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The beef industry’s marketing program and its slogan “Beef: It’s What’s for Dinner” withstood a First Amendment challenge Monday, with the Supreme Court ruling that it amounts to government speech that the government can control. The 6-3 ruling marked the third time in eight years the high court has ruled on federal marketing programs that assess fees on producers. The Court upheld a fruit program and struck down a mushroom promotion and now has upheld the beef program. In each case, small groups of producers dissatisfied with the message or focus of the programs challenged them on the grounds that they are being forced by government to pay for speech with which they disagree. In the beef case, the Livestock Marketing Association and other groups objected to the fact that the promotional program did not tout the virtues of grain-fed beef that would distinguish American beef from imports. The U.S. Court of Appeals for the 8th Circuit struck down the program last year on First Amendment grounds. Fees from the beef program have amounted to more than $80 million a year and go toward scientific research as well as advertising. “There is a lot of litigation going on around the country on programs like this, and it’s been in disarray and on hold waiting for this decision,” said Randolph Moss of Wilmer Cutler Pickering Hale and Dorr. “This seems like a clean way to resolve most of it.” Moss represents California agricultural groups and national cotton-growers who defend government marketing programs. A case involving the promotion program “Pork: The Other White Meat” is already before the high court. Previously, the government defended the programs mainly as a valid form of government marketing regulations. But in the case of beef, the Bush administration took a new tack, arguing that even though beef producers subsidize it with a dollar-a-head fee on cattle, the resulting message or speech belongs to the government, not the beef industry. Generally, the Court has upheld the right of government agencies to control their own messages without much First Amendment scrutiny. “The message set out in the beef promotions is from beginning to end the message established by the federal government,” wrote Justice Antonin Scalia for the majority. “Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech.” Scalia also noted that while the program is supervised and developed by boards that include beef producers, the final promotional messages are approved by the secretary of agriculture. By classifying that as government speech, the majority sidestepped commercial speech issues that have made for more complicated rulings in past cases. But dissenting justices said the majority ruling is flawed, in part because the beef marketing program tends to mask its government sponsorship. The tag line on beef program commercials and advertisements is “Funded by America’s Beef Producers.” Justice David Souter in dissent said, “No one hearing a commercial for Pepsi or Levi’s thinks Uncle Sam is the man talking behind the curtain. Why would a person reading a beef ad think Uncle Sam was trying to make him eat more steak?” Without accurate identification of the source of the speech, Souter said, the government is not accountable. Also dissenting were Justices John Paul Stevens and Anthony Kennedy. Agriculture Secretary Mike Johanns applauded the decision in a statement issued Monday. “This is certainly a win for the many producers who recognize the power of pooled resources. As this administration has always contended, USDA regards such programs, when properly administered, as effective tools for market enhancement.” Johanns replaced Ann Veneman as the appellant in the case when he became agriculture secretary in January, so the decision is now known as Johanns v. Livestock Marketing Association. Lawyers representing the dissenting ranchers criticized the ruling as a setback for free speech in the face of corporate interests. “The First Amendment protects the right to dissent as much as the right to speak,” said Institute for Justice lawyer Steve Simpson in a statement. He filed a brief in the case on behalf of dairy farmers who object to the “Got Milk” milk promotion program. “Unfortunately, the Supreme Court has just made it a lot easier for government to compel support for the ‘party line’ in a particular industry, and drown out any dissent.” Tony Mauro can be contacted at [email protected]

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