Over the years, the federal government and state governments have passed laws authorizing producers of various agricultural commodities to assess and collect mandatory fees in order to pay for the generic advertising of their products. These programs are commonly called “checkoffs,” referring to a bookkeeping mechanism indicating the regular payment of fees in order to support an obligation such as union dues. The advertising created and paid for with these fees has featured some of the most memorable commercial messages of our time. Through marketing funded by producer checkoffs, we have been reassured that cotton is “the fabric of our lives,” taught that pork is “the other white meat,” encouraged to “behold the power of cheese,” and asked to confirm that we have, indeed, “got milk” in our refrigerators. The popular Claymation commercial featuring the California Raisins singing “Heard it through the grapevine” was created by the California Raisin Advisory Board. In Louisiana, the Department of Wildlife and Fisheries secured the enactment of an industry checkoff for alligator products. For all we know, here in South Dakota there may be buffalo, pheasant, and coyote checkoffs in the works.
Most everyone is familiar with advertisements promoting cattle consumption in American households with the imperative that “beef” is “what’s for dinner.” These commercials and others like it are funded by the beef checkoff, a mandatory one dollar fee assessed every time that a cow is sold in the United States. An equivalent fee is assessed on the importation of foreign beef and deposited into the same fund. Until the beef checkoff litigation, it is safe to say that virtually no one – including the cattle producers that selected and paid for the advertising – would have imagined that these messages were the speech of the United States government. The very suggestion probably would have offended most cattle producers.
In Johanns v. Livestock Marketing Association however, the Supreme Court held that generic advertising funded by targeted assessments on beef producers was “government speech” that is not susceptible to a First Amendment challenge by those who objected to being compelled to subsidize messages with which they disagreed. The decision effectively ended legal struggles by producers of various commodities seeking to invalidate checkoff programs that have collected billions of dollars over the years.
This article is not intended to reargue the Johanns decision. Rather, I seek here simply to provide some historical context and, along the way, tell the story of how an attorney in Sioux Falls, South Dakota, less than three years removed from law school, found himself involved in this fascinating and high-stakes litigation that would eventually ascend to the highest court in the land.
The Fruit of the Tree
In 1997, the Supreme Court considered a challenge brought by growers, handlers, and processors of California tree fruits to assessments that they were required to pay for the generic advertising of nectarines, plums, and peaches. These assessments were imposed by the Secretary of Agriculture pursuant to marketing orders promulgated under the Agricultural Marketing Agreement Act of 1937. These marketing orders were a form of comprehensive economic regulation that displaced competition and governed the marketing conditions for California tree fruits to such an extent that they amounted to virtual collectivization.
The group of California tree fruit producers who brought suit contended that their First Amendment rights to be free from compelled speech were violated by a requirement imposed under the marketing orders to collectively fund generic advertising to which they objected. It is generally acknowledged that while the government can speak for itself, or even retain others for the purpose of communicating messages funded with government revenue, it may not compel private individuals or groups to subscribe to or advance speech favored by others or favored by the government. The unconstitutional compulsion of speech involves some state action that demands support from private individuals for speech with which they disagree. Such activity is fundamentally inconsistent with the freedom of belief that lies at the core of all First Amendment guarantees.
In Glickman v. Wileman Brothers & Elliott, Inc., the Supreme Court upheld the constitutionality of these mandatory assessments imposed against California tree fruit producers. In an opinion authored by Justice Stevens, the Court rejected the First Amendment challenge and held that the assessments were justified because they were ancillary to a more comprehensive regulatory program that already severely restricted the producers’ autonomy. Justice Souter dissented, joined by Chief Justice Rehnquist, Justice Scalia, and Justice Thomas. The dissenters would have held that the forced subsidies at issue amounted to compelled speech that violated the First Amendment.
Unlike the California tree fruit marketing order, most existing commodity promotion programs or “checkoffs” are not imposed as part of any broader collectivization scheme. Rather, generic advertising is itself the primary purpose of the act that imposes the assessments. In light of the Glickman decision, opponents of these programs among producers of various agricultural commodities perceived an opening and began to recalibrate their strategies.
