Volume 5, Number 9 - May 26, 2005
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Beef checkoff upheld
In 1779, Thomas Jefferson wrote that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical."
On Monday, the U.S. Supreme Court upheld the mandatory $1 per head fee imposed on the cattle industry, calling it valid government speech on a 6-3 vote. The nation's highest court rejected arguments by members of the beef industry that the program violates constitutionally protected speech rights.
The funds are used for the popular "Beef. It's What's for Dinner'' promotional campaign.
Justice Souter was joined by Stevens and Kennedy in the dissenting opinion, which noted that some ranchers object to the tax because they disagree with the advertisements' content, which they see as a generic message that "beef is good."
Souter noted, "This message, the ranchers say, ignores the fact that not all beef is the same; the ads fail to distinguish, for example, the American ranchers' grain-fed beef from the grass-fed beef predominant in the imports, which the Americans consider inferior."
The case will now return to lower courts where more arguments against the program will be heard.
The case before the high court held that because the beef checkoff funds are used for the government's own speech, it is not susceptible to a First Amendment compelled-subsidy challenge.
The majority opinion was penned by Justice Scalia. He noted: "For the third time in eight years, we consider whether a federal program that finances generic advertising to promote an agricultural product violates the First Amendment. In these cases, unlike the previous two, the dispositive question is whether the generic advertising at issue is the government's own speech and therefore is exempt from First Amendment scrutiny."
The opinion noted that federal law defined the structure of the program, with the Beef Promotion and Research Act of 1985 instituting a federal policy of promoting the marketing and consumption of beef and beef products, using funds raised by an assessment on cattle sales and importation. The program's structure had the Secretary of Agriculture at its top, with his appointments of a beef board below. The beef board convenes an operating committee. The operating committee designs the beef promotional campaigns funded by the assessment on beef producers, and the ag secretary has approval authority.
Thus, the majority opinion ruled that the speech at issue is governmental speech, not subject to First Amendment claims.
Scalia wrote, "The message set out in the beef promotions is from beginning to end the message established by the federal government.
The beef checkoff program began in 1986 and in 1988, beef producers voted to continue the program. Since then, it has generated more than $1 billion in collected fees from producers. In 2000, the Beef Board collected over $48 million in assessments and spent over $29 million on domestic promotion.
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