A number of farm products are promoted through the use of congressionally authorizedgeneric promotion programs. (1) To fund these programs, the authorizing statutes (and orders)require that an assessment be collected based on the amount of product that a covered party sells,produces, or imports. Some producers have opposed the use of, or message in, genericadvertisements and have brought First Amendment challenges in court, three of which the SupremeCourt has decided. The Supreme Court's first two attempts at addressing First Amendment challenges tocheck-off programs -- California fruits and mushrooms, respectively -- resulted in contrastingopinions and some confusion for lower courts. Subsequent circuit court decisions for the beef, pork,and dairy check-off programs, for example, have all seemed to struggle with determining theapplicable level of scrutiny to apply to the programs. Nonetheless, in each case the appellate courtsrejected the government's argument that the check-off programs were "government speech" immunefrom First Amendment scrutiny and found the programs to unconstitutionally compel speech (orcompel the subsidy for the support of some type of speech). In May 2005, the Supreme Court issued its third opinion in eight years regarding theconstitutionality of a check-off program (beef). In Johanns v. Livestock Marketing Association , (2) the Supreme Court upheld thecheck-off program on "government speech" grounds -- a legal theory not addressed by the SupremeCourt in the earlier check-off cases. This ruling is likely to have far-reaching effects for check-offprograms. For example, it has already been used to vacate the circuit court decisions mentionedabove and will undoubtedly be used to defend other check-off programs from First Amendmentchallenges. The decision may also serve to inform and encourage future legislation creating oramending such programs. This report begins with a brief introduction on check-off programs and then describes theapplicable First Amendment principles argued in many of the check-off cases. Next is an analysisof the first two challenges that reached the Supreme Court, as well as a brief discussion ofsubsequent appellate court decisions. This report concludes with a discussion of Johanns v.Livestock Marketing Association and its possible implications for check-off programs. Congress has provided for the generic promotion of farm products since the 1930s. (3) These programs -- commonlyknown as "check-off" programs -- are requested, administered, and funded by the industriesthemselves, and, in part, operate under promotion and research orders or agreements issued by theSecretary of Agriculture. General oversight of these programs is provided by the U.S. Departmentof Agriculture's (USDA) Agricultural Marketing Service; however, there is still some debate as toactually how much control and responsibility the USDA has over the check-off programs. Farmproduct check-off programs are designed to strengthen the position of each respective commodityin the marketplace by increasing domestic demand and consumption and by expanding foreignmarkets. Typically, the statutory language authorizing a check-off program calls on the Secretary ofAgriculture to appoint a board (e.g., National Dairy Promotion and Research Board), council (e.g.,Mushroom Council) or other type of representative body, based on nominations made by theproducers, to pursue the statute's goals. To fund the programs, the authorizing statutes and orderscall on the board or council to collect an assessment based on the amount of product that a coveredparty sells, produces, or imports. The collected funds may finance a variety of programs, includingadvertising, consumer education, nutrition, production, marketing research, and new product andforeign market development. In some cases, large percentages of the collected funds are used toimplement generic promotions and advertisements. (4) The Secretary of Agriculture must approve each promotional projector plan before it can be implemented. (5) The First Amendment to the Constitution provides that "Congress shall make no law ...abridging the freedom of speech, or of the press...." (6) In general, the First Amendment prohibits the government fromregulating private speech based on its content and may prevent the government from compellingindividuals to express certain views (7) or to pay subsidies for speech to which they object. (8) However, the right to speakor refrain from speaking is not absolute. Courts, for example, look at the context and purpose of thespeech and allow greater government regulation for some types of speech than others. In consideringchallenges to check-off programs, courts have generally looked to the "commercial speech,""compelled speech," and "government speech" doctrines that have been developed under FirstAmendment jurisprudence. Commercial Speech. Commercial speech isspeech that "proposes a commercial transaction" (9) or relates "solely to the economic interests of the speaker and itsaudience." (10) Thegovernment may regulate commercial speech, even truthful expressions, more