Supreme Court decision in beef case buoys commodity groups
Supreme Court decision in beef case buoys commodity groups
May 23 was a good day for commodity promotion programs when the U.S. Supreme Court ruled that the Beef Council program qualifies as "government speech" and thus is exempt from First Amendment challenges.
The ruling was the latest from the Supreme Court on the issue of mandatory funding of commodity promotion programs, and was a clear victory for the proponents of these programs that are typically under the purview of the U.S. Department of Agriculture or state agricultural agencies.
The Supreme Court ruling said that Beef Council's efforts are administered by the USDA and constitute a government action. "The message set out in the beef promotions is from beginning to end the message established by the federal government, Justice Antonin Scalia wrote in the majority opinion, which was signed by Chief Justice William H. Rehnquist as well as Justices Sandra Day O'Connor, Clarence Thomas and Stephen G. Breyer.
Kathleen Nave, president of the California Table Grape Commission, which has been challenged in both state and federal court, said that this is a huge victory for commodity groups -- the biggest at least since the Wileman decision of the late 1990s. In that case, the Supreme Court ruled that promotion programs for California peaches, plums and nectarines, and the mandatory funding of them, are constitutional as long as they are part of a comprehensive regulatory scheme. Since that ruling, opponents of the mandatory funding of the promotion programs have had a number of wins in lower courts as well as the Supreme Court's invalidation of the Mushroom Council's promotion program.
Different arguments have been advanced by each side over the 20-year history of the argument. But in recent years, the First Amendment violation argument has been one of the stronger ones put forth by the opponents of promotion programs. Farmers of many different commodities have filed lawsuits claiming that their First Amendment rights have been violated as they have been compelled to fund speech (the advertising programs) with which they don't agree.
More times than not, that argument has prevailed at the lower level.
Ms. Nave is hopeful that this latest Supreme Court ruling puts an end to that argument. She said that the court has clearly ruled that these programs are government speech and deserve the same protection as other government "speech, such as the right to tax.
Ms. Nave said that she would be meeting with grape commission lawyers to determine how this ruling might affect the ongoing cases against the commission's legality. She was not ready to discuss the commission's specific strategy, but said that other boards embroiled in court cases might ask for immediate dismissal of their cases based on this ruling.
Ms. Nave said that the government speech argument would no doubt be used by defenders of these programs from now on. "Frankly I do not know why it wasn't part of the arguments at the very beginning [for other boards]. We have always included the government speech argument in our briefs.
This was the first time the government speech argument was presented to the Supreme Court as part of the commodity promotion defense. And consequently, it was the first time the court has ruled on this argument.
A well-known opponent of marketing orders and commodity promotion programs played down the importance of this latest Supreme Court ruling. Brian Leighton, a California attorney who is involved in the effort to invalidate nine different California promotion programs, said that the ruling will not affect his cases. "My cases are in state court and will be decided by the California constitution, he said.
Mr. Leighton added that media reports about the Supreme Court's Beef Council decision appear to make it a much more definitive decision than it was. "[The Supreme Court] left a lot of wiggle room, he said.
As a matter of fact, Mr. Leighton, who is based in Fresno, said that all the Supreme Court did was to vacate the lower court ruling and remand the case back to that court to determine if it indeed was government speech.
"They said it might be, he quipped.
Mr. Leighton believes he could prove that these marketing orders are directed and controlled by the producers, not by the government. He believes that very few orders could stand up to the government speech criteria established in this decision.
Judging by quoted comments in newspapers around the country from attorneys and others interested in this case and on both sides of it, Mr. Leighton's assessment is not universally accepted.
"What the Supreme Court said that is disappointing to us is that they've determined that the beef checkoff was government speech, said John McBride, director of information for the Livestock Marketing Association, whose comments were quoted on the group's web site. LMA has fought against the constitutionality of the checkoff system for the past seven years, but said it did not know whether it would continue to fund the fight.
Lawrence Tribe, a constitutional expert from Harvard who argued the case to the Supreme Court against the beef program, said, "It's odd that the court would find beef more like a fruit than a fungus, referring to the court's earlier validation of tree fruit advertising and invalidation of mushroom advertising. He added that the court's ruling didn't seem to take into account that the speech in question is "funded coercively by a narrow segment of taxpayers.
"We are elated, Jim McAdams, president of the National Cattlemen's Beef Association, wrote on that group's web site. "This is a victory for all producers who want demand-building efforts in beef safety, nutrition and promotion continued.
In writing a dissenting opinion, Justice David H. Souter, joined by Justices John Paul Stevens and Anthony Kennedy, said that the campaign was not government speech. He said that if the government seeks "to compel specific groups to fund speech with targeted taxes, it must make itself politically accountable for indicating that the content actually is a government message.
