| Posted June 16, 2005:
To listen to some of the comments that have been made
since the US Supreme Court ruling on the beef checkoff, it would
be easy to think that the checkoff programs are on solid legal
grounds and that the other checkoff cases will be dismissed.
In fact, one such headline read; “Supreme Court Rules
That Beef Checkoff Program Is Constitutional.” While that
may eventually prove to be true, that is not what the Supreme
Court ruled in this particular case. Let’s look at what
the Supreme Court justices actually ruled.
To help us in our efforts, since we are agricultural economists
and not lawyers, we sought the aid of a colleague of ours,
Chris Clark, to look more deeply into what the justices did
and didn’t say in their ruling. Clark was a practicing
attorney before returning to graduate school to complete his
PhD. He is currently on the faculty here at The University
of Tennessee and teaches classes in both agricultural economics
and agricultural law.
Clark notes that because the lower courts invalidated the
beef checkoff program solely on First Amendment or “freedom
of speech” grounds, the only issue before the Supreme
Court was whether or not the program violated the free speech
rights of beef producers who “disagreed” with
the program’s generic “Beef. It’s what’s
for dinner” advertising campaign. Thus, in overturning
the lower court decisions, the Supreme Court simply held that
the legislation authorizing the use of checkoff proceeds to
fund an advertising campaign did not violate the First Amendment
because it was “Government speech” that is exempt
from First Amendment scrutiny.
In so doing, the Supreme Court also broke with one of its
previous decisions that held that a similar law constituted
“compelled speech” that violated freedom of speech
right guaranteed by the First Amendment. In a 2001 ruling,
the Supreme Court, in the mushroom checkoff case (US vs. United
Foods), ruled that forcing mushroom producers to fund a mushroom
advertising campaign violated their free speech rights because
of the compelled nature of the funding mechanism, in the absence
of other regulatory purposes. The issue of whether the campaign
constituted “government speech” was not raised
in that case.
Those challenging the beef checkoff made several arguments
in support of their position that the advertising constituted
compelled speech. First they argued that the speech cannot
be the government’s because it is developed by the Beef
Board and its Operating Committee. In response to this, Justice
Scalia, writing for the majority, opined, “When, as
here, the government sets the overall message to be communicated
and approves every word that is disseminated, it is not precluded
from relying on the government-speech doctrine merely because
it solicits assistance from nongovernmental sources in developing
specific messages.”
The second point of challenge was “that the beef program
does not qualify as ‘government speech’ because
it is funded by a targeted assessment on beef producers, rather
than by general revenues.” Negating this argument, Scalia
wrote that the Court’s “analysis is altogether
unaffected by whether the funds for the promotion are raised
by general taxes or through a targeted assessment.”
The next point the challengers raised was that “crediting
the advertising to ‘America’s Beef Producers’
impermissibly uses not only their money but also their seeming
endorsement to promote a message with which they do not agree.”
Because the legislation authorizing the checkoff does not
require that the ads be attributed to “America’s
Beef Producers,” and because insufficient sample material
was presented to the court, the court did not rule on the
validity of this argument.
However, Scalia’s majority opinion make it clear that
the ads could be considered “compelled speech”
and thus a violation of the First Amendment, if “a viewer
would identify the speech as respondent’s [those challenging
the checkoff].” Thus, while the Court has held that
the program itself does not violate the First Amendment, the
fate of the “brought to you by America’s Beef
Producers” tagline remains much less clear.
In the final two paragraphs of the majority opinion, Scalia
notes that those challenging the program have “asserted
a number of other grounds for declaring the Beef Act, the
Beef Order, or both invalid in their entirety.” Because
the District Court did not have an occasion to address these
other grounds, the “cases are remanded for further proceedings
consistent with this opinion.”
Translated, that means that the District Court will now be
hearing the other issues that were raised by the opponents
of the beef checkoff, unless they were to drop the case. As
Yogi Berra said, “It ain’t over till its over.”
Daryll E. Ray holds the Blasingame Chair of Excellence
in Agricultural Policy, Institute of Agriculture, University
of Tennessee, and is the Director of UT's Agricultural Policy
Analysis Center (APAC). (865) 974-7407; Fax: (865) 974-7298;
dray@utk.edu; http://www.agpolicy.org.
Daryll Ray's column is written with the research and assistance
of Harwood D. Schaffer, Research Associate with APAC.
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