The Beef Checkoff
The cattle production industry is not characterized by collective action. Rather, it is characterized by a free market and governed by the independent choices of almost one million individual farmers and ranchers and the cyclical laws of supply and demand. Legislative history indicates that the beef checkoff was originally enacted as a “self-help” program for the beef industry, enabling it to marshal its own resources and “devise its own strategies” to increase beef sales while avoiding the intrusiveness of government regulation and unpopular government handouts. Under the Beef Promotion and Research Act, producers and importers of beef are required to pay assessments equivalent to one dollar per head of cattle each time that a cow is sold. Originally, these assessments were voluntary. But like most government programs and the universe itself, once called into existence it began to irreversibly expand. In 1985, Congress extended the original Act and made its assessments mandatory.
The Beef Act establishes a byzantine, multi-tiered procedure utilizing existing state and national beef industry organizations to finance and implement a program of promotion and research designed to stimulate the market for beef. The Beef Act neither authorizes nor permits any funding from the United States government. Instead, its activities are financed entirely by mandatory assessments on all cattle producers and beef importers equivalent to one dollar per head on each sale of cattle or imported beef in the United States. The Beef Act authorizes the Secretary of Agriculture to issue a Beef Promotion and Research Order proposed by a certified beef industry organization or other interested person and to establish a Cattlemen’s Beef Board for its administration. These activities were originally authorized in 1987 by a majority of cattle producers voting in a referendum.
The Cattlemen’s Beef Board is an independent organization made up of 111 individual domestic cattle producers and importers of foreign beef who direct and administer beef checkoff funds. Beef Board members are not government officials, but rather are beef industry volunteers nominated by existing private beef industry organizations from various states and approved in slate fashion by the Secretary. The Beef Board is charged with administering the Beef Order. All promotion and other activities, expenses, and staff of the Beef Board are funded entirely by mandatory assessments and involve no appropriated government or taxpayer funds. The Beef Board has a Chief Executive Officer and issues annual reports to its cattle producer “investors.”
The principal object of the Beef Act is speech itself and, more specifically, speech about the bountiful wonders of beef. The Beef Board’s activities to promote and advertise beef are selected and developed by the Beef Promotion Operating Committee. By law, the Operating Committee serves as an independent body, reviewing projects submitted by industry members and determining which projects will receive checkoff funding. Checkoff programs selected by the Operating Committee become effective upon approval of the budget by the Beef Board and the Secretary. The Operating Committee is composed of ten members elected by the Beef Board from its own membership and ten producers “elected by a federation that includes as members the qualified State beef councils.”
That “federation” is, in actuality, the checkoff division of the National Cattlemen’s Beef Association. The NCBA is a private trade and political lobbying association of cattle producers that has enjoyed a virtual monopoly on the Beef Board’s contracts for implementing and carrying out the activities authorized by the Act. Only about 33,000 of approximately one million cattle producers who pay the beef checkoff belong to the NCBA. The NCBA was created as the result of a merger when the National Cattlemen’s Association absorbed the pre-existing federation of state beef councils described in the Act so that the beef industry could speak with “one voice.”
Pursuant to the Beef Act, the United States Department of Agriculture conducts general oversight of the program and ratification of producer-selected expenditures to ensure compliance with statutory provisions. The USDA is not permitted to spend government funds for this ministerial oversight. All such expenses are reimbursed by private checkoff funds as required by the Act. The government does not initiate, create, devise, fund, or implement any of the checkoff promotion or other activities. All proposals for messages to be disseminated with checkoff dollars are formulated by private beef industry contractors. Neither the USDA nor the government has any power to select messages or spend checkoff dollars – all such decisions are made by cattle producers themselves. Although these fully formulated checkoff projects typically “become effective on approval of the Secretary,” such approval is usually pro forma and implementation of projects frequently begins prior to such approval.
Because both beef importers and United States cattle producers are required to pay, checkoff-funded projects do not make any distinction between United States beef and imported beef. While United States beef can be specifically promoted in foreign countries where it is widely acknowledged as the best beef in the world, use of checkoff dollars to specifically promote United States beef domestically is forbidden – only the generic product “beef” can be promoted with checkoff dollars in the United States.
