 (2001), that cases such as Keller and Abood — involving compelled

payment of money — may be viewed as the “compelled subsidy” subset of the “compelled

speech” cases.

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speaker or when the government enlists private entities to convey its own message.”18

So long as the government bases its actions on legitimate goals, the government may

speak despite citizen disagreement with the content of the message. Indeed, the

government, with some exceptions pertaining to religion, may deliver a contentoriented message. “When the government speaks, for instance to promote its own

policies or to advance a particular idea, it is, in the end, accountable to the electorate

and the political process for its advocacy. If the citizenry objects, newly elected

officials later could espouse some different or contrary position.” 19

In analyzing whether the “government speech” doctrine applies, courts typically

consider the government’s responsibility for, and control over, the speech in

question. The more control the government exerts, the more likely it will be

determined to be the speaker. Although there seems to be some debate as to the

scope of the “government speech” doctrine,20 its effect is still broad, in that it can

provide immunity to First Amendment scrutiny.

Check-off Case Law

Over the years, a number of parties assessed under check-off programs have

claimed that the mandatory assessments are unconstitutional restraints on their right

to free speech. Generally, opponents argue that they should not be required to pay

for advertisements with which they disagree. For example, in a challenge against the

dairy check-off program, the claimants were traditional dairy farmers that did not use

the genetically engineered and controversial “recombinant Bovine Growth

Hormone.” Consequently, they objected to subsidizing generic advertisements that

they felt conveyed a message that milk is a fungible product that bears no distinction

based on where and how it is produced.21 These types of challenges were most often

successful under a “compelled speech” analysis, even though the cases varied in their

analysis of “germaneness” and their attention to whether a “government speech”

approach might be more appropriate. The Supreme Court’s recent expansive view

of what can constitute “government speech,” however, has put the entire line of

earlier case law in question.

Early Supreme Court Cases

California Tree Fruits Check-off Program. In Glickman v. Wileman

Brothers and Elliot, Inc., several producers of California tree fruits (peaches,

nectarines, and plums) challenged the constitutionality of a USDA marketing order

that required assessments be imposed on producers to fund costs associated with the

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995).

Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000).

See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting)

(noting that the government speech doctrine is relatively new and correspondingly

imprecise).

Cochran v. Veneman, 359 F.3d 263 (3d Cir. 2004), vacated sub nom Johanns v. Cochran,

544 U.S. 1058 (2005).

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orders, including generic advertising.22 The marketing order at issue was derived

from the Agricultural Marketing Agreement Act of 1937 (7 U.S.C. §§ 601 et seq.)

and provides regulatory guidelines and restraints on its participants, including quality

and quantity controls, uniform price measures, and grade and size standards.

Ultimately, the Supreme Court determined that the marketing orders were a species

of economic regulation and upheld the constitutionality of the assessments imposed

on the fruit growers to cover the costs of generic advertising.

The Supreme Court began its analysis by describing the regulatory guidelines

and restraints that the marketing order posed on the industry as a whole and

concluded that they fostered a “policy of collective, rather than competitive

marketing.”23 The Court then distinguished the regulatory scheme at issue from laws

that had previously been found suspect under the First Amendment by determining

that the orders (1) posed no restraint on the freedom of any producer to communicate

any message to any audience, (2) did not compel any person to engage in any actual

or symbolic speech, and (3) did not compel the producers to endorse or to finance any

political or ideological views.24 Next, the Court determined that the standards

established in “compelled speech” case law favored a finding of constitutionality

because (1) the generic advertising was unquestionably germane to the purposes of

the marketing orders, and (2) the assessments were not used to fund political or

ideological activities.25 The Glickman Court further dismissed the argument that the

compelled assessments required the level of scrutiny usually applied in “commercial

speech” cases because this level was inconsistent with the very nature and purpose

of the collective action of marketing orders at issue.26

Based on these findings and the general cooperative nature of the regulatory

scheme, the Court found that the assessments imposed did not raise First Amendment

concerns. The Court determined that the respondent’s criticisms of generic

advertising “provid[ed] no basis for concluding that factually accurate advertising

constitutes an abridgment of anybody’s right to speak freely.”27 The Supreme Court

concluded by stating that the marketing orders in question were a “species of

521 U.S. 457 (1997).

Glickman, 521 U.S. at 461.

Id. at 469-470.

Id. at 471-472 (“Neither the fact that respondents may prefer to foster that message

independently in order to promote and distinguish their own products, nor the fact that they

think more or less money should be spent fostering it, makes this case comparable to those

in which an objection rested on political or ideological disagreement with the content of the

message.”).

