In 2016, the Ranchers-Cattlemen Action Legal Fund (R-CALF) challenged the beef checkoff program, claiming it violated the First Amendment by compelling producers to subsidize private speech through funding of Qualified State Beef Councils’ (QSBCs) promotional activities. While the litigation made its way through the courts, the USDA began to enter into memoranda of understanding (MOUs) with QSBCs, granting the USDA pre-approval authority over “any and all promotion, advertising, research, and consumer information plans and projects.”

In 2018, the Ninth Circuit affirmed R-CALF’s request for a preliminary injunction to prevent a QSBC from using the checkoff to fund advertising campaigns. On remand, the District of Montana found that the recently executed MOUs effectively controlled the QSBCs advertising and therefore constituted government speech immune from First Amendment scrutiny. R-CALF v. Perdue, 449 F.Supp.3d 944 (D. Mont. 2020). R-CALF appealed.

If speech is “effectively controlled” by the government, it is government speech not subject to First Amendment scrutiny. Johanns v. Livestock Marketing Ass’n, 544 U.S. 550, 559-60 (2005). In this case, R-CALF asserted that the advertising generated by hired third parties constituted private speech. The Ninth Circuit disagreed and held that the MOUs gave the USDA the authority to control the content of the advertising by requiring pre-approval of any and all advertising or contracts entered into by the QSCBs. Under the MOUs, the USDA had final authority over the promotional campaign as it may decertify a noncompliant QSCB. Thus, the court affirmed that promotional activities subject to pre-approval are government speech.

R-CALF v. Vilsack, 2021 WL 3161201 (9th Cir. July 27, 2021).