Cattle producers are empowered to terminate their checkoff program by referendum. In order to hold a referendum, at least ten percent of cattle producers are required to sign a referendum petition. When the Secretary of Agriculture responds by scheduling a referendum, the Beef Act permits producers to terminate their program by a simple majority vote. Upon termination, they receive refunds of all unspent checkoff revenues.
In the late 1990s, cattle prices were so low that many producers found themselves paying the dollar per head assessment on livestock sold at prices that did not even cover the cost of production. Many producers were also dissatisfied with the messages funded with their checkoff dollars because, rather than promote “United States beef” to consumers as they wished to do, the Beef Act required domestic and foreign beef to be promoted as a single, indistinguishable generic commodity. These producers began circulating petitions seeking a referendum on the continuation of the checkoff.
A Phonecall from Washington D.C.
Occasionally, I have been asked to speak to law students about the experience of participating in a case that ended up in the United States Supreme Court. One of the first questions invariably asked is how my firm came to be involved. The answer is not particularly surprising. The phone rang. As you may have surmised, the subject of the call was United States beef.
The Livestock Marketing Association is an association of livestock markets, principally auctions, whose members are required by law to collect and remit tens of millions of dollars in “beef checkoff” assessments every year. In 1998, LMA took a leading role in assisting cattle producers in collecting the signatures necessary to compel a checkoff referendum. In response to this petition drive, the Beef Board significantly increased expenditures on “producer communications” consisting of messages seemingly designed to discourage cattle producers from supporting a referendum. Despite this campaign, LMA submitted more than 145,000 petition signatures from producers calling for a referendum. After receiving these petitions, however, the Secretary of Agriculture did not act to schedule the required vote. Whether or not it was so, this inaction was perceived by many opposed to the checkoff as a purposeful attempt to thwart or delay a referendum for as long as possible until cattle prices rose, frustrations with checkoff assessments eased, and producers would be less likely to terminate the program.
After waiting for more than a year, a group of organizations and individual producers led by LMA decided to bring an action challenging the Secretary’s delay and the procedures being used to “validate” petition signatures. These plaintiffs also sought to challenge the Beef Board’s use of checkoff funds on “producer communications” designed to discourage producers from exercising their petition rights. As it turned out, a greater percentage of cattle producers in South Dakota had signed petitions calling for a referendum than in any other state. As a result, it was decided for symbolic reasons that the action should be brought in South Dakota.
That is when the phone at our law firm rang. LMA had long been represented by Phillip C. Olsson, founding partner of the law firm of Olsson, Frank & Weeda, P.C. in Washington D.C. In order to file a federal action in South Dakota, LMA needed local counsel to assist in the representation. Olsson contacted Scott N. Heidepriem, one of two founding partners at Johnson, Heidepriem & Abdallah LLP. As luck would have it, Scott asked if I would assist in helping to file the action. Ryan W. Stroschein, a South Dakota native and associate at Phil’s firm in D.C., was also in on the case.
In addition to LMA, the named plaintiffs in the action were the Western Organization of Resource Councils, an association of grassroots organizations dedicated to supporting family farms, and several individual producers raising cattle sold on the free market at local livestock auctions in South Dakota and Montana. As I can readily attest, these cattle producers strongly disagreed with the “one voice” approach to the industry promoted by the NCBA. To the marrow of their bones, they believed in the superiority of the grain-fed, United States beef that they raised, which they knew to be more tender, tastier, healthier, and of a higher quality than imported foreign beef that tended to come from grass-fed animals raised using inferior methods. These producers were in favor of requiring beef sold in our supermarkets and restaurants to be labeled according to its country of origin. And they believed that if any national promotion was to be funded by cattle producers, it should expressly market their United States beef as a superior product to the exclusion of all other beef, so that a specific demand for “U.S. beef” could be cultivated among American consumers.