Mr. Leighton did say that the ruling could have a negative effect on these orders in the future as the producer community tends to believe it is in charge of these programs. He opined that if the government is truly running these efforts, and producers know that, they might be less likely to vote for them in the future.
The ruling was the latest from the Supreme Court on the issue of mandatory funding of commodity promotion programs, and was a clear victory for the proponents of these programs that are typically under the purview of the U.S. Department of Agriculture or state agricultural agencies.
The Supreme Court ruling said that Beef Council's efforts are administered by the USDA and constitute a government action. "The message set out in the beef promotions is from beginning to end the message established by the federal government, Justice Antonin Scalia wrote in the majority opinion, which was signed by Chief Justice William H. Rehnquist as well as Justices Sandra Day O'Connor, Clarence Thomas and Stephen G. Breyer.
Kathleen Nave, president of the California Table Grape Commission, which has been challenged in both state and federal court, said that this is a huge victory for commodity groups -- the biggest at least since the Wileman decision of the late 1990s. In that case, the Supreme Court ruled that promotion programs for California peaches, plums and nectarines, and the mandatory funding of them, are constitutional as long as they are part of a comprehensive regulatory scheme. Since that ruling, opponents of the mandatory funding of the promotion programs have had a number of wins in lower courts as well as the Supreme Court's invalidation of the Mushroom Council's promotion program.
Different arguments have been advanced by each side over the 20-year history of the argument. But in recent years, the First Amendment violation argument has been one of the stronger ones put forth by the opponents of promotion programs. Farmers of many different commodities have filed lawsuits claiming that their First Amendment rights have been violated as they have been compelled to fund speech (the advertising programs) with which they don't agree.
More times than not, that argument has prevailed at the lower level.
Ms. Nave is hopeful that this latest Supreme Court ruling puts an end to that argument. She said that the court has clearly ruled that these programs are government speech and deserve the same protection as other government "speech, such as the right to tax.
Ms. Nave said that she would be meeting with grape commission lawyers to determine how this ruling might affect the ongoing cases against the commission's legality. She was not ready to discuss the commission's specific strategy, but said that other boards embroiled in court cases might ask for immediate dismissal of their cases based on this ruling.
Ms. Nave said that the government speech argument would no doubt be used by defenders of these programs from now on. "Frankly I do not know why it wasn't part of the arguments at the very beginning [for other boards]. We have always included the government speech argument in our briefs.
This was the first time the government speech argument was presented to the Supreme Court as part of the commodity promotion defense. And consequently, it was the first time the court has ruled on this argument.
A well-known opponent of marketing orders and commodity promotion programs played down the importance of this latest Supreme Court ruling. Brian Leighton, a California attorney who is involved in the effort to invalidate nine different California promotion programs, said that the ruling will not affect his cases. "My cases are in state court and will be decided by the California constitution, he said.
Mr. Leighton added that media reports about the Supreme Court's Beef Council decision appear to make it a much more definitive decision than it was. "[The Supreme Court] left a lot of wiggle room, he said.
As a matter of fact, Mr. Leighton, who is based in Fresno, said that all the Supreme Court did was to vacate the lower court ruling and remand the case back to that court to determine if it indeed was government speech.
"They said it might be, he quipped.
Mr. Leighton believes he could prove that these marketing orders are directed and controlled by the producers, not by the government. He believes that very few orders could stand up to the government speech criteria established in this decision.
Judging by quoted comments in newspapers around the country from attorneys and others interested in this case and on both sides of it, Mr. Leighton's assessment is not universally accepted.
"What the Supreme Court said that is disappointing to us is that they've determined that the beef checkoff was government speech, said John McBride, director of information for the Livestock Marketing Association, whose comments were quoted on the group's web site. LMA has fought against the constitutionality of the checkoff system for the past seven years, but said it did not know whether it would continue to fund the fight.
Lawrence Tribe, a constitutional expert from Harvard who argued the case to the Supreme Court against the beef program, said, "It's odd that the court would find beef more like a fruit than a fungus, referring to the court's earlier validation of tree fruit advertising and invalidation of mushroom advertising. He added that the court's ruling didn't seem to take into account that the speech in question is "funded coercively by a narrow segment of taxpayers.
"We are elated, Jim McAdams, president of the National Cattlemen's Beef Association, wrote on that group's web site. "This is a victory for all producers who want demand-building efforts in beef safety, nutrition and promotion continued.
In writing a dissenting opinion, Justice David H. Souter, joined by Justices John Paul Stevens and Anthony Kennedy, said that the campaign was not government speech. He said that if the government seeks "to compel specific groups to fund speech with targeted taxes, it must make itself politically accountable for indicating that the content actually is a government message.
Mr. Leighton did say that the ruling could have a negative effect on these orders in the future as the producer community tends to believe it is in charge of these programs. He opined that if the government is truly running these efforts, and producers know that, they might be less likely to vote for them in the future.
