The U.S. Court of Appeals for the Ninth Circuit upheld a district court’s summary judgement in favor of the beef checkoff. The lawsuit by R-CALF USA had challenged USDA Secretary Tom Vilsack and mandatory assessments on cattle sales to fund beef promotion. The Beef Promotion and Research Act of 1985 imposes a $1 assessment, or “checkoff,” on each head of cattle sold in the United States to fund beef consumption promotional activities. Intervenor defendants, the Montana Beef Council and other qualified state beef councils (QSBCs), receive a portion of the checkoff assessments to fund promotional activities and may direct a portion of these funds to third parties for the production of advertisements and other promotional materials. In 2016, the Secretary entered into memoranda of understanding (MOUs) with QSBCs which granted the Secretary pre-approval authority over all promotion and which allowed the Secretary to decertify a noncompliant QSBCs, thereby terminating its access to checkoff funds. Under the MOUs, the Secretary must pre-approve all contracts to third parties and any resulting plans or project. But QSBCs can also make noncontractual transfers of checkoff funds to third parties for promotional materials which do not need to be pre-approved. The plaintiff contended that the distribution of funds under these arrangements is an unconstitutional compelled subsidy of private speech. The panel held that the speech generated by the third parties for promotional materials was government speech and therefore exempt from First Amendment scrutiny.

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