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NEW YORK — If first amendment law keeps to its present course, you may soon see an end to the ads that say, “Beef. It’s what’s for dinner!” Also possibly doomed are government-sponsored campaigns to promote other agricultural products. The significance of the trend isn’t limited to field and farm. Some First Amendment scholars are concerned about the impact that cases about agricultural marketing programs may have on other areas of the law. On July 8, the Eighth Circuit U.S. Court of Appeals declared unconstitutional the Beef Promotion and Research Act of 1985, commonly called the Beef Act, because it mandates that all beef producers contribute money to an advertising campaign with which some of them take issue. Livestock Marketing Association v. U.S. Department of Agriculture, 02-2769. That outcome was not completely unexpected. The U.S. Supreme Court struck down a similar mushroom promotion campaign in 2001. U.S. v. United Foods Inc., 533 U.S. 405. The Eighth Circuit decision is noteworthy because it marks the first time that a circuit court has considered the “government speech” doctrine in this context. In United Foods, the Supreme Court hinted that the doctrine might save the bacon of the agricultural marketing programs. But the doctrine didn’t fare well at the Eighth Circuit. It suggested that the beef campaign, though made possible by federal legislation and supervised by the U.S. Department of Agriculture, was not government speech. It added that even if the program was government speech, the USDA would still have to prove that its interests outweighed those of producers who oppose being compelled to contribute to objectionable speech. Under the Beef Act, a national Cattlemen’s Beef Promotion and Research Board collects a fee or “check-off” of $1 per head of cattle on domestic and imported beef. Some of that money goes toward agricultural and nutritional research. The lion’s share, the Eighth Circuit said, funded the board’s ad campaign. Ronald Ward, a University of Florida economist hired by the board to evaluate its advertising, said in an interview that every $1 spent on the advertising campaign brings the industry an estimated $6 in revenue. He acknowledged that some domestic producers object to the board’s campaign because it does not distinguish between foreign and domestic beef. But he said that their concern is exaggerated: “Under 5 percent of beef on the domestic market is imported.” Ward said some agricultural groups, such as the cut flowers industry, have studied voluntary alternatives to mandatory assessments. “But beef is pretty substitutable,” he said. “It’s homogenous among all producers. And it would be very hard to do a voluntary program because of free riders,” a reference to producers who would be tempted to benefit from generic advertising without paying their share of the costs. John McBride, director of information for the Livestock Marketing Association, the beef board’s lead opponent in the Eighth Circuit case, said that the board’s advertising hasn’t translated into a higher per-head price for cattle on the livestock markets. He said the marketing association’s members, primarily beef marketers, were largely supportive of the beef program when it started 17 years ago. They grew tired of the lack of results and the expense of collecting the fees from ranchers, as they are required to do by law. McBride was dismissive of Ward’s conclusions. “Dr. Ward never studied a check-off program that he didn’t think benefited the industry,” he said. What troubles First Amendment scholar Howard Wasserman of the Florida International University College of Law were the Eighth Circuit’s comments on government speech. He said Supreme Court precedents generally “recognize that the government must participate in public debates and that it has to tax in order to do that.” It’s accepted that the government may spend tax money to communicate — even a message that is offensive to some taxpayers, Wasserman said. That’s why it surprises him that the Eighth Circuit “said that the government had to have a good reason to collect money for its own expression,” he said. “The decision could have broad implications, but the brake on that is that individual taxpayers have been held not to have standing to challenge the use of tax dollars except in establishment clause cases,” Wasserman said. “You will see challenges to programs designed to support industry using money from the industry itself.” Professor Vikram Amar of Hastings College of the Law said the agriculture cases raise questions that will arise in other contexts. For instance, when the government speaks in a forum that it operates, must it accommodate other messages, such as religious views, or can it speak as it wants? Must voucher programs support religious schools or can governments draw a line? Also unanswered, Amar said, is how broad the tax base for a program must be before officials can cease to worry about objections from those who pay for it. Amar puts some of the blame on ambiguities in the Supreme Court’s jurisprudence. For instance, he said, “I don’t think the courts have figured out how to reconcile United Foods and Glickman.” In Glickman v. Wileman Brothers & Elliott, 521 U.S. 457 (1997), the Supreme Court upheld a program that compelled nectarine, plum and peach growers to contribute to a promotional program authorized by the Agricultural Marketing Agreement Act of 1937. The decisive factor was that the advertising aspect of the program was only a small part of a broad regulatory scheme. Dale Stern, a partner at Sacramento’s Kahn, Soares & Conway, which represents 19 California agricultural marketing counsel, said the courts have tended to uphold programs rooted in the 1937 act (as in Glickman) while rejecting programs that have their own separate legislative authorization (as in United Fruit and the beef cases). Gary Young is a reporter for The National Law Journal , a Recorder affiliate based in New York City.

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