Id. at 474-475 (finding it erroneous for the lower court to rely on Central Hudson for the

purpose of testing the constitutionality of market order assessments for promotional

advertising).

Id. at 474.

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economic regulation that should enjoy the same strong presumption of validity that

we accord to other policy judgements made by Congress.”28

Mushroom Check-off Program. In 2001, the Supreme Court revisited the

issue of compelled marketing assessments for generic advertisements in United

States v. United Foods, Inc.29 In United Foods, the Court was faced with determining

whether the mandatory assessments for the mushroom check-off program established

pursuant to the Mushroom Promotion, Research, and Consumer Information Act of

1990 (7 U.S.C. §§ 6101 et seq.) violated the First Amendment. The Supreme Court

concluded that the program authorized by the Mushroom Promotion Act differed

fundamentally from the marketing orders at issue under Glickman and found the

program unconstitutional.

The Court started its analysis by declaring that it was not going to view the case

in light of “commercial speech” jurisprudence because the government never raised

the issue; however, the Court determined that First Amendment issues arose “because

of the requirement that producers subsidize speech with which they disagree.”30

Accordingly, the Court began its examination by viewing the entire regulatory

program at issue and comparing it with the scheme under scrutiny in Glickman. The

Court determined that the features of the marketing scheme found important in

Glickman were not present in the case before it. For example, the Court concluded

that “[i]n Glickman, the mandated assessments for speech were ancillary to a more

comprehensive program restricting market autonomy” and that under the mushroom

check-off “the advertising itself, far from being ancillary, is the principal object of

the regulatory scheme.”31 By underscoring these differences, the Court moved away

from the precedent established by Glickman.

The Court next turned to the “compelled speech” arguments before it and found

that the “mandated support is contrary to the First Amendment principles set forth

in cases involving expression by groups which include persons who object to the

speech, but who, nevertheless, must remain members of the group by law or

necessity.”32 In so holding, the United Foods Court found that the compelled speech

in the mushroom check-off program was not germane to a purpose related to an

association independent from the speech itself. The only purpose the compelled

contributions served, according to the Court, was the advertising scheme for the

mushroom check-off program, which was not like the broader cooperative marketing

Id. at 477.

533 U.S. 405 (2001).

Id. at 411.

Id. at 411-412. The Court further noted that “[b]eyond the collection and disbursement of

advertising funds there are no marketing orders that regulate how mushrooms may be

produced and sold, no exemption from the antitrust laws, and nothing preventing individual

producers from making their own marketing decisions.”

Id. at 413.

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structure relied upon by a majority of the Court in Glickman.33 Accordingly, the

Court struck down the mandatory assessments used to fund generic advertisements

imposed by the mushroom check-off program. The government also attempted to

assert “government speech” arguments; however, the Court refused to hear such

substantive claims because they had not been raised at the lower levels.34

Since this decision, the Mushroom Council, which administers the check-off

program under USDA supervision, voted to reduce the mandatory assessments and

divert their revenue to non-promotional activities such as research into mushrooms’

health and nutritional attributes.

Federal Circuit Cases after United Foods

Since United Foods, there have been challenges to the constitutionality of the

beef, dairy, and pork check-off programs. These challenges were all successful at the

appellate level.35 In each case, the appellate courts rejected the government’s

argument that the check-off programs were “government speech” immune from First

Amendment scrutiny. Generally, the courts found that the government exerted

insufficient control and responsibility over the check-off programs to support the

applicability of the “government speech” doctrine. After declaring that the check-off

cases presented private speech, the courts typically compared the check-off program

at issue with those presented in Glickman and United Foods. All three circuit courts

found the check-off programs in question more akin to the teachings and holdings of

United Foods and thus unconstitutional. In so holding, each court appeared to

struggle with placing the check-off programs within the “commercial speech —

compelled speech” rubric.

All three appellate decisions were appealed to the Supreme Court. The Court,

however, heard arguments only in Livestock Marketing Ass’n v. Dep’t of Agriculture,

where the Eighth Circuit had ruled that the beef check-off program, authorized under

the Beef Promotion and Research Act of 1985 (7 U.S.C. §§ 2901 et seq.) and its

implementing regulations was unconstitutional.36 The Court decided to hold the

petitions for writ of certiorari for the pork and dairy check-off cases until the beef

case was decided. The Court heard oral arguments in December 2004, and released

its opinion on May 23, 2005, upholding the constitutionality of the beef check-off

Id. at 415.

Id. at 416.

