Opinion
No. 02-36140.
Argued and Submitted March 31, 2004.
Vacated May 27, 2004. Resubmitted and Filed June 16, 2005.
Kelly J. Varnes, Hendrickson, Everson, Noennig Woodward, P.C., Billings, Montana; Erik S. Jaffe, Erik S. Jaffe, P.C., Washington, D.C.; and Renee L. Giachino and Reid Alan Cox, Center for Individual Freedom, Alexandria, Virginia, for the plaintiffs-appellants.
Robert D. McCallum, Jr., Assistant Attorney General; William M. Mercer, United States Attorney; and Douglas N. Letter and Matthew M. Collette, Attorneys, Appellate Staff Civil Division, Washington, D.C., for the defendant-appellee.
Richard T. Rossier and Alex Menendez, McLeod, Watkinson Miller, Washington, D.C., for the defendant-intervenors-appellees.
Patricia D. Peterman and James A. Patten, Patten, Peterman, Bekkendahl Green, PLLC, Billings, Montana, for the plaintiff-intervenors-appellants.
Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CV-00-00198-RCB.
Before: CANBY, WARDLAW, and GOULD, Circuit Judges.
ORDER
This is a challenge to the constitutionality of the Beef Promotion and Research Act of 1985 ("the Act"), 7 U.S.C. §§ 2901- 11, and the Beef Promotion and Research Order promulgated thereunder, 7 C.F.R. §§ 1260.101-1260.640. The district court entered judgment in favor of the United States Department of Agriculture, holding that the speech at issue is government speech and thus the Act does not violate either the appellants' free speech or association rights. Charter v. USDA, 230 F.Supp.2d 1121 (D.Mont. 2002). We heard argument and submitted the appeal for decision on March 31, 2004. When the Supreme Court granted certiorari in Johanns v. Livestock Marketing Ass'n, ___ U.S. ___, 125 S.Ct. 2055, ___ L.Ed.2d ___ (2005), we vacated submission pending the outcome in Johanns because the parties here challenged the Act on grounds identical to those asserted in Johanns. We now order the appeal resubmitted for decision.
In Johanns, the Supreme Court, like the district court here, first held that the speech at issue is "from beginning to end the message established by the Federal Government," i.e., the Government's own speech. Id. at ___, 125 S.Ct. at 2061. Further, because the beef "checkoff" program promulgated under the Act funds the Government's own speech, the Court held that the Act is not susceptible to a facial First Amendment compelled-subsidy challenge. Id. at ___ _ ___, 125 S.Ct. at 2061-64. The Court nevertheless stated, without expressing a view on the point, that "if it were established . . . that individual beef advertisements were attributed to respondents," such facts might form the basis for an "as applied" challenge. Id. at ___, 125 S.Ct. 2064. The theory would be one of compelled speech, i.e., that because the speech is attributed to the individual respondents, the government unconstitutionally uses their endorsement to promote a message with which they do not agree. Id. Because the Johanns trial record was "altogether silent" on whether the individual respondents would be associated with speech labeled as coming from "America's Beef Producers," the Court held that "on the record before us an as-applied First Amendment challenge to the individual advertisements affords no basis on which to sustain the Eighth Circuit's judgment [in favor of respondents], even in part." Id.
Unlike in Johanns, the record in this case is not "altogether silent" on whether the individual appellants who are beef producers would be associated with the speech to which they object. For example, Jeanne Charter, one of the appellants, declared in an affidavit:
The checkoff [program] results in our being associated against our will with positions both political and economic, from the National Cattlemen's Beef Association (NCBA), the primary checkoff contractor. The NCBA routinely, before Congress, and in other public ways and in press announcements, states that it is the trade organization and marketing organization of America's one million cattle producers. We are not members of the NCBA, yet as cattle producers, we are associated with their messages. We are, likewise, associated with Montana Beef Council views endorsing highly processed beef products and disparaging natural beef as a waste of time. We believe such promotion devalues the product we raise.
In light of the Supreme Court's recognition (without expressing a view on the issue) that an attribution claim might form the basis for an as-applied First Amendment challenge to the Act, the district court's decision must be vacated and the case remanded for further proceedings to determine, among other things, whether speech was attributed to appellants and, if so, whether such attribution can and does support a claim that the Act is unconstitutional as applied. Id.; see also id. at ___ n, 125 S.Ct. at 2064 (Thomas, J., concurring) (noting that, pursuant to Federal Rule of Civil Procedure 15, "on remand respondents may be able to amend their complaint to assert an attribution claim").