Ranchers Can’t Beef About Generic Beef Ads

Those ranchers who had a beef about paying the government for generic advertising promoting beef had their First Amendment claims butchered by the Supreme Court.

In a 6-3 decision, the court said that promotions urging people to eat beef funded by a mandatory $1 a head tax on all cattle sold or imported into the United States was “governmental speech” exempt from First Amendment scrutiny.

The case was brought by several groups of cattlemen who objected to the $1 mandatory assessment and the advertising campaign best known for its slogan “Beef. It’s What’s for Dinner.” The cattlemen objected because the advertising was generic and did not distinguish between American ranchers’ grain-fed beef from grass-fed beef in imports. Both the trial court and the appellate courts declared the Beef Promotion and Research Act of 1985 unconstitutional because it required those objecting to contribute funds to speech to which they disagreed.

Justice Scalia, writing for the majority, found that the advertising campaign was authorized under the act passed by Congress that also set the $1 per head fee to pay for the advertising and other promotions of beef. Because of this congressional action, he determined that the advertisements were governmental speech. As a result, the cattlemen who opposed the campaign had no choice but to fund it since citizens “have no First Amendment right not to fund government speech.”

In a dissenting opinion, Justice Souter noted that the advertisements did not attribute the campaign to the government but rather to the “American Beef Producers” so that anyone hearing the advertising would not know that the government was behind it. “Why would a person reading a beef ad think Uncle Sam was trying to make him eat more steak? Given the circumstances, it is hard to see why anyone would suspect the Government was behind the message unless the message came out and said so.” Because of the failure to make the government accountable for the message, Justice Souter agreed with the Appellate Court that the Beef Act was unconstitutional. He said the speech could not be considered governmental speech unless the government “put that speech forward as its own.”

Johanns, Secretary of Agriculture et al. v. Livestock Marketing Association et al., No. 03-1164 (May 23, 2005).