Livestock Mktg. Ass’n v. U.S. Dep’t of Agric., 335 F.3d 711 (8th Cir. 2003), vacated sub

nom. Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) (beef); Cochran v. Veneman,

359 F.3d 263 (3d Cir. 2004), vacated sub nom. Johanns v. Cochran, 544 U.S. 1058 (2005)

(dairy); Mich. Pork Producers Ass’n v. Veneman, 348 F.3d 157 (6th Cir. 2003), vacated sub

nom. Mich. Pork Producers Ass’n, Inc. v. Campaign for Family Farms, 544 U.S. 1058

(2005) (pork).

335 F.3d 711 (8th Cir. 2003), vacated sub nom. Johanns v. Livestock Mktg. Ass’n, 544

U.S. 550 (2005). Under the beef check-off program, producers are charged a $1-per-head

assessment on all sales or importation of cattle, which is used to fund beef-related projects,

including promotional campaigns, designed by a beef industry Operation Committee and

approved by the Secretary.

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program. The Supreme Court vacated all three appellate court decisions and

remanded each case for further consideration in light of the ruling.37

Recent Supreme Court Decision: Johanns v. Livestock

Marketing Association

In Johanns v. Livestock Marketing Association, the Supreme Court, in a 6-3

opinion, ruled that the beef check-off funds the government’s own speech, and it is

therefore not susceptible to a First Amendment compelled-subsidy challenge.38 The

Court vacated the judgment by the Eighth Circuit and remanded the case to the

appellate court for further proceedings consistent with its decision.39

The Court began its analysis by declaring that it has upheld First Amendment

challenges in cases involving “compelled speech” and “compelled subsidy,” but had

never considered the First Amendment consequences of “government-compelled

subsidy of the government’s own speech.”40 In all the cases invalidating

requirements to subsidize speech, the Court stated, “the speech was, or was presumed

to be, that of an entity other than the government itself.”41 The Court added (quoting

an earlier Supreme Court case), that “‘[t]he government, as a general rule, may

support valid programs and policies by taxes or other exactions binding on protesting

parties.’”42 After recognizing these principles, the Court observed that it has

generally assumed, but not squarely held, that “compelled funding of government

speech does not alone raise First Amendment concerns.”43

The Court next rejected respondent’s argument that the beef check-off program

was not “government speech,” and instead, found the promotional campaigns to be

“effectively controlled by the Federal Government itself” and “from beginning to end

the message established by the Federal Government.”44 The Court seemed to come

to these conclusions primarily because: (1) Congress and the Secretary set out the

The Court has also vacated a Fifth Circuit decision that invalidated a similar state generic

advertising program for alligator products. See Pelts & Skins v. Landreneau, 365 F.3d 423

(5th Cir. 2004), vacated by Landreneau v. Pelts & Skins, 544 U.S. 1058 (2005).

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005); together with Nebraska

Cattlemen, Inc. v. Livestock Mktg. Ass’n (No. 03-1165). USDA Secretary Mike Johanns

replaced Ann Veneman as the appellant in this case when he became Secretary of the

USDA.

The Court noted that the claimants would now have the opportunity to proceed on their

other claims (though they were not named).

Johanns, 544 U.S. at 557.

Id. at 559 (citing among others, Keller, 496 U.S. at 15; Abood, 431 U.S. at 212; and

United Foods, 533 U.S. at 416).

Id. (citing Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000)).

Id.

Id. at 560. (“The Operating Committee’s only relevant involvement is ancillary — it

designs the promotional campaigns, which the Secretary supervises and approves. . . .”) Id.

at 560 n.4.

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overarching message of the beef check-off program; (2) all proposed promotional

messages are reviewed for substance (and possibly rejected or rewritten) by USDA

officials; and (3) officials of the USDA attend and participate in the open meetings

at which proposals are developed.45 Noting the overall degree of governmental

control over the check-off messages, the Court stated that “the government is not

precluded from relying on the government-speech doctrine merely because it solicits

assistance from nongovernmental sources in developing specific messages.”46

The Court also dismissed the respondent’s argument that the beef check-off

program needed to be funded by general revenues, rather than targeted assessments,

to qualify as “government speech.” In so concluding, the Court pointed out that the

respondents have no right under the First Amendment not to fund government

speech, irrespective of where the money comes from (i.e., broad-based taxes or

targeted assessments).47 In addition, the Court concluded that the beef check-off

program provides political safeguards that are “more than adequate” to ensure that

the message is kept apart from private interests.48 Finally, the Court rejected

respondent’s argument that they were unconstitutionally forced to endorse a message

with which they disagreed because the promotions used the tag-line “America’s Beef

Producers.” The Court stated that such an argument involved compelled speech,

rather than compelled subsidy.49 The Court suggested in dictum, nonetheless, that

a compelled speech cause of action might lie if a party could show that an

objectionable beef advertisement was attributable to it. That is, even if a statute is

constitutional on its face, a party may show that the government has applied it in an

unconstitutional manner.

