First Amendment Beefs : Agricultural Checkoff Programs and Freedom of Speech

In the past fourteen years, the Supreme Court has ruled three separate times on the constitutionality of Federal Farm Promotion Programs under the First Amendment. The challenge has been that the programs, which fund generic advertisements such as “Got Milk?” and “Beef: It’s What’s For Dinner,” compel the subsidization of objectionable speech from private producers. The answers handed down from the Court have been conflicting, but each has contributed to the new, still-emerging “government speech doctrine.” In the most recent case, Johanns v. Livestock Marketing Association (2005), the Court ruled that the speech in question was completely governmental and therefore could receive no protection against the compelled subsidization of it. This research project seeks to explore the history of checkoff programs and the legal case history that led the Court to reach this conclusion. Furthermore, this paper asserts that the speech in question is not being classified in the proper way to afford it the scrutiny it deserves. First, the Court treats this speech as government speech when it is at least partially private. Second, the Court treats the speech as commercial speech when it is at least partly political. The findings that misclassifications are shaping the emerging government speech doctrine are concerning. The Court repeatedly fails to acknowledge that speech relating to the production of food is inherently political and thus deserves heightened scrutiny