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Many of you have heard the slogan, “Beef. It’s What’s for Dinner” in advertising to promote the use of beef in a healthy diet. But if you were a beef producer, would you consider this type of generic beef advertising a violation of your First Amendment rights? Would you want this generic advertising to promote American beef? Or beef produced in your home state?
A federal lawsuit touching on these issues has been progressing in a federal district court in Montana this year, and a federal magistrate judge recently recommended to the federal court to allow a challenge to the beef advertising to continue. Ranchers-Cattlemen Action Legal Fund (R-CALF) and United Stockgrowers of America brought the action against Secretary Vilsack and USDA.
The beef check-off program was created by the Beef Promotion and Research Act of 1985 (Act); the check-off pays for the generic advertising to promote beef. The Act allows qualified state beef councils to collect the beef check-off dollars. These qualifying state beef councils must agree to follow similar promotional activities as the federal Cattlemen’s Beef Production and Research Board (Board). In Montana, this group is the Montana Beef Council.
R-CALF and United Stockgrowers of America represent domestic cattle producers and disagree with the generic advertising. The plaintiffs, in this case, would like to see domestic beef promoted over foreign beef, something the generic advertising does not do. The plaintiffs claim that the advertising is compelled speech, violating their members' First Amendment rights.
USDA sought to dismiss the lawsuit for many reasons, the first challenge being that the plaintiffs did not have standing to bring the lawsuit. Standing is a requirement that the plaintiffs must be the right party to be bringing the suit, which means that party must have:
- Suffered an injury in fact
- An injury fairly traceable to the defendant(s), and
- Show likelihood that the relief requested will redress the injury.
USDA alleged 1) that the plaintiffs needed to include individual members of parties to the lawsuit to have standing, 2) the injury suffered was self-inflicted, and 3) that the method of relief would not redress the plaintiffs’ injuries.
The federal magistrate disagreed with USDA and found the plaintiffs had standing. The plaintiffs had included individual statements from members discussing being forced to fund the Montana Beef Council and promotional activities. The method of relief would redress these injuries. Plaintiffs were requesting an injunction to prevent members from being forced to pay check-off dollars to the Montana Beef Council until the court issued a ruling. The money would still go to the federal Board but not the state beef council while the injunction was in place.
The self-inflicted aspect of the injury deserves a discussion. One part of the Act allows a beef producer to send the entire portion of the check-off dollars to the federal Board and not the state beef council. To USDA, plaintiffs’ members could request their beef check-off dollars go to the federal Board; because the members had not done that here (more on why they had not later), the injury was self-inflicted. The magistrate disagreed because even if members had done so, they would still be forced to fund speech they might have opposed.
The federal magistrate also disagreed with USDA that the plaintiffs had failed to state a claim. USDA again argued the fact that the plaintiffs’ members could opt-out of money going to the state board and request the check-off dollars go to the federal Board remedying the First Amendment issues. The magistrate looked at prior Supreme Court decisions on the First Amendment and found the opt-out provisions were not enough to fix the First Amendment issues.
The federal magistrate also refused to grant USDA’s motion to stay until a rulemaking process was finalized, which would allow producers to direct the entire check-off amount to the federal Board. The problem was USDA had no timeframe to finalize the rulemaking process, and there were no guarantees the rulemaking process would moot the members’ concerns.
The plaintiffs also sought a motion for summary judgment, a judgment entered against the other party ruling on the case without going to trial. The federal magistrate found it would be inappropriate to grant summary judgment at this time for a number of reasons. The first issue was whether or not the Montana Beef Council’s advertising was government speech. If the Montana Beef Council was a private organization and the federal law forced producers to support this group, then the law violated the producers’ First Amendment rights. If the Montana Beef Council was a governmental organization, based on the level of control the federal Board had, then the producers did not have a First Amendment right not to fund government speech. Until the issue of government control could be resolved, granting summary judgment would be inappropriate.
The plaintiffs also sought a preliminary injunction to prevent the Montana Beef Council from collecting plaintiffs’ members’ check-off dollars. The federal magistrate agreed with the plaintiffs that a preliminary injunction was necessary. It was unlikely that USDA would be able to show enough control over the Montana Beef Council to qualify as government speech. The plaintiffs also claimed having suffered irreparable harm any time the check-off dollars were used on advertising.
What does this decision mean? The federal district court will now conduct an independent review of the federal magistrate’s recommendations. USDA will have 14 days to object or request an appeal. We will have to wait till the federal district court finishes reviewing the magistrate’s findings. At this point, it appears the magistrate doubts USDA can demonstrate the federal government has enough control over a state beef board to make the generic advertising government speech. If that is the case, the beef check-off program violates the First Amendment and Congress would have pass a new law or scrap the beef check-off program. A ruling against the beef check-off program would in turn lead to other commodity programs being found unconstitutional. At this point, until we have a court ruling, we are just waiting to see the true outcome of this case.
Ranchers-Cattlemen Action Legal Fund v. Vilsack, CV-16-41-GF-BMM-JTJ (D. Mont. Dec. 12, 2016).