Justices Souter, Stevens, and Kennedy dissented from the majority opinion. The

dissent argues that the generic beef advertisements should not qualify for treatment

as speech by the government mainly because the statute does not require the

government to indicate that it is the sponsor of the message.50 If the government

wishes to rely on the “government speech” doctrine to compel specific groups to fund

speech with targeted taxes, the dissent states, “it must make itself politically

accountable by indicating that the content actually is a government message. . . .”51

Because the “government speech” doctrine is not applicable, the dissent noted, the

case should have been decided in line with United Foods.

Id. at 561.

Id. at 562.

Id. at 562 and 564 n.7.

Id. at 563. In so concluding, the Court noted that the Secretary of Agriculture is a

politically accountable official who retains absolute veto power over the advertisements and

that Congress retains oversight authority and the ability to reform the program at any time.

Id.

Id. at 564-65 and n.8 (noting that under a compelled-subsidy analysis, personal autonomy

is violated when a person is forced to fund someone else’s private speech that is

unconnected to any legitimate government purpose).

Id. at 570.

Id. at 571.

CRS-11

Possible Implications of Johanns v. Livestock

Marketing Association

The Supreme Court’s decision to uphold the beef check-off program on the

“government speech” doctrine is likely to have far-reaching implications for checkoff programs. Johanns, in general, appears to have fortified the constitutionality of

check-off programs and has likely enhanced the ability of Congress to provide similar

promotional support for more agricultural products. Accordingly, this ruling will

undoubtedly be used to defend other check-off programs from First Amendment

challenges, to reevaluate those already decided, and to inform future legislation

creating or amending check-off programs.

This opinion will probably clear up much of the confusion that the Glickman —

United Foods dichotomy established. By classifying the beef check-off program as

a type of “government speech,” the Court has now made it possible for lower courts

to avoid (1) placing a check-off program within or (2) applying a test from, the

“commercial speech — compelled speech” line of cases — a task many lower courts

struggled with. On the other hand, attorneys for the respondent claim that with five

different opinions from the Court (i.e., majority, three concurrences, dissent), “there

are as many questions left open as there were answers.”52 Moreover, the extent to

which United Foods is, as the dissent points out, a “dead letter” is unclear, since the

ruling did not expressly overrule it.53 These observations notwithstanding, the

decision establishes a precedent by which check-off programs may be immune from

First Amendment scrutiny.

The Johanns ruling put into question many of the earlier check-off appellate

court decisions.54 Indeed, the Supreme Court has already vacated the appellate court

decisions that invalidated the federal dairy and pork check-off programs and has

remanded each case, including the beef check-off case, for reconsideration in light

of the decision. If it can be shown that these cases are analogous to the beef checkoff program, it appears that a court would now likely find these check-off programs

constitutional “government speech.” This finding seems probable, since the

programs are authorized and administered much in the same fashion and were all

declared almost identical to the mushroom check-off program in United Foods.

Rod Smith, Feedstuffs, What they said about the ruling, Vol. 77, No. 22, at 5 (May 30,

2005) (citing Prof. Lawrence Tribe who argued the case before the Supreme Court for

respondents). Professor Tribe pointed out that Justice Breyer and to a certain extent Justice

Ginsburg, according to their concurring opinions, were more inclined to view the

assessments as a form of “economic regulation” rather than “government speech.”

Johanns, 544 U.S. 550, 571 (Souter, J., dissenting). Both the majority and the dissent

recognized that the beef check-off program was virtually identical to the mushroom checkoff program. The majority, however, seemed to sidestep the holding from United Foods by

deciding the case on “government speech” grounds.

The exact procedure that may be used to reevaluate past decisions will depend in large

part on the relief granted or order issued by the court and the overall status of the case.

Parties, for example, might ask a court to relieve them from a final judgement under Rule

60 of the Federal Rules of Civil Procedure, which allows such a motion to be made for “any

reason justifying relief from the operation of the judgment.”

