Johanns v. Livestock Marketing Assn.

Decision Date23 May 2005
Docket NumberNo. 03-1164.,03-1164.
PartiesJOHANNS, SECRETARY OF AGRICULTURE, ET AL. v. LIVESTOCK MARKETING ASSOCIATION ET AL.
CourtU.S. Supreme Court

The Beef Promotion and Research Act of 1985 (Beef Act) establishes a federal policy of promoting and marketing beef and beef products. The Secretary of Agriculture has implemented the Beef Act through a Beef Promotion and Research Order (Order), which creates a Cattlemen's Beef Promotion and Research Board (Beef Board) and an Operating Committee, and imposes an assessment, or "checkoff," on all sales and importation of cattle. The assessment funds, among other things, beef promotional campaigns approved by the Operating Committee and the Secretary. Respondents, associations whose members pay the checkoff and individuals whose cattle are subject to the checkoff, challenged the program on First Amendment grounds, relying on United States v. United Foods, Inc., 533 U. S. 405, in which this Court invalidated a mandatory checkoff that funded mushroom advertising. The District Court found that the Beef Act and Order unconstitutionally compel respondents to subsidize speech to which they object. Affirming, the Eighth Circuit held that compelled funding of speech may violate the First Amendment even when it is the government's speech.

Held: Because the beef checkoff funds the Government's own speech, it is not susceptible to a First Amendment compelled-subsidy challenge. Pp. 557-567.

(a) This Court has sustained First Amendment challenges in "compelled-subsidy" cases, in which the government requires an individual to subsidize a private message he disagrees with. See Keller v. State Bar of Cal., 496 U. S. 1; Abood v. Detroit Bd. of Ed., 431 U. S. 209. Keller and Abood led the Court to sustain a compelled-subsidy challenge to an assessment whose only purpose was to fund mushroom advertising. United Foods, supra, at 413, 415-416. However, the speech in United Foods, Keller, and Abood was found, or presumed, to be private. The compelled-subsidy cases have consistently respected the principle that compelled support of private speech differs from compelled support of government speech. The Court has generally assumed, though not squarely held, that such funding of government speech does not alone raise First Amendment concerns. Pp. 557-559.

(b) Respondents argue that the speech here is not government speech because it is controlled by nongovernmental entities, i. e., the Beef Board and Operating Committee. In fact, the message is effectively controlled by the Federal Government. Congress and the Secretary have set out the overarching message and some of the campaign's elements, and have left the development of the remaining details to the Operating Committee, half of whose members are appointed by the Secretary and all of whom are subject to removal by the Secretary. The Secretary also has final approval authority over every word in every promotional campaign, and his subordinates attend and participate in meetings at which proposals are developed. By contrast, in Keller the compelled subsidy funded communicative activities that were not prescribed by law or developed under official government supervision. Nor does the Order's funding mechanism affect the compelled-subsidy analysis. That citizens have no First Amendment right not to fund government speech is no less true when, as here, the funding is achieved through targeted assessments devoted to a program to which some assessed citizens object, rather than through general taxes. The Court need not address respondents' argument that the advertisements, most of which are credited to "America's Beef Producers," give the impression that respondents endorse their message. Neither the Beef Act nor the Order requires attribution of the ads to "America's Beef Producers" or to anyone else, so neither can be facially invalid on this theory, and the record contains no evidence from which to conclude that the ads' message would be associated with respondents. Pp. 560-567.

(c) Respondents may proceed with their other challenges to the Beef Act and Order, which the District Court did not reach. P. 567.

335 F. 3d 711, vacated and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, THOMAS, and BREYER, JJ., joined. THOMAS, J., post, p. 567, and BREYER, J., post, p. 569, filed concurring opinions. GINSBURG, J., filed an opinion concurring in the judgment, post, p. 569. KENNEDY, J., filed a dissenting opinion, post, p. 570. SOUTER, J., filed a dissenting opinion, in which STEVENS and KENNEDY, JJ., joined, post, p. 570.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

Deputy Solicitor General Kneedler argued the cause for the federal petitioners in No. 03-1164. With him on the briefs in both cases were Acting Solicitor General Clement Assistant Attorney General Keisler, Irving L. Gornstein, Douglas N. Letter, and Matthew M. Collette.

Gregory G. Garre argued the cause for petitioners in No. 03-1165. With him on the briefs was Lorane F. Hebert.

