In 2016, the Ranchers Cattlemen Legal Defense Fund (R-CALF) filed a complaint claiming the United States Department of Agriculture (USDA) was violating the First Amendment through advertising done by the Beef Promotion and Research Act (the federal Beef Checkoff). The lawsuit, filed in the Montana federal district court, specifically claimed that operation of the Beef Checkoff program was violating the free speech clause of the First Amendment by compelling cattle producers in Montana to pay for the speech of the Montana Beef Council, a private organization.
On August 9, 2018, the plaintiffs filed a motion to serve a supplemental pleading. This pleading requested to expand the scope of the requested relief to apply to thirteen additional state Beef Councils to prevent them from using Beef Checkoff funds “to fund  private speech.” On November 5, 2018, the Montana federal district court granted the motion. These additional states include Hawaii, Indiana, Kansas, Nebraska, Nevada, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Texas, Vermont, and Wisconsin. Texas, Nebraska, and Kansas are the top three beef producing states.
The Beef Promotion and Research Act of 1985 (the Act) was established to assist beef producers throughout the country in promoting beef consumption, both domestically and abroad. The Act achieves this goal through research, education, and marketing. The Act requires all cattle producers to pay $1 per head to help support the programs created by the Act. The fee, generally referred to as the beef checkoff, is primarily collected by state beef councils who retain a portion before sending the rest on to the Cattlemen’s Beef Promotion and Research Board.
The constitutionality of the federal government financing the promotion of agricultural products has been considered by the Supreme Court several times. In Johanns v. Livestock Mktg. Ass’n, the plaintiffs were two associations whose members collected and paid the Beef Checkoff program fee, as well as several farmers who were subject to the checkoff. Government speech is exempt from First Amendment scrutiny. Because the Beef Board was subject to federal oversight, the Supreme Court found the promotional messages by the Beef Board to be government speech and the Checkoff program constitutional.
The plaintiffs in the current case, R-CALF v. USDA, consist of cattle producers who are dues-paying members of R-CALF. The plaintiffs claim the state beef councils are private entities which are not subject to federal oversight and therefore not protected under the government speech doctrine. R-CALF claims that because the state councils are not subject to federal oversight, the councils are private actors and therefore compelling private speech with which they disagree. Specifically, the plaintiffs take issue with the Montana Beef Council’s advertising campaigns which promote both domestic and foreign beef. The plaintiffs only wish to promote domestic beef.
On June 21, 2017, the Montana district court granted the plaintiff’s motion for a preliminary injunction preventing the Montana Beef Council from using any funds from the Beef Checkoff program to fund advertising campaigns without consent of the payer. In April of 2018, the 9th Circuit Court of Appeals upheld the injunction. If producers wish for the money to go back to their state, they must fill out a consent form. Otherwise the entire amount will be sent to the Cattlemen’s Beef Board. The current injunction applies only to the Montana Beef Council’s ability to use the checkoff funds in advertising. However, that could change, given the new composition of the case.
We will keep you posted.
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