Johanns v. Livestock Marketing Association - government speech: it's what's for dinner!

• Author: Marshall, Andrew J.

In Johanns v. Livestock Marketing Assn, the United States Supreme Court upheld the beef checkoff program and effectively broadened the government speech doctrine. In a 6-3 decision, the Court held that the generic beef advertising program at issue was the government's own speech and therefore was exempt from the standard First Amendment scrutiny, regardless of any imposition on the beef producers' freedom of speech. The Court's decision allows the government to overrun citizens' freedom of speech simply by invoking the government speech defense without using any type of balancing or germaneness test. Although the Court's decision in Johanns gave lip service to requiring political accountability of the government before allowing it to invoke the government speech defense, true political accountability in Johanns was tenuous at best. The Court missed an opportunity to set outer boundaries to the government speech doctrine and will likely be revisiting this doctrine again in the near future.

1. INTRODUCTION

   Everyone has seen or heard a "Beef. Its Whats for Dinner." advertisement on the television or radio at one time or another. (1) It is also likely that almost no one would guess that the advertisements are created by the government, especially considering that many of the ads have "Funded by Americas Beef Producers" inscribed on them. (2) Regardless, the United States Supreme Court in Johanns v. Livestock Marketing Ass'n (3) held that it does not matter whether consumers know the advertisements are government speech because the government is now able to entirely avoid First Amendment scrutiny through invocation of the government speech doctrine. (4)

   The First Amendment of the United States Constitution sets forth restrictions on congressional ability to "abridge[] the freedom of speech...." (5) Nevertheless, this restriction is not absolute. (6) In some circumstances, Congress does have the ability to abridge the freedom of speech when it is in the greater interest of society. (7) In Johanns, however, the claim was centered on the implicit converse of the freedom to speak, the right to not speak or associate. (8) This right is not without its own limitations though, one of which is the government speech doctrine. (9)

   The government speech doctrine was borne from the reality that the government must have the ability to use tax dollars to communicate, even if some citizens object to the governments message. (10) Without the ability to tax, the government would not be able to effectively operate. (11) In 2005, the United States Supreme Court upheld the Beef Act and Beef Order by labeling the generic advertisements "government speech" which essentially immunized the advertisement from the typical First Amendment scrutiny. (12) Subsequent to this holding, many students and scholars wonder where the outer limit of the government speech exception to First Amendment scrutiny might be. (13) The following note will first examine the facts and procedure surrounding Johanns v. Livestock Marketing Ass'n, including the facts and various legal rationales utilized by the lower courts as well as by the U.S. Supreme Court. (14) In addition, this note will briefly examine the history and development of the First Amendment in general, and more specifically, the establishment of the constitutional right of freedom of speech. (15) The note will then examine the case law leading up to the government speech doctrine and the Johanns decision. (16) Finally, the analysis will conclude with an in-depth assessment explaining why the Court reached the wrong result in this case. (17)

2. FACTS AND PROCEDURE

   The federal government regulates several aspects of beef production, processing, and marketing. (18) The aspect of federal beef regulation at issue in Johanns was the Beef Promotion and Research Act of 1985 (Beef Act). (19) The Beef Act directs the Secretary of Agriculture to designate the Beef Promotion and Research Board to carry out the policy of promoting beef and products made of beef, under the Beef Act. (20) Once the Secretary appoints a Beef Board, the Board is to organize an Operating Committee by electing ten of its own members to be part of the Committee, and ten other representatives are elected by a federation composed of members of the state beef councils. (21) Furthermore, the Secretary is required to impose a one dollar-per-head assessment, also known as a "checkoff," on the sale or importation of all beef. (22) This checkoff is used to fund beef-oriented activities and advertisements designed by the Operating Committee and approved by the Secretary. (23) The checkoff dollars are then principally collected by individual state beef councils which send the revenue to the Beef Board. (24) Often, only fifty cents of the original one dollar actually goes to the Beef Board as the Beef Act and Beef Order allow producers to "voluntarily" give fifty cents of every dollar to their local state beef councils, instead of remitting the full one dollar assessment to the national Beef Board. (25)

