Finding that the national beef checkoff program is the government’s own speech, the U.S. Supreme Court ruled May 23 that the generic industry marketing program is not subject to a First Amendment challenge.

This decision is expected to affect other similar cases pending with the Supreme Court, including one concerning the dairy producer checkoff program, managed by Dairy Management Inc. (DMI). In fact, within a week after the ruling, the Supreme Court sent a case involving the dairy checkoff back to the Third Circuit Court of Appeals for further consideration.

Cattle producers who don’t agree with the generic marketing message filed suit against their industry’s checkoff program, claiming its $1 per animal assessment violated their free speech rights. Justice Antonin Scalia delivered the opinion of the court, which split 6-3 in favor of the program, stating that the beef checkoff message is effectively controlled by the government and is therefore not subject to a First Amendment challenge under federal law. Scalia noted the secretary of the U.S. Department of Agriculture (USDA) “has final approval authority over every word in every promotional campaign” as evidence of the government’s voice in the program.

This is the third time in eight years the Supreme Court has ruled on checkoff programs, but the first time it was asked to consider whether a program was government speech. The court ruled in 1997 in favor of the California peach, plum and nectarine industry program, finding the checkoff was constitutional within the strictly regulated tree-fruit industry. In the second case, in June 2001, the court ruled against the Mushroom Promotion Act, primarily because justices found that mandatory assessments for industries that operate in a free market environment violated free speech rights.

“I am extremely pleased that the U.S. Supreme Court overturned the lower courts’ decisions and ruled in favor of the beef checkoff program,” Agriculture Secretary Mike Johanns said, noting that USDA will review the decision to determine implications for other First Amendment challenges to checkoff programs. “This is certainly a win for the many producers who recognize the power of pooled resources.”

The Third Circuit Court of Appeals in February 2004 declared the dairy checkoff program unconstitutional, finding it to constitute private speech, in a lawsuit brought by Pennsylvania dairy farmers Joseph and Brenda Cochran in 2002.

Mass media coverage has often incorrectly referred to the “got milk?” campaign as being among the challenged programs. There have been no challenges to the dairy processor-funded Milk Processor Education Program (MilkPEP), which runs the National Milk Mustache “got milk?” Campaign. The “got milk?” campaign run by California dairy companies also is not involved in any generic marketing litigation.

Source: IDFA