than it may regulatefully protected speech, and it also may ban false or misleading commercial speech, or advertisementsthat promote an illegal product. Courts typically use a four-prong test that was articulated by the Supreme Court in CentralHudson Gas & Electric Corp. v. Public Service Commission of New York to determine whether agovernmental regulation of commercial speech is constitutional. (11) The Central Hudson testasks (1) whether the commercial speech at issue is protected by the First Amendment (that is,whether it concerns a lawful activity and is not misleading) and (2) whether the assertedgovernmental interest in restricting it is substantial. "If both inquiries yield positive answers," thento be constitutional the restriction must (3) "directly advance the governmental interest asserted," and(4) be "not more extensive than is necessary to serve that interest." (12) Determining whether thespeech in question is "commercial speech" is important because it allows a court to apply the moreflexible intermediate scrutiny test of Central Hudson . As discussed below, courts have oftenstruggled with placing check-off programs solely within the parameters of "commercial speech." Compelled Speech. The First Amendment hasbeen interpreted to prevent the government from compelling individuals to express certain views orto pay subsidies for certain speech to which they object. Agricultural check-off cases havetraditionally been analyzed within this category or some modification of it. Initially, courts looked to the Supreme Court cases of Abood v. Detroit Board ofEducation (13) and Kellerv. State Bar of California (14) when analyzing check-off programs under the principles ofcompelled speech or subsidies. In Abood , non-union employees objected to paying a "service fee"equal to union dues because the fees subsidized economic, political, professional, scientific, andreligious activities not related to the union's collective bargaining agreement. The Supreme Courtheld that the union could constitutionally finance ideological activities that were not germane to theunion's collective bargaining but only with funds provided by non-objecting employees. (15) Since collectivebargaining was the authorized purpose of the union, and the union's political activities were notgermane to that purpose according to the Court, employees who disagreed with the political activitiescould not be compelled to support them. Similarly, in Keller , the Supreme Court held that the StateBar of California could constitutionally fund activities germane to its goals of regulating the legalprofession out of the mandatory dues of all members, but could not use compulsory dues foractivities of an ideological nature that fell outside of activities germane to the Bar's goals. (16) From these two cases, courts have fashioned a "germaneness" test for "compelled speech"or more particularly, "compelled subsidy" cases. (17) Under this test, courts are called on to "draw a line" betweenthose activities that are germane to a broader and legitimate government purpose and those that arenot -- a test both the Abood and Keller courts acknowledged would be difficult to apply. Government Speech. Generally, courts have"permitted the government to regulate the content of what is or is not expressed when thegovernment is the speaker or when the government enlists private entities to convey its ownmessage." (18) So longas the government bases its actions on legitimate goals, the government may speak despite citizendisagreement with the content of the message. Indeed, the government, with some exceptionspertaining to religion, may deliver a content-oriented message. "When the government speaks, forinstance to promote its own policies or to advance a particular idea, it is, in the end, accountable tothe electorate and the political process for its advocacy. If the citizenry objects, newly electedofficials later could espouse some different or contrary position." (19) In analyzing whether the "government speech" doctrine applies, courts typically consider thegovernment's responsibility for, and control over, the speech in question. The more control thegovernment exerts, the more likely it will be determined to be the speaker. Although there seemsto be some debate as to the scope of the "government speech" doctrine, (20) its effect is still broad, inthat it can provide immunity to First Amendment scrutiny. Over the years, a number of parties assessed under check-off programs have claimed that themandatory assessments are unconstitutional restraints on their right to free speech. Generally,opponents argue that they should not be required to pay for advertisements with which they disagree. For example, in a challenge against the dairy check-off program, the claimants were traditional dairyfarmers that did not use the genetically engineered and controversial "recombinant Bovine GrowthHormone." Consequently, they objected to subsidizing generic advertisements that they feltconveyed a message that milk is a fungible product that bears no distinction based on where and howit is produced.