Uncovering coherence in compelled subsidy of speech doctrine: Johanns v. Livestock Marketing Ass'n.

• Author: Champoux, Mark

A large number of agriculture products are generically advertised through federal or state-led promotion programs funded by mandatory assessments ("checkoffs") imposed on producers. (1) Since their inception in the 1980s, these checkoff programs have been subject to First Amendment challenges for compelling producers to pay for speech with which some of them do not agree. In the first agriculture checkoff case to go before the United States Supreme Court, Glickman v. Wileman Bros. & Elliot, Inc., (2) the Court upheld the use of mandatory assessments to fund promotions for California tree fruit as part of a broader regulatory system aimed at maintaining a stable fruit market. Four years later in United States v. United Foods, Inc., (3) the Court struck down a mushroom checkoff as an unconstitutional compelled subsidy, distinguishing the case from Glickman on the ground that mushroom advertising was the central, rather than ancillary, purpose to the overall regulatory scheme. (4) Although the decision in United Foods gave reason for optimism to those who opposed checkoffs, the Court implied that similar checkoff programs might be upheld if the promotions could qualify as government speech. (5) Last Term, in Johanns v. Livestock Marketing Ass'n, (6) that suggestion became reality as the Court rejected a challenge to the federal beef checkoff program (famous for its slogan, "Beef. It's What's for Dinner") by holding beef promotions to be government speech and thus not subject to a First Amendment challenge as a compelled subsidy. Despite an apparent lack of any unifying guiding principle in this line of cases, some coherence emerges when viewed in the context of government support for collective enterprise; moreover, this view reveals a possibility of ensuring First Amendment protections while leaving aside difficult questions of direct limitations on government speech.

The Beef Promotion and Research Act of 1985 (7) (Beef Act) directs the Secretary of Agriculture (Secretary) to implement a federal program to promote the marketing and consumption of beef. (8) This program is led by a Beef Promotion and Research Board (Beef Board), whose members are nominated by trade associations and appointed by the Secretary and an Operating Committee, which is composed of ten Beef Board members and ten representatives appointed by state beef councils. (9) The Operating Committee proposes beef-related projects and promotional campaigns, which are all subject to approval by the Secretary. (10) To fund the program, the Secretary imposes a mandatory one dollar per head assessment on all sales and importation of cattle. (11)

A group of associations and individuals subject to the checkoff brought suit in the U.S. District Court for the District of South Dakota, challenging the assessment on both constitutional and statutory grounds. (12) While the litigation was pending, the Supreme Court decided United Foods, striking down a similar mushroom promotion program. The plaintiffs amended their complaint to include a constitutional challenge under United Foods, alleging that the beef checkoff violated their First Amendment rights to freedom of speech and association by compelling them to pay for advertisements with which they disagreed. (13)

Following a bench trial the district court found in favor of the plaintiffs and held the Beef Act unconstitutional under the First Amendment. (14) Comparing the beef promotion program to the mushroom checkoff invalidated in United Foods, the court found that "[t]he beef checkoff is, in all material respects, identical." (15) The court, relying partly on a decision by the Court of Appeals for the Third Circuit (16) in a separate challenge to the Beef Act, further rejected the defendants' argument that the beef promotions constitute government speech and are therefore exempt from First Amendment challenge, (17) instead finding the Beef Board to be more "akin to a labor union or state bar association" than to a governmental agency. (18)

The Court of Appeals for the Eighth Circuit affirmed. Although it did not dispute that the beef promotions might be characterized as government speech, the court interpreted the relevant precedent to distinguish between First Amendment challenges to the speech's content and challenges to its compelled funding as a type of compelled speech, holding that a government speech defense is only applicable in the former. (19) The court agreed with the district court's finding that the beef promotion program is identical to United Food's mushroom program and likewise constitutes compelled speech. (20) Finally, the Eighth Circuit held that the government's interest in facilitating beef promotion does not outweigh the plaintiffs' infringed First Amendment rights. (21)

The Supreme Court reversed, holding that the beef promotions constitute government speech and are therefore not susceptible to a First Amendment compelled subsidy challenge. (22) Writing for the majority, Justice Scalia (23) described two categories of "allegedly compelled expression": (24) true compelled speech cases in which the government forces an individual to express a message with which he disagrees, (25) and compelled subsidy cases in which the government mandates that an individual subsidize a message with which he disagrees. (26) Although true compelled speech cases do implicate the First Amendment, the Court found that, in all of its compelled subsidy cases, it has "consistently respected the principle that '[c]ompelled support of a private association is fundamentally different from compelled support of government," (27) and it has "generally assumed ... that compelled funding of government speech does not alone raise First Amendment concerns." (28)

To show that the beef promotions constitute the kind of government speech assumed to be exempt from First Amendment challenge, the Court found that the message of the beef promotions is, in fact, effectively controlled by the government. According to the Court, the overarching message of the promotions and many of their details are prescribed directly by Congress (through the Beef Act) and by the Secretary (through the order issued pursuant to the Act). (29) Remaining details are left to the Operating Committee, half the members of which are appointed by the Secretary, who also exercises final approval authority over all beef...