LMA I: The injunction
On December 29, 2000, a complaint was filed in United States District Court in Aberdeen, South Dakota. The case was assigned to the Honorable Charles B. Kornmann, a seasoned federal judge who lived in Aberdeen and presided in the Northern and Central Divisions of the District of South Dakota. In conjunction with the complaint, we filed a motion for a preliminary injunction asking the district court, among other things, to order the Secretary of Agriculture to schedule a referendum election on continuation of the beef checkoff and to cease the use of checkoff funds for the purpose of trying to persuade cattle producers to support its continuation.
Judge Kornmann scheduled a hearing on the motion almost immediately. In the dead of a cold South Dakota winter, Phil Olsson flew from Washington into Sioux Falls. He and Scott Heidepriem then made the three-hour trek north on I-29 to participate in a spirited hearing in Aberdeen. The government was represented at the proceeding by Ori Lev, a bright and determined attorney in the Civil Division of the United States Department of Justice. Ori would later be joined in defending the Beef Act by a new colleague at the Department of Justice, Carolyn McKee.
On February 23, 2001, Judge Kornmann issued his decision granting a preliminary injunction that barred the use of beef checkoff funds to promote the checkoff and oppose cattle producers’ efforts to secure a referendum. Following issuance of this injunction, the parties initiated discovery in preparation for trial of the referendum issues. As part of this process, Judge Kornmann also permitted a group of Nebraska cattle producers to intervene in support of the checkoff. These producers were represented by South Dakota lawyers Jeff Cole and Gregory Brewers, as well as David S. Day, a distinguished professor at the University of South Dakota School of Law, where not long before I had been numbered among the students in his constitutional law classes. To kick off discovery, Scott and I flew to Washington D.C., where we joined Phil and Ryan in deposing various officials at the USDA and PricewaterhouseCoopers LLP, the firm retained by the USDA to “validate” the petition signatures submitted in support of a referendum.
On a Tuesday morning, less than two months after Judge Kornmann issued his preliminary injunction, Laurence H. Tribe rose from his chair and stood at the lectern to begin his thirtieth argument before the United States Supreme Court. On this particular morning, he was representing United Foods, Inc., a corporation that processed and marketed vegetables, including mushrooms, on its claim challenging assessments imposed by the Mushroom Promotion, Research, and Consumer Information Act to fund generic advertisements promoting mushrooms. Barbara B. McDowell, Assistant to the Solicitor General, defended the statute on behalf of the United States. United Foods objected to paying for generic mushroom advertising because the company preferred instead to advertise the superiority of its own particular brand of mushrooms. And unlike the California tree fruit marketing order at issue in Glickman, mushroom producers such as United Foods were not part of any broader collective system imposed by the government. Instead, the main purpose of the mushroom act was simply the generic promotion of mushrooms.
After the mushroom checkoff was invalidated by the lower courts as unconstitutional compelled speech, the government advanced a new theory in its Supreme Court briefing to try to salvage the program. This theory was that the mushroom checkoff was immune from compelled speech analysis because the challenged mushroom advertising was not the collective speech of the producers who designed and paid for it, but rather the speech of the United States government that enacted the law permitting the mandatory assessments. Although not raised in the lower courts, this new theory nonetheless consumed a substantial portion of the arguments before the Justices:
Mr. Tribe: ...The message is composed by these private individuals in the Mushroom Council. The members of the Mushroom Council are selected by nomination from the private industry. … I think the idea that the Mushroom Council is somehow the voice of America is not plausible. It’s not plausible because this is not a message that the Government has in any way organized or composed, and if one did take that view –
Question: Suppose there were some sort of a disclaimer or an affirmation, I suppose it would be, this message is required and permitted by a Governmental program and Governmental regulations.
Mr. Tribe: The fact that it is permitted by Government does not mean that it is the Government’s voice. A great deal is permitted by the Government. If it is required, if the exact words are required, the words on a cigarette package, the surgeon general has determined that this is detrimental to your health. That’s Government speech.
Professor Tribe proceeded to highlight the constitutional dangers of permitting the government to select a message and then target a specific group of individuals who are required by law to pay for and carry that message without identifying it as that of the government. “In fact,” he warned, “the magic wand of Government speech would obliterate a great deal of the doctrine this Court has carefully built.”