CRS-12

Opponents, accordingly, may attempt to reformulate their arguments outside the

beef check-off holding. For example, some may attempt to use an “as-applied”

challenge, which was suggested by the Court (without expressing a view on the issue)

as possibly being available. In the Ninth Circuit case Charter v. U.S. Dep’t of

Agriculture, the court vacated and remanded a district court decision that had found

the beef check-off program to be government speech because of evidence that the

individual appellants could be associated with speech to which they objected.55

Others might pursue recourse under completely different legal theories. Opponents

of the pork check-off program, for instance, are reportedly pursuing a “freedom of

association” claim that was not addressed by the Supreme Court in the beef check-off

decision.56 The USDA has stated that it is studying the beef check-off opinion to

determine its impact on other First Amendment challenges to check-off programs.57

Some have claimed that the decision might spur Congress into reconsidering

the underlying authority and purposes of the check-off programs to accommodate

some of the concerns raised by the parties or noted by the courts.58 Congress, for

instance, might consider exempting certain categories of producers who disagree with

generic advertising from paying mandatory assessments under a commodity

promotion law similar to the exemption that Congress established in the 2002 Farm

Bill for persons that produce and market solely 100% organic products.59 Congress

might also seek to further define or expand current provisions in commodity

promotion laws that already require councils and projects to “take into account

similarities and differences” between certain products and producers.60

Congress may also wish to reexamine its position on requiring the

advertisements to show that they are, in fact, speech by the Government, since this

was a major criticism in the dissent and all circuit courts found insufficient

governmental control. A clear indication of who is the speaker may be important, as

mentioned by Justice Ginsburg in her concurring opinion and some experts, to

reconcile the message in check-off programs with other speech that is overtly

412 F.3d 1017 (9th Cir. 2005) (concluding that the lower court must determine whether

speech was attributed to appellants and, if so, whether such attribution can and does support

a claim that the Act is unconstitutional as applied).

See Agriculture Online, Supreme Court sends challenge to Pork Check-Off back to lower

court (June 2, 2005) available at [http://www.agriculture.com/ag/story.jhtml?storyid=/

templatedata/ag/story/data/agNews_050602crPORKCHECKOFF.xml&catref=ag1001] last

viewed on June 2, 2005.

Press Release, U.S. Department of Agriculture, U.S. Supreme Court Rules that Beef

Checkoff Program is Constitutional, No. 0179.05 (May 23, 2005).

Roger Bernard, Supreme Court: Beef Checkoff. It’s Constitutional, AgWeb.com, (May 23,

2005) available at [http://www.agweb.com/get_article.asp?pageid=117980&newscat=GN]

last viewed on June 13, 2005.

See Farm Security and Rural Investment Act of 2002, P.L. 107-171, §10607 (codified at

7 U.S.C. §7401).

See, e.g., 7 U.S.C. §2904(4)(B) (beef). The provision further requires that the Beef Board

“ensure that segments of the beef industry that enjoy a unique consumer identity receive

equitable and fair treatment under this chapter.”

CRS-13

sponsored by the government, particularly the nutritional and dietary guidelines (e.g.,

“Food Pyramid”).61 The most recent federal Dietary Guidelines, for example,

encourage greater consumption of fruits, vegetables, whole grains, and low-fat dairy,

within a balanced, lower-calorie intake diet, while check-off programs generally

encourage more consumption of both low-fat and high-fat beef, pork, and dairy

products.62 These apparent inconsistencies, it has been argued, might undermine one

or both federal government messages and could lead to consumer confusion.63

Some also speculate, given the Court’s acceptance of the “government speech”

argument, that the ruling will prompt the USDA to exert greater effort in supervising

check-offs and addressing the concerns of some of the opposing parties.64 With

respect to programs that are still operating, many may continue operating as usual.

Others that have modified their practices, such as the mushroom check-off program,

may look to return to the status quo, pre-United Foods, and impose mandatory

assessments for generic promotion campaigns. Overall, the ruling is expected to call

more attention to the operation of check-off programs.

Johanns, 544 U.S. 550, 570 (Ginsburg, J., concurring). See also Parke Wilde, Federal

Communication about Obesity in the Dietary Guidelines and Checkoff Programs, Tufts

Nutrition, Discussion Paper No. 27, (May 2005) available at [http://nutrition.tufts.edu/

pdf/publications/fpan/wp27-federal_communication.pdf] last viewed on June 8, 2006

[hereinafter Wilde, Federal Communication about Obesity in the Dietary Guidelines and

Checkoff Programs].

Wilde, Federal Communication about Obesity in the Dietary Guidelines and Checkoff

Programs, at 34.

Id. at 27-35.

Bernard, supra note 58.

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