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Full Court Press: Charles Lane

Justices to Hear Cattle Producers' Beef on Ads

By Charles Lane
Monday, December 6, 2004; Page A19

"Beef -- It's What's for Dinner." You could easily imagine some people objecting to that familiar ad -- a vegetarian, perhaps, or a New England fisherman. But surely no one who makes a living off the production of steaks and chops would have anything against it, right?

Wrong. The Livestock Marketing Association, the Western Organization of Resource Councils and several individual cattle producers from South Dakota and Montana filed suit in federal court in December 2000, attacking the advertising campaign. They said the promotion, conducted under the auspices of the U.S. Department of Agriculture, violates their First Amendment right to free speech.

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Their beef is that all cattle producers have to pay a special tax to support the ads, but that some disagree with their content. They said the generic pro-beef message does not distinguish between grain-fed domestic and grass-fed imported beef, and it seems to lump together all cattle producers, large and small, despite their differing political and economic interests.

"The assessments mandated by the Beef Act cannot survive the demanding First Amendment scrutiny this court has applied to laws compelling private persons to finance speech," the opponents say in their brief for the Supreme Court.

On Wednesday the justices will hear oral arguments in the case, widely considered the juiciest First Amendment controversy of the term so far.

It may clarify the category of expression known as "government speech" and could have implications for federal promotional campaigns for products such as cotton ("The Fabric of Our Lives"), potatoes, eggs, honey, watermelon and even popcorn -- as well as comparable state programs. The "Pork: The Other White Meat" and "Got Milk?" advertising campaigns are already in trouble, having been declared unconstitutional by federal appeals courts in rulings the government has appealed to the Supreme Court.

Congress was only trying to help the beef industry when it passed the Beef Promotion and Research Act of 1985, which created the Cattlemen's Beef Promotion and Research Board, or Beef Board, to spread the good word about red meat. The law authorized the secretary of agriculture to fund the campaign through a dollar-per-head tax on every beef cow sold in the United States. In 2003, cattle producers paid $82.7 million to support the Beef Board's ads and those of its state counterparts.

But opponents of the ads say the operation is an exercise in unconstitutional "compelled speech" -- no different from a similar mushroom promotion program that the court struck down in 2001.

"First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors," Justice Anthony M. Kennedy wrote for the court in the mushroom case.

The St. Louis-based U.S. Court of Appeals for the 8th Circuit agreed last year with the opponents. The Bush administration, supported by a group of Nebraska cattle producers, appealed, setting the stage for the Supreme Court case. In 1997, the court had upheld a federal promotional levy on growers of peaches and other "tree fruit" in California, ruling that the tax should be seen as part of a broader web of regulations that limited competition in that business.

So some of the confusion the court is being asked to clear up is of its own making.

The administration argues that the basic pro-beef message was determined by Congress and is therefore government speech, akin to Army recruitment ads. If the court lets the cattle producers say that paying taxes to support the ads violates their rights, then soon every pacifist will demand the right to withhold the percentage of his income taxes that funds "An Army of One," the government argues.

"Government could not function effectively if such suits could be maintained," its brief says.

Opponents say that, although the government may have set up the campaign in general terms, and the agriculture secretary retains a veto over the ads, the content is created by the industry's representatives on the Beef Board.

The court will hear two consolidated cases, Veneman v. Livestock Marketing Association, No. 03-1164, and Nebraska Cattlemen Inc. v. Livestock Marketing Association, No. 03-1165. A decision is expected by July.

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