A little over two months later, the Supreme Court issued United States v. United Foods, Inc. In the opinion authored by Justice Kennedy, the Court held that mandatory assessments pursuant to the mushroom checkoff, a program essentially identical to the beef checkoff, violated the First Amendment by compelling objecting producers to support speech in the form of generic advertising with which they disagreed. Justice Breyer dissented, joined by Justice Ginsburg and Justice O’Connor, contending that the compelled subsidies at issue did not violate the First Amendment.
Because it had not been raised in the lower courts, the Supreme Court declined to address the government speech defense at that time. But there was no mistake that United Foods was a looming nuclear device threatening to detonate and obliterate dozens of similar commodity promotion programs. In response to the Supreme Court’s decision, the USDA appeared to adopt a strategy of pretending that the case was never decided, continuing to promulgate new marketing orders virtually identical to the program held unconstitutional in United Foods. All of this created a cloud of uncertainty that would hang over these programs until the issue was resolved.
It would not take terribly long.
LMA II: The death penalty
When United Foods issued, the parties in our South Dakota litigation had just arrived in Denver to depose members of the Cattlemen’s Beef Board. Phil, Ryan, and I were there on behalf of the plaintiffs. Ori Lev and Carolyn McKee had flown in on behalf of the United States. Jeff Cole and Greg Brewers were representing the interveners. Prior to United Foods, the Supreme Court had never identified the contours of potential government speech immunity nor had it ever applied the concept as a justification for violating First Amendment rights. At the close of his majority opinion, Justice Kennedy mentioned that the validity of the government speech defense as belatedly urged in that case raised what might be “difficult points” for the government, such as whether the Secretary of Agriculture’s approval of messages funded by the mushroom checkoff constituted true editorial control or was merely pro forma. At the close of each deposition, after covering the topics related to the referendum issues, we thus dramatically proceeded to take out the United Foods decision, hot off the presses, and cross-examine the Beef Board officials on that question and anything else we thought might ultimately be deemed relevant to the government speech defense that was now certain to be asserted in our case.
After wrapping in Denver, we flew to Pierre, South Dakota, where the government’s attorneys deposed the cattle producers who were the plaintiffs in our case. Shortly thereafter, we reached a preliminary understanding that our plaintiffs would be permitted to amend their complaint to bring a full-fledged First Amendment challenge to the beef checkoff so that the government speech defense could be litigated and resolved. The parties agreed to an expedited briefing schedule and filed competing motions for summary judgment. Almost as soon as they were filed, Judge Kornmann denied the motions and set the matter for trial.
On January 14, 2002, a court trial on the constitutionality of the beef checkoff commenced at the federal courthouse in Aberdeen. All of the attorneys, parties, and witnesses stayed at the Ramkota Inn. It was fairly close quarters. Fortunately, by that time we were all on friendly terms, even considering the unusual circumstances and elevated stakes. The conference rooms in which the opposing sides were preparing for trial were next to each other and we spoke in hushed voices so that our top-secret strategies could not be overheard. So that we did not have to venture out into the cold, we shared our meals at Minerva’s, a popular South Dakota restaurant adjoined to the hotel. As one might imagine, with our various clients sitting at the tables, all of the attorneys dutifully ordered beef served on beef wrapped in beef – with a side of beef – for breakfast, lunch, and dinner.
At trial, our producers testified to their sincere objections to the general content of the generic promotion they were compelled to support through the Beef Act. As producers of United States cattle, they wanted to convey the message that United States beef was superior to foreign beef. They objected that their mandatory assessments were used to disseminate a contrary message, one that promoted beef as a generic commodity and made no distinction between United States beef and imported beef. Scott’s direct examination of Patrick Goggins, a courtly and distinguished cattleman from Billings, Montana, captured the premise of our case:
Question: Would you describe to the court why you object?
Mr. Goggins: Well, when you – the trend we’re on of promoting, for instance, “Beef, it’s what’s for dinner,” a good ad, except that beef is a generic term. And the more you promote beef consumption here in the United States the more you create demand for foreign beef.