   The Beef Order, as it was originally created in 1986, was only temporary and subject to a referendum of producers to determine whether it should be made permanent. (26) In 1988, a large majority of producers voted to continue the program. (27) Between 1988 and 2001, over $1 billion had been collected through the checkoff. (28) The majority of the money has been allotted to promotional advertisements using the trademarked slogan, "Beef. Its Whats for Dinner." (29) Many, although not all, of these advertisements contain the acknowledgment "Funded by Americas Beef Producers." (30) The majority of advertisements on television and in print also have a Beef Board logo, which is typically a check mark and the word "BEEF." (31) There is no indication in these advertisements, however, that the federal government is mandating them. (32)

   Each year, the checkoff accrues a significant sum of money for the Beef Board to use in its promotional activities. (33) For example, "[i]n the 2000 fiscal year ... the Beef Board collected over $48 million in assessments and spent over $29 million on domestic promotion." (34) In the 2001 fiscal year, the beef checkoff dollars totaled slightly over $86 million with approximately $38.6 million being transmitted directly from the local beef councils to the national Beef Board. (35) Additionally, importers of foreign beef contributed another $8.8 million in fiscal year 2001. (36) Since both domestic producers and foreign importers are required to pay the assessments, the ads make no distinction between foreign-raised and domestic-raised beef. (37) In contrast, United States beef can be specifically marketed as such in foreign countries. (38) More than half of the total beef checkoff monies, including those collected at the state level, are spent on generic advertising. (39) Eighty-five to ninety percent of the monies remitted to the Beef Board are used to support this generic advertising. (40)

   In December 2000, the respondents in this case, including Livestock Marketing Association, Western Organization of Resource Councils, and several solitary cattle producers, filed suit against the Secretary of Agriculture, the United States Department of Agriculture (USDA), and the Beef Board. (41) The respondents challenged the governments administration of the Beef Order. (42) The Beef Board responded to the petition drive by "significantly increas[ing] the expenditures on 'producer communications, or political messages supporting the checkoff and discouraging cattle producers from supporting a referendum." (43) The respondents brought suit on December 29, 2000, because the Secretary had not yet scheduled a referendum fourteen months after receiving the petitions. (44) The suit challenged the Secretarys lack of response to the petitions as well as the Beef Boards use of assessment monies to discourage producers from signing the petition. (45) Several independent producers, as well as Nebraska Cattlemen, Inc., intervened on behalf of the Beef Act and the Beef Order. (46) However, the Court decided United States v. United Foods, Inc. (47) while this case was pending. (48)

   In United Foods, the Court struck down "the materially identical mushroom promotion program" as violative of the First Amendment. (49) With this decision in its favor, Livestock Marketing Association then amended and broadened its complaint to allege that the Beef Act and Beef Order violated the First Amendment by requiring all cattle producers and cattle importers to pay an assessment to fund generic advertising. (50) After a two day bench trial, the District Court for the District of South Dakota concluded that the Beef Act and Beef Order unconstitutionally compelled the respondents to subsidize speech to which they objected. (51) The court also rejected the governments claim that the checkoff should survive First Amendment scrutiny simply because it only funds government speech. (52) The district court also concluded that the generic advertising was not government speech because the advertising was funded by the checkoff rather than by general tax revenue. (53) The court held, in the alternative, that even if the expression at issue was government speech, that alone would not preclude First Amendment scrutiny in the area of compelled speech. (54) Furthermore, the district court surmised that the USDA only has "ministerial oversight" over the Beef Board and that the Board is composed of private individuals. (55) The court believed both of these factors weighed against allowing the government to label the advertisements as government speech. (56) In coming to its conclusion, the district court did not apply the intermediate scrutiny analysis as set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission (57) because the court believed such an analysis is applicable only to restrictions on commercial speech and not to the compelled funding...