Beef Checkoff Case Appealed to U.S. Supreme Court

A group of Nebraska cattle producers and the U.S. Justice Department will ask the nation's highest court to review an appeals court ruling that the national beef checkoff program is unconstitutional.

The appeal will be filed this week, said Greg Ruehle, executive vice president of Nebraska Cattlemen.

The case stems from a July decision by the 8th U.S. Circuit Court of Appeals that American beef producers do not have to pay a $1-per-head fee on cattle sold in the United States.

Money raised from the checkoff is used to help fund advertising, education and research programs.

Since 1985, livestock producers have had to pay the mandatory fee on cattle sold in the United States. Half of that money goes to the Cattlemen's Beef Promotion and Research Board and half to qualified state beef councils. The groups came up with the popular "Beef: It's What's for Dinner" slogan.

The appeals court affirmed a 2002 decision by U.S. District Judge Charles Kornmann of Aberdeen, S.D., that the mandatory program violates the constitutional rights of cattle ranchers by infringing on their First Amendment right to free speech.

The case began when three South Dakota ranchers, the Livestock Marketing Association and others sued the U.S. Department of Agriculture and the Cattlemen's Beef Promotion and Research Board, an arm of the department.

They argued that ads paid for through the program promote beef in general and not just beef raised in the United States. In effect, they don't want to pay for a marketing campaign with which they don't agree.

Ruehle said the Supreme Court appeal will partly be based on a 2000 decision by the high court in a Wisconsin case. In that ruling, the high court said state-run schools can subsidize campus groups with money collected from mandatory student fees without violating the rights of students who find some of those groups objectionable.

The justices unanimously upheld the University of Wisconsin's student-fee system after finding the school does not pick and choose which student groups to fund based on the views they espouse.

The court previously had allowed members of labor unions and bar associations to opt out of paying mandatory dues that might subsidize political advocacy.

Lawyers for the Agriculture Department argued that the beef checkoff program funds government speech, and the government gets to determine the content of its own speech and is not subject to First Amendment scrutiny.

The appeals court concluded that the government "inadvertently identified the precise flaw in their government speech argument."

Making beef producers pay for a marketing message they don't agree with is a type of "government interference with private speech," the appeals court said.

In earlier cases, the U.S. Supreme Court has ruled that a checkoff program for mushrooms was unconstitutional because it, too, touted mushrooms in general. But the high court has upheld a checkoff program for fruit trees.

In October, a panel of the 6th U.S. Circuit Court of Appeals upheld a judge's decision that the USDA's pork-checkoff program was unconstitutional.

© 2004 Associated Press

Update May 24, 2004: Supreme Court Will Rule on Beef Check-off

Early report on beef checkoff background

Our report on the Eight Circuit Court ruling

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