… For instance, I run a lot of cows. I’m a breeder of livestock. And I have been for 50 years. And I’ve been a member of NCBA. They used to be ANCA, and then NCA, and then NCBA. But I’ve been and still am a member. And I’m one of many who resent, very much resent the idea that we in the United States, superb beef, are not allowed to see our national organization promote United States beef to United States people. Why do we use checkoff dollars to promote United States beef to Japan and to other foreign nations? We don’t go over there and say eat some beef. No, no. We go over there and say eat fine U.S. beef. This does not happen in the United States.
So the more we promote the generic beef, I’m compelled, as a payer of the dollar checkoff, I’m compelled by law to promote and pay for the promotion of foreign product. And it is an inferior product if it is not blended, especially the ground product. What makes it good is the blend they use from the trim of the fed carcass. That makes a wonderful luscious sandwich. But I’m paying for it, and I resent that.
Pat and all of our plaintiff producers believed that generic beef promotion had actually worked to increase beef importation, supplanting domestic production and thereby suppressing market prices obtained by United States producers. They had concluded that by being required by the government to pay for the generic promotion of beef, rather than only United States beef as they desired, they were actually being compelled to subsidize their own economic demise. In addition to cattle producers, the other primary witnesses at trial were Monte Reese, Chief Executive Officer for the Cattlemen’s Beef Board, and Barry Carpenter, Deputy Administrator of the Livestock and Feed Program in the Agricultural Marketing Service of the USDA.
After the close of evidence, as final arguments were set to commence, the courtroom began to fill with interested spectators. Cowboy boot heels were clicking against and scuffing the hardwood floor. A dozen or so Stetsons and feed caps were quickly removed as Judge Kornmann emerged from his chambers and ascended to the bench.
I was privileged to make the initial closing argument for the plaintiffs. Ori Lev then presented closing argument on behalf of the federal defendants. Jeff Cole and Professor Day spoke on behalf of the intervenors. Finally, Scott Heidepriem presented our rebuttal. Veteran reporter Scott Waltman covered the trial for the Aberdeen American News. At the close of his article headlined, “Local Cattlemen Air Their Beefs,” Waltman wrote that Judge Kornmann’s decision “probably won’t be final. Said Kornmann, ‘this case is obviously going to the Court of Appeals and perhaps, ultimately, to the Supreme Court.’”
On June 21, 2002, Judge Kornmann issued his memorandum opinion and order rejecting the government’s claim that the beef checkoff was constitutionally immune “government speech” and held that the Beef Act violated the First Amendment pursuant to United Foods. The order further entered an injunction requiring the immediate cessation of any further collection of checkoff assessments. If the decision was to stand, the beef checkoff was no more. Although the order was stayed pending appeal, the clock for the checkoff was counting down.
The Eighth Circuit
On March 10, 2003, the parties appeared for oral argument before the U.S. Court of Appeals for the Eighth Circuit in St. Paul. The case had been assigned to Chief Judge James B. Loken of Minnesota, Judge Theodore McMillian of Missouri, and Judge George G. Fagg of Iowa. By that time, there had been some changes in the teams of attorneys. Phil, Scott, Ryan, and I were still there representing the plaintiffs, with Phil presenting our appellate argument. For the defendants, the Justice Department’s Appellate Division had stepped in with Douglas N. Letter and Matthew M. Collette taking the reins. The intervenors brought in some fresh horses as well. John G. Roberts, Jr. (who has since gone on to bigger and better things) and his colleague Lorane F. Hebert of Hogan & Hartson LLP in Washington D.C. had been retained. After the argument, I introduced myself and briefly spoke with Roberts, unaware that I was shaking hands with the next Chief Justice of the United States Supreme Court.
On July 8, 2003, in a unanimous opinion authored by Judge McMillian, the Eighth Circuit affirmed Judge Kornmann’s order declaring the Beef Act unconstitutional. In October, the government’s petitions for rehearing and rehearing en banc were denied. The past was now officially prologue. There was one more round to go.
