Supreme Court Denies Beef Refunds

May 28, 2005

The Supreme Court has decided (5 to 4) that the "check off" fee assessed against the importation or sale of beef cattle is not unconstitutionally compelled private speech. As a result, it appears unlikely that beef importers will be able to secure refunds of the fees via litigation in the Court of International Trade or elsewhere.  Justice Scalia's opinion finds that the fee is used to fund government speech in support of the beef industry. As a result, it is unlike cases involving fees compelling speech on behalf of private interests. Consequently, the fees do not violate the First Amendment.  This is despite earlier decisions finding, for example, that similar fees on mushrooms are unconstitutionally compelled speech.  Thus, each program must be reviewed individually to determine the level of governmental control over the speech.  The more the speech appears to be on behalf of or at the direction of the government, the less likely it is to be considered unconstitutional.