Johanns v. Livestock Marketing Association-government speech: it's what's for dinner!

In United Foods, the Court struck down "the materially identical mushroom promotion program" as violative of the First Amendment. (49) With this decision in its favor, Livestock Marketing Association then amended and broadened its complaint to allege that the Beef Act and Beef Order violated the First Amendment by requiring all cattle producers and cattle importers to pay an assessment to fund generic advertising. (50) After a two day bench trial, the District Court for the District of South Dakota concluded that the Beef Act and Beef Order unconstitutionally compelled the respondents to subsidize speech to which they objected. (51) The court also rejected the governments claim that the checkoff should survive First Amendment scrutiny simply because it only funds government speech. (52) The district court also concluded that the generic advertising was not government speech because the advertising was funded by the checkoff rather than by general tax revenue. (53) The court held, in the alternative, that even if the expression at issue was government speech, that alone would not preclude First Amendment scrutiny in the area of compelled speech. (54) Furthermore, the district court surmised that the USDA only has "ministerial oversight" over the Beef Board and that the Board is composed of private individuals. (55) The court believed both of these factors weighed against allowing the government to label the advertisements as government speech. (56) In coming to its conclusion, the district court did not apply the intermediate scrutiny analysis as set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission (57) because the court believed such an analysis is applicable only to restrictions on commercial speech and not to the compelled funding of speech. (58) The court also held that the Beef Act could not be sustained as being "germane to a broader regulatory scheme." (59) In determining that United Foods controlled, the district court concluded that "the principal object of the beef checkoff program is the commercial speech itself." (60) A declaratory judgment finding the Beef Act and Beef Order unconstitutional was entered and the Beef Board was enjoined from collecting any further assessments. (61)

The government appealed and the Eighth Circuit Court of Appeals affirmed. (62) Before affirming the lower court, the Eighth Circuit undertook an independent review of the record and agreed with all material findings of fact. (63) The Eighth Circuit did not dispute whether the generic advertising was government speech, but rather it held that the "government speech status is relevant only to First Amendment challenges to the speechs content, not to challenges to its compelled funding." (64) The court of appeals further "held that Central Hudsons intermediate scrutiny standard provides the appropriate framework for assessing the constitutionality of such compelled funding." (65) Finally, the Eighth Circuit agreed that "the Beef Act is, in all material respects, identical to the Mushroom Act at issue in United Foods, and that its principal object is speech itself[;]" therefore, the Beef Act was again deemed to be unconstitutional. (66)