Laurence H. Tribe argued the cause for respondents in both cases. With him on the brief were Thomas Goldstein, Amy Howe, Philip Olsson, Ronald A. Parsons, Jr., and Scott N. Heidepriem.

JUSTICE SCALIA delivered the opinion of the Court.

For the third time in eight years, we consider whether a federal program that finances generic advertising to promote an agricultural product violates the First Amendment. In these cases, unlike the previous two, the dispositive question is whether the generic advertising at issue is the Government's own speech and therefore is exempt from First Amendment scrutiny.

I
A

The Beef Promotion and Research Act of 1985 (Beef Act or Act), 99 Stat. 1597, announces a federal policy of promoting the marketing and consumption of "beef and beef products," using funds raised by an assessment on cattle sales and importation. 7 U.S. C. § 2901(b). The statute directs the Secretary of Agriculture to implement this policy by issuing a Beef Promotion and Research Order (Beef Order or Order), § 2903, and specifies four key terms it must contain: The Secretary is to appoint a Cattlemen's Beef Promotion and Research Board (Beef Board or Board), whose members are to be a geographically representative group of beef producers and importers, nominated by trade associations. § 2904(1). The Beef Board is to convene an Operating Committee, composed of 10 Beef Board members and 10 representatives named by a federation of state beef councils. § 2904(4)(A). The Secretary is to impose a $1-per-head assessment (or "checkoff") on all sales or importation of cattle and a comparable assessment on imported beef products. § 2904(8). And the assessment is to be used to fund beef-related projects, including promotional campaigns, designed by the Operating Committee and approved by the Secretary. §§ 2904(4)(B), (C).

The Secretary promulgated the Beef Order with the specified terms. The assessment is collected primarily by state beef councils, which then forward the proceeds to the Beef Board. 7 CFR § 1260.172(a)(5) (2004).1 The Operating Committee proposes projects to be funded by the checkoff including promotion and research. § 1260.167(a). The Secretary or his designee (see §§ 2.22(a)(1)(viii)(X), 2.79(a)(8)(xxxii)) approves each project and, in the case of promotional materials, the content of each communication. §§ 1260.168(e), 1260.169; App. 114, 143.

The Beef Order was promulgated in 1986 on a temporary basis, subject to a referendum among beef producers on whether to make it permanent. 7 U. S. C. §§ 2903, 2906(a). In May 1988, a large majority voted to continue it. Since that time, more than $1 billion has been collected through the checkoff, 132 F. Supp. 2d 817, 820 (SD 2001), and a large fraction of that sum has been spent on promotional projects authorized by the Beef Act—many using the familiar trademarked slogan "Beef. It's What's for Dinner." App. 50. In fiscal year 2000, for example, the Beef Board collected over $48 million in assessments and spent over $29 million on domestic promotion. The Board also funds overseas marketing efforts; market and food-science research, such as evaluations of the nutritional value of beef; and informational campaigns for both consumers and beef producers. See 7 U. S. C. §§ 2902(6), (9), (15), 2904(4)(B).

Many promotional messages funded by the checkoff (though not all, see App. 52-53) bear the attribution "Funded by America's Beef Producers." E. g., id., at 50-51. Most print and television messages also bear a Beef Board logo, usually a checkmark with the word "BEEF." E. g., id., at 50-52.

B

Respondents are two associations whose members collect and pay the checkoff, and several individuals who raise and sell cattle subject to the checkoff. Id., at 17-19. They sued the Secretary, the Department of Agriculture, and the Board in Federal District Court on a number of constitutional and statutory grounds not before us—in particular, that the Board impermissibly used checkoff funds to send communications supportive of the beef program to beef producers. 132 F. Supp. 2d, at 823. Petitioners in No. 03-1165, a state beef producers' association and two individual producers, intervened as defendants to argue in support of the program. The District Court granted a limited preliminary injunction, which forbade the continued use of checkoff funds to laud the beef program or to lobby for governmental action relating to the checkoff. Id., at 832.

While the litigation was pending, we held in United States v. United Foods, Inc., 533 U. S. 405 (2001), that a mandatory checkoff for generic mushroom advertising violated the First Amendment. Noting that the mushroom program closely resembles the beef program,2 respondents amended their complaint to assert a First Amendment challenge to the use of the beef checkoff for promotional activity. 207 F....

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