On April 20, 2020, we blogged about the legal challenge to Montana’s requirement that sellers of cattle must contribute $1.00 per head to Montana’s Beef Council to fund advertisements for beef.  Many sellers would prefer to keep the money and spend it on their own forms of advertising.

As we explained in the previous post, the legitimacy of this requirement depends on whether the government has control over the content of the advertising.  If it does, courts treat the speech as the government’s and there is no First Amendment issue.  If government does not control the content of the advertising, the requirement constitutes compelled speech, which the First Amendment prohibits.

Like other Beef Councils, Montana’s sometimes asks third parties to prepare the content.  When there is a formal contract, the Secretary of Agriculture must pre-approve the contract and any advertising generated pursuant to its terms.  There is a consensus that this advertising is treated as government speech.  But Beef Councils sometimes also make non-contractual payments to those third parties and there is no statutory requirement for pre-approval for the resulting advertisements.

The District Court initially held the program unconstitutional and the Ninth Circuit affirmed.  During the pendency of the litigation, the Secretary entered into memoranda of understanding with Montana’s Beef Council and others.  The MOUs gave the Secretary pre-approval authority over all advertising generated by these third parties.  They also allowed the Secretary to review all expenditures made by the Beef Councils and to terminate Councils that did not comply with the Secretary’s instructions.

This time around, the District Court concluded that the advertising was government speech and hence legal.  The Ninth Circuit recently affirmed.  It held that the MOUs effectively gave the Secretary the ability to control the content of the advertising and that was sufficient control to constitute government speech.