Johanns v. Livestock Marketing Association

PETITIONER: Mike Johanns, Secretary of Agriculture, et al.
RESPONDENT: Livestock Marketing Association; Nebraska Cattlemen, Inc. v. Livestock Marketing Association
LOCATION: Old Farm Village Apartments

DOCKET NO.: 03-1164
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 544 US 550 (2005)
GRANTED: May 24, 2004
ARGUED: Dec 08, 2004
DECIDED: May 23, 2005

Barry Richard - for the State of Florida, Department of Citrus, as amicus curiae
Edwin S. Kneedler - argued the cause for Petitioners in 10-1164
Gregory G. Garre - argued the cause for Petitioners in 03-1165
Hank B. Campbell - for the State of Florida, Department of Citrus, as amicus curiae
Laurence H. Tribe - argued the cause for Respondents
Monterey Campbell - for the State of Florida, Department of Citrus, as amicus curiae

Facts of the case

The Beef Promotion and Research Act (1985) required cattle producers to pay a fee for generic beef advertisements done on behalf of the cattle industry. Some cattle producers disagreed with the advertisements. The Livestock Marketing Association sued the Department of Agriculture (USDA) in federal district court and alleged a government-required fee for advertising with which some cattle producers disagreed violated their First Amendment right to free speech. The USDA argued the advertising was government speech immune from First Amendment challenge. Another group of cattle producers, the Nebraska Cattlemen, sided with the USDA and sued the Livestock Marketing Association. The two cases were consolidated. The district court and the Eighth Circuit Court of Appeals ruled the program violated the First Amendment and that the advertising was compelled and not government speech.


Does the Beef Promotion and Research Act of 1985 (Beef Act) violate the First Amendment by requiring cattle producers to pay to fund advertising with which they disagree?

Media for Johanns v. Livestock Marketing Association

Audio Transcription for Oral Argument - December 08, 2004 in Johanns v. Livestock Marketing Association

Audio Transcription for Opinion Announcement - May 23, 2005 in Johanns v. Livestock Marketing Association

William H. Rehnquist:

The opinion of the Court in Johanns versus Livestock Marketing Association will be announced by Justice Scalia.

Antonin Scalia:

This case is here on writ of certiorari to the United States Court of Appeals for the Eighth Circuit.

It involves a challenge to the Federal Program of generic advertising for beef, popularly known as the "Beef, It's What's for Dinner" campaign.

Pursuant to a federal statute, the United States Department of Agriculture imposes a $1 per head assessment or a checkoff on all cattle sold in or imported to this country.

The money is used to fund a number of beef related activities including research, consumer education, and the marketing programs at issue here.

The Cattlemen’s Beef Promotion and Research Board, an entity whose members are nominated by state beef councils and appointed by the Secretary of Agriculture, proposes the marketing campaigns which the Agriculture Department itself vets and approves.

Many of the advertisements funded by the checkoff contain a tag line stating that they are “funded by America’s beef producers.”

The respondents here are several cattlemen who paid the checkoff and two organizations whose members pay the check off.

They object to being compelled to fund the beef advertising for various reasons.

For example, some of them complained that the ads promote beef in general rather than their own particular specialty such as grain-fed beef or certified Angus beef.

The District Court agreed with the respondent’s contention that the ads violate the First Amendment by forcing beef producers to pay for speech with which they disagree, and it held unenforceable, the statute and the regulations creating the beef board and imposing the check off.

The Court of Appeals affirmed that order and the injunction.

In an opinion filed today with the Clerk, we vacate the judgment of the Court of Appeals and hold that the First Amendment does not facially invalidate the checkoff.

Prior cases decided by this Court have held unconstitutional compelled subsidies and speech, including a federally mandated checkoff similar to the one here which funded generic advertising for mushrooms.

Each of these cases was decided, however, on the understanding that the plaintiffs were being forced to subsidize private speech.

We have consistently respected the principle that compelled support of government is fundamentally different from compelled support of a private association.

As every taxpayer knows, all governments fund their operations including operations that involve speech by the government through compulsory exaction even when their citizens object to the programs for which the tax is paid.

The respondents contend that the beef advertisements are not the usual form of government speech because they are designed by the Beef Board and its operating committee, some of whose member are appointed by a private organization.

We think this distinction is not persuasive because the Federal Government exercises effective control over the content.

Congress has specified the general message, federal statutes and regulations set out specific elements and officials of the Agriculture Department exercise approval authority over every word used in every promotional campaign.

The First Amendment analysis is not changed by the fact that this government speech is funded through a targeted assessment on cattle sales.

Citizens have no First Amendment right to resist funding government speech whether the government garners the funds through general taxes or through more narrowly focused assessments.

Although the targeted assessment means that the ads are, as the tagline states, funded by America’s beef producers.

Respondents have not presented any evidence that this attribution would cause people who view the ads to think that the message is actually endorsed by particular beef producers such as the respondents.

We, therefore, do not consider whether the beef advertisements violate the First Amendment by effectively speaking in respondent’s name.

We conclude only that the beef checkoff is not facially invalid under the First Amendment.

The respondent’s complaint included several other grounds for challenging the checkoff program which the lower courts have not yet considered.

Respondents may now proceed on these other claims.

For these reasons and others stated in our opinion, we vacate the judgment of the Eight Circuit and remand for further proceedings not inconsistent with this opinion.

Justices Thomas and Breyer have filed concurring opinions; Justice Ginsburg has filed an opinion concurring in the judgment; Justice Kennedy has filed a dissenting opinion, and Justice Souter has filed a dissenting opinion in which Justices Stevens and Kennedy have joined.