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WASHINGTON — First with California tree fruit and then with mushrooms, the Supreme Court has struggled in recent years to decide whether it is constitutional for the federal government to require growers to fund programs that promote their products. On Wednesday, the court appeared no closer to nailing down the issue as it applies to ranchers when it heard arguments over the “Beef. It’s What’s for Dinner” promotion, which is funded by a dollar-a-head fee on cattle. Some ranchers think that the program violates their free-speech rights by compelling them to pay for speech they disagree with, or that it slights some segment of the industry — dairy cattle or free-range beef, for example. Justices seemed to resist the government’s new defense of the programs as “government speech” and therefore immune from First Amendment attack. The court has said that while the government may not censor private speech, it may decide without much interference what messages it wants to convey to the public. In past rulings on similar programs — upholding the fruit promotion program and striking down mushroom promotions — the court has never ruled whether such programs amount to government speech, instead basing its decisions on other grounds. Since the mushroom program was struck down in 2001, several lower courts have ruled against other promotional programs. At issue Wednesday was a 2003 ruling by the Eighth Circuit U.S. Court of Appeals that found the beef program to be identical “in all material respects” to the mushroom program. Even though the funding comes from cattle producers, Deputy Solicitor General Edwin Kneedler said, the promotional messages, as well as the research and marketing aspects of the beef program, are controlled completely by the secretary of agriculture. “These are programs of government speech,” said Kneedler. But several justices seemed deeply skeptical of that argument, mainly because the government does not label the pro-beef messages as government-sponsored. Justice Antonin Scalia asked pointedly, “Does it remain government speech” if it is not labeled as such? “The label isn’t accurate,” said Justice Anthony Kennedy. “The government seems to be hiding the ball,” said Justice David Souter. Gregory Garre of D.C’s Hogan & Hartson, who was defending the program on behalf of the beef industry, told the court that “the government isn’t hiding from this message,” noting that President Bush has urged the public to eat beef. Garre also asserted that the beef promotion is part of an overall government program that conducts research and public education on issues such as mad cow disease. The question of whether the government must identify itself as the speaker in order to claim that the beef program amounts to government speech took up an unusually large part of the hourlong argument. When Harvard Law School professor Laurence Tribe rose to argue against the program on behalf of the dissenting cattle ranchers, he made it clear he thought the issue was irrelevant. The First Amendment violation remains, no matter how the message is identified, Tribe said, because his clients are still being compelled to pay for a message with which they fundamentally disagree. More than once, Tribe, a veteran advocate before the court, conveyed impatience with the justices over how the arguments were proceeding. At one point, when he described the labeling issue as “an interesting digression,” Scalia sarcastically told Tribe, “Just indulge us. Some of us think it might make a difference.” Tribe did have a chance to tell the court why some of his client cattle ranchers object to the seemingly beneficial pro-beef messages. While beef sales have increased in recent years, Tribe said, small producers have not benefited. “When the price of beef goes up, the profit is pocketed by meatpackers and restaurants,” Tribe said. He also said that some ranchers who produce dairy cows, for example, view their product as cattle, not beef, and they object to paying for the promotion of beef. Tribe did acknowledge that if the assessment against beef producers were in the form of an excise tax that went into the general treasury — rather than a fee that went directly to the beef-promotion program — his First Amendment concerns would diminish. Justices seemed troubled by the implications of their ruling in the case on other marketing programs, as well as efforts to force the tobacco industry to pay for anti-smoking messages. Tribe said that cigarette makers could be compelled to carry the surgeon general’s anti-tobacco message on their packaging, but he did not appear to satisfy the justices on whether the industry could constitutionally be forced to pay for anti-smoking advertising if the court rules in favor of the dissenting beef producers. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C.

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