Next on Supreme Court menu: beef and free speech

Blame it on chicken. Blame it on fish.

For years, beef was considered the bad boy of American cuisine. Rising health concerns about red meat and soaring prices in the 1980s plunged the beef industry into crisis.

The problem got so bad that in 1985, Congress passed the Beef Act - a law aimed at improving the image of steaks, burgers, and even pot roast. The centerpiece of the effort was a generic advertisement: "Beef: It's What's for Dinner."

The ad helped turn things around. Since 1998, beef consumption in the US has risen 20 percent, according to one academic study. But now questions have emerged about how Congress chose to fund the well-known beef advertisements.

An industry organization, the Livestock Marketing Association, and a group of ranchers are challenging the constitutionality of the Beef Act - saying it forces some beef producers to pay for advertising that they do not support.

Wednesday, their "beef" arrives at the US Supreme Court where the justices must decide whether the generic advertising violates First Amendment protections against coerced speech and coerced association. If the Beef Act is struck down, analysts say, similar challenges by disaffected milk and pork producers could imperil the "Got Milk?" and "The Other White Meat" campaigns.

Under 15 such promotional programs, industry members are required by law to pay an assessment to fund generic advertising and other government-backed efforts aimed at benefiting an entire industry. The Beef Act requires payment of $1 for each head of cattle sold.

Some ranchers oppose the ads because they do not distinguish between higher-quality grain-fed US beef and grass-fed beef from abroad. They say American ranchers should not be forced to pay for ads that help foreign competitors, even though importers also pay the $1-per-head fee.

On the other side of the case are outgoing Agriculture Secretary Ann Veneman and ranchers and beef industry groups that support the Beef Act. They argue that the ads are a form of government speech, immune from First Amendment challenge.

"The First Amendment does not give citizens - including beef producers - the right to avoid federal assessments simply because they disagree with the way in which those assessments are spent," says Gregory Garre, a Washington, D.C., lawyer in his brief on behalf of Nebraska Cattlemen Inc.

Laurence Tribe, a Harvard Law professor representing Beef Act challengers, says government involvement in the promotional effort does not reduce the unconstitutionally coercive aspects of the measure.

"Compulsion to support a government message is the very essence of what the First Amendment forbids," he writes in his brief to the court.

The Supreme Court last confronted the constitutionality of so-called checkoff farm promotion programs in 1997 and 2001. In 1997, the high court in a 5-to-4 decision upheld a generic marketing program related to California peaches, nectarines, and plums. The justices ruled that objections by some farmers to the ads were not enough to outweigh the majority of producers and lawmakers who saw the ads as benefiting the entire industry.

But then in 2001, the high court overturned the checkoff program promoting mushrooms. In a 6-to-3 decision, the court ruled that the mushroom program was primarily about commercial speech, whereas the tree-fruit case in California involved a broader, more extensive regulatory process. The tree-fruit ads were only part of that industry's effort, while the mushroom advertising was the bulk of that campaign.

With both of these cases in mind, Beef Act supporters are emphasizing that promotion is only part of the effort funded by the law. It also supports nutrition and food safety research. Opponents say the Beef Act is primarily about First Amendment-protected activities like advertising and marketing.

Monte Reese is the chief operating officer of the Cattlemen's Beef Board, which directs the Beef Act campaign. He says the beef industry consists of a large number of relatively small producers, with average herd size of about 30 head of cattle.

"By joining together they can achieve the effectiveness that few would be able to achieve individually," Mr. Reese says. While many factors helped contribute to the rebound in beef demand since 1998, he says there is no way it could have happened without the beef checkoff program.

John McBride of the Livestock Marketing Association acknowledges that the beef program has done some good, but he stresses that the ends don't justify the means.

"The fundamental issue is that beef producers are being forced under federal law to support a program they don't agree with," Mr. McBride says. "This is not government speech. This is not a government-directed speech program. This is financed by producers, it is run by producers. There are no taxpayer dollars involved at all."

Reese disagrees: "The cattle producers have the right to go to Congress and ask for a program to benefit their industry and to compel everyone who benefits from that program to pay their share."

Rather than fighting one another, beef producers should unite, he says. "Why do we want to position beef against beef? Isn't the industry better served if we position beef against other protein sources?" Reese asks.

Those other protein sources? Chicken and fish.

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