Jay O'Brien, vice chairman of the Cattlemen's Beef Board, said that now that the organization's controversial Beef Checkoff program has been ruled constitutional by six justices of the Supreme Court, CBB "will work with all affected organizations to improve the Checkoff. The best way (the complainants) can address their concerns is to work with us." (See Supreme Court upholds Beef Checkoff, Meatingplace.com, May 23, 2005.)

In the majority's opinion, written by Associate Justice Antonin Scalia, the court held that the Checkoff was immune to "compelled-subsidy" and First Amendment attacks. "Because the Beef Checkoff funds the Government's own speech, it is not susceptible to a First Amendment compelled-subsidy challenge," the Court said. "Respondents argue that the speech here is not government speech because it is controlled by nongovernmental agencies, i.e., the Beef Board and Operating Committee. In fact, the message is effectively controlled by the Federal Government. Congress and the Secretary have set out the overarching message and have left the development of the remaining details to the Operating Committee, half of whose members are appointed by the Secretary and all of whom are subject to removal by the Secretary."

Associate Justice David Souter, writing in dissent, said, "Greater care is required to assure that the political process can practically respond to limit the compulsion Jefferson inveighed against." Government, he wrote, has "masked" its role in producing the advertising messages, and that many of the ads "include the tag line, 'Funded by America's Beef Producers,' which all but ensures that no one reading them will suspect that the message comes from the National Government."

Scalia, in his opinion, noted that the Court has protected the right of individuals to refuse to fund private speech with which they disagreed, but the Beef Checkoff consists of government speech, and support of such speech can be compelled. The decision, however, left the losers, mainly the Livestock Marketing Association, the option of objecting to the Checkoff on other than First Amendment grounds.

The LMA, however, said in a statement that while it was bitterly disappointed in the outcome, "we respect the legal system and the Court's deliberations in this case, and we reluctantly accept their decision and will move on from here." LMA President Randy Patterson called on CBB to give producers the right, through a national referendum, to decide which activities the Checkoff should fund or whether the Checkoff should be continued at all."

"We hope they will try to become more inclusive of differing views, and make sure that producers large and small, and from every sector, have a greater voice in Checkoff affairs," Patterson said.

Agriculture Secretary Mike Johanns, the object of the lawsuit, said in a statement, "This is certainly a win for the many producers who recognize the power of pooled resources. As this administration has always contended, USDA regards such programs, when properly administered, as effective tools for market enhancement."

O'Brien, for his part, noted that the Checkoff has accomplished a great deal in its 19-year history. Among the high points, he said, are the research that pointed out the necessity of beef in a healthy diet, development of convenient beef products that can be cooked in five minutes, identification of new muscles from the chuck and round that have both raised demand for beef some 25 percent in the last seven years and added $250 to the value of a head of cattle at slaughter. "All together, our activities have increased return on investment for cattlemen everywhere," he said.