In February of 2004, Solicitor General Theodore B. Olson, Deputy Paul D. Clement, and their team filed a petition for a writ of certiorari with the Supreme Court. The question presented was:
Whether the Beef Promotion and Research Act of 1985 (Beef Act), 7 U.S.C. 2901 et seq., and the implementing Beef Promotion and Research Order (Beef Order), 7 C.F.R. Part 1260, violate the First Amendment insofar as they require cattle producers to pay assessments to fund generic advertising with which they disagree.
Although we were fairly certain that the petition would be granted, Phil and I set to work on a brief in opposition, which we filed on April 19, 2004.
Truly, the wind was at our backs. Ours was not the only case in which commodity producers had been challenging the constitutionality of a checkoff program. Throughout the litigation, we had been in communication with St. Paul attorneys Susan E. Stokes and David R. Moeller, who were representing a state organization of pork producers bringing a similar claim against the pork checkoff. In Michigan Pork Producers Ass’n, Inc. v. Veneman, Susan and David persuaded the Sixth Circuit to follow the Eighth Circuit’s lead and hold that promotional activities funded through the Pork Promotion, Research and Consumer Information Act of 1985 amounted to the unconstitutional compulsion of private expression, rather than government speech. As the Sixth Circuit panel unanimously explained, “the costs and content of the speech in question are almost completely the responsibility of members of the pork industry. The First Amendment does not lie dormant merely because the government acts to consolidate and facilitate speech that is otherwise wholly private.”
Next, in Pelts & Skins, LLC v. Landreneau, the Fifth Circuit held that compelled assessments paid by objecting producers to the state-enacted Louisiana Alligator Resource Fund were unconstitutional, declaring that “the generic marketing at issue is not government speech, but government facilitation of the private speech of fur and alligator harvesters.” As articulated by that unanimous panel:
We are not dealing with a program funded from general revenues by broadly applicable taxes. Nor are we dealing with a governmental message crafted, controlled, and expressed by an agency designed to represent state government. Rather, in this case we confront a program in which the government uses its authority to exact fees from private individuals, then facilitates the use of those fees to express a message designed to benefit private commercial interests. This sort of program is not government speech.
By that time, the Third Circuit, as well, had twice held that generic commodity promotion programs were not government speech. In United States v. Frame, an older decision turning away a First Amendment challenge to the beef checkoff, it nonetheless had rejected a claim that the Beef Act was government speech because, among other factors, it was funded solely by the beef industry and its promotional messages were attributed to cattle producers. Now, in Cochran v. Veneman, issued after the Eighth Circuit’s decision in our case, the Third Circuit reaffirmed its earlier conclusion that generic commodity promotion was not government speech when it invalidated the Dairy Promotion Stabilization Act of 1983 in light of United Foods.
Thus, by the time that our case reached the Supreme Court, five separate circuit court decisions had addressed the precise government speech argument at issue and it had been soundly rejected in each of those cases without a single dissenting vote. The kingdom, in other words, seemed secure. “Every beast of the forest is mine,” I must have confidently mused at the time, “and the cattle on a thousand hills.”
The Supreme Court
Once the government’s certiorari petition was granted, it was agreed that Laurence Tribe, author of the United Foods victory, should argue the case. Phil and I traveled to Harvard to confirm the details and make it so. Professor Tribe’s team included Thomas Goldstein, Amy Howe, and Sonja Starr of Goldstein & Howe, P.C. Briefing began in earnest. Phil, Scott, and I were able to contribute to the collaborative effort led by Professor Tribe. Amicus briefs of every color of the rainbow began appearing with the morning mail. It was an exhilarating process. Suspense was beginning to build.
On the eve of argument, we held a final practice round in a conference room at the Hay-Adams Hotel in the Capitol. On December 8, 2004, four years to the day after the telephone first rang at our law firm regarding the case, I woke without an alarm. I put on a dark suit and grey tie, had a glass of orange juice, crossed over the threshold of the hotel door, stepped into a waiting cab, and instructed the driver: “Take me to the United States Supreme Court.”
