Court Rules on Attribution Claim in Check-Off Case

January 26, 2007 | Roger McEowen

In 2005, the U.S. Supreme Court upheld the beef check-off against a constitutional challenge on the basis that the check-off constituted government speech.  However, Justice Thomas, in his concurring opinion, noted that the government may not associate individuals or organizations involuntarily with speech by attributing an unwanted message to them whether or not those individuals fund the speech and whether or not the message is under the government’s control.   

A freedom of association claim was made in a case involving a challenge to the Avocado Act.  In Avocados Plus, Inc., et al. v. Johanns, 421 F. Supp. 2d 45 (D. D.C. 2006), the court held that there was no relevant distinction between the Beef Act and the Avocado Act.  Thus, the plaintiffs’ facial freedom of speech claims failed as did the plaintiffs’ freedom of association claim because the Avocado Act did not require the plaintiff to associate with any entity apart from the government.  However, the court held that the plaintiffs’ complaint did raise sufficient questions concerning “as-applied” attribution despite the generic nature of the promotions.  Accordingly, the court denied summary judgment to the defendant on that issue.  On review of the attribution issue, the plaintiffs submitted an internet survey that demonstrated consumers attributed the advertising to the plaintiffs.  But, the court upheld the mandatory assessments utilized for generic avocado advertising because the advertising did not mention specifically the plaintiffs, and the survey was not reliable to demonstrate that consumers associated the ads with the plaintiffs.  Avocados Plus, Inc. v. Johanns, No. 02-1798, 2007 U.S. Dist. LEXIS 4572 (Jan. 23, 2007).