Cattle on a Thousand Hills: Reflections on the Beef Checkoff Litigation
Parsons, Ronald A., Jr., South Dakota Law Review
Over the years, the federal government and state governments have passed laws authorizing producers of various agricultural commodities to assess and collect mandatory fees in order to pay for the generic advertising of their products. These programs are commonly called "checkoffs," referring to a bookkeeping mechanism indicating the regular payment of fees in order to support an obligation such as union dues. The advertising created and paid for with these fees has featured some of the most memorable commercial messages of our time. Through marketing funded by producer checkoffs, we have been reassured that cotton is "the fabric of our lives," taught that pork is "the other white meat," encouraged to "behold the power of cheese," and asked to confirm that we have, indeed, "got milk" in our refrigerators. The popular Claymation commercial featuring the California Raisins singing "Heard it through the grapevine" was created by the California Raisin Advisory Board. In Louisiana, the Department of Wildlife and Fisheries secured the enactment of an industry checkoff for alligator products. For all we know, here in South Dakota there may be buffalo, pheasant, and coyote checkoffs in the works.
Most everyone is familiar with advertisements promoting cattle consumption in American households with the imperative that "beef" is "what's for dinner." These commercials and others like it are funded by the beef checkoff, a mandatory one dollar fee assessed every time that a cow is sold in the United States. An equivalent fee is assessed on the importation of foreign beef and deposited into the same fund. Until the beef checkoff litigation, it is safe to say that virtually no one--including the cattle producers that selected and paid for the advertising--would have imagined that these messages were the speech of the United States government. The very suggestion probably would have offended most cattle producers.
In Johanns v. Livestock Marketing, Association, (1) however, the Supreme Court held that generic advertising funded by targeted assessments on beef producers was "government speech" that is not susceptible to a First Amendment challenge by those who objected to being compelled to subsidize messages with which they disagreed. (2) The decision effectively ended legal struggles by producers of various commodities seeking to invalidate checkoff programs that have collected billions of dollars over the years.
This article is not intended to reargue the Johanns decision. Rather, I seek here simply to provide some historical context and, along the way, tell the story of how an attorney in Sioux Falls, South Dakota, less than three years removed from law school, found himself involved in this fascinating and high-stakes litigation that would eventually ascend to the highest court in the land.
THE FRUIT OF THE TREE
In 1997, the Supreme Court considered a challenge brought by growers, handlers, and processors of California tree fruits to assessments that they were required to pay for the generic advertising of nectarines, plums, and peaches. These assessments were imposed by the Secretary of Agriculture pursuant to marketing orders promulgated under the Agricultural Marketing Agreement Act of 1937. (3) These marketing orders were a form of comprehensive economic regulation that displaced competition and governed the marketing conditions for California tree fruits to such an extent that they amounted to virtual collectivization.
The group of California tree fruit producers who brought suit contended that their First Amendment rights to be free from compelled speech were violated by a requirement imposed under the marketing orders to collectively fund generic advertising to which they objected. It is generally acknowledged that while the government can speak for itself, or even retain others for the purpose of communicating messages funded with government revenue, it may not compel private individuals or groups to subscribe to or advance speech favored by others or favored by the government. …