Professor Tribe, Tom, Phil, and I appeared at counsel’s table for the respondents. Scott and Ryan were there as well, as was Nancy Robinson, Vice President for Government and Industry Affairs for the LMA, who had been with us every step of the way from the genesis of the case. Before the session began, we were ushered into the attorney’s lounge by William K. Suter, the nineteenth Clerk of the Supreme Court. He was exceedingly gracious. In the lounge, Professor Tribe was chatting with Carter Phillips, veteran of seventy-six Supreme Court arguments (more than any attorney in private practice), and constitutional law icon Erwin Chemerinsky. Phillips and Dean Chemerinsky were on opposite sides of Muehler v. Mena, a Fourth Amendment case that was also set for argument that day. For a still-green lawyer from Sioux Falls, South Dakota, it was all quite surreal.
At the appointed time, we walked into the courtroom. Before sitting down at the respondents’ table, I stood for awhile trying to take in the splendor of the room and preserve the moment in memory. On each side, giant white marble columns ascended like redwoods to a great vaulted ceiling. The décor was majestically ordered in dark oak, red velvet, and gold. Most impressive was the bench at which the Justices would soon take their places. For some reason, I had expected it to be far removed and looming high above the attorneys. Actually, it was very close to the tables and appeared to be only moderately higher in elevation. It also seemed to curve ever so slightly around the lectern, creating an intimate setting for the argument that was about to begin.
Without any apparent signal, the quiet chatter in the room suddenly hushed. We were instructed to rise. Eight black-robed individuals solemnly entered. Four Justices took their seats on each side of the bench. In the middle remained a single empty chair. Chief Justice Rehnquist was then gravely ill and, though he fully participated in the decision, could not attend the argument. Justice Ginsburg was seated almost directly in front of me. She looked right at me with a warm and strangely reassuring smile. A feeling of calmness, like a sea without a wind, washed over my senses.
The argument commenced. Deputy Solicitor General Edwin S. Kneedler, veteran of more than one hundred Supreme Court arguments, took the podium for the government. Next, Professor Tribe rose to deliver his thirty-fifth Supreme Court argument. By that time, John Roberts had been confirmed as a Circuit Judge for the U.S. Court of Appeals for the District of Columbia Circuit and so the intervenors’ argument instead was presented by his Hogan & Hartson colleague, Gregory G. Garre, who would himself later become the Solicitor General. Questioning was intense. From my inexperienced vantage, all performed spectacularly. Time passed very quickly. The experience truly seemed as though it was over before it had begun.
After the case was submitted, we grabbed our white quills from the table and strolled out of the courtroom, passing through the massive Greek columns into the brilliant light of a sunny December day. I became aware of a sense of reverent finality that took me by surprise, as we slowly descended the vast marble steps that I had seen in books and on television newscasts since I was but a child.
Ask not for whom the bell tolls. It tolls for me. On May 23, 2005, the Supreme Court rendered its judgment upon the dominating focus of my working existence for more than four years. In Johanns v. Livestock Marketing Association, the Justices rescued the beef checkoff from the oblivion to which I had methodically helped to commit it, upon the basis that generic advertising funded by targeted assessments on beef producers is “government speech” that is not susceptible to a First Amendment compelled-subsidy challenge. Justice Scalia authored the majority decision. In the end, although there was not full agreement on the rationale, a coalition of six Justices apparently had no qualms about dashing my carefully nurtured hope for an immortal jurisprudential triumph upon the jagged, still nebulous rocks of the newly minted doctrine known as government speech. Taking pity on my injured soul, Justice Souter, Justice Kennedy, and Justice Stevens issued a pair of dissenting opinions that I maintain to this day should be memorized and recited by every schoolchild in the land.
Though it ended in crushing defeat, the process of helping to shepherd a constitutional action from the drafting of the complaint to the United States Supreme Court was one of the most fruitful and gratifying experiences of my life. I came away from it with new and lasting friendships and a confirmed sense of true wonder and awe at the magnificence of our legal system and the individuals that we have entrusted to navigate its wheels.
And that, my friends, is a bountiful victory indeed.
© South Dakota Law Review; Ron Parsons 2012