"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The First Amendment to the U.S. Constitution

The First Amendment protects freedom of speech, press, religion, assembly and petition. It may also protect a grower's right to refuse participation in a commodity checkoff program.

A Court of Appeals ruling in July declaring the beef checkoff program unconstitutional has left some wondering where that leaves similar grower-funded research and promotion efforts for other commodities.

In its ruling, the court said that making beef producers pay for a marketing message they may not agree with is a type of "government interference with private speech," and therefore, a violation of their First Amendment rights. The three-judge panel said the collection of checkoff fees from producers who do not support the program should stop.

The Cattlemen's Beef Promotion and Research Board disagrees and is expected to appeal the decision. Believing they will ultimately prevail, industry leaders says they expect that, if necessary, the ruling will continue to be appealed until it reaches the Supreme Court.

"The beef checkoff is absolutely critical to protecting the long-term marketing climate for beef," says Eric Davis, president of the National Cattlemen's Beef Association.

According to Gary Sharp, a beef producer from Bath, S.D., independent surveys of beef producers have shown support for the $1-per-head checkoff every year since the program's inception in 1986. "The court ruling thwarts the will of the majority in response to the complaints of a vocal minority," he says.

The courts have also declared checkoff programs for mushrooms and pork as unconstitutional, while a checkoff program for fruit trees was allowed to continue under a 1997 Supreme Court ruling.

Proponents contend that producer-funded checkoff programs are needed to fund advertising, education and research.

"It is unfortunate that this suit has been filed against a very successful industry self-help program," says Mark Lange, National Cotton Council President and CEO. "The cotton checkoff program has a remarkable record of increasing cotton consumption in the U.S. The value of the Cotton Research and Promotion Program to producers and those who import and sell cotton products is immeasurable. Since this program's inception, the U.S. cotton industry has supported its continuation."

From the soybean check-off perspective, Soybean Board Chairman David Durham says his organization is fully aware of the legal challenges both the beef checkoff and pork checkoff programs have had, and what they're continuing to going through.

Durham, a soybean producer in Hardin, Mo., says, "We feel confident the recent court ruling won't substantially change the soybean checkoff program. We already have built the checks and balances into our program that are some of the more contentious points in the beef and pork industries' legal battles."

One key difference between the beef checkoff program and the soybean checkoff program, Durham says, is a producer's ability to affect change.

Every five years, a mandatory referendum is held, and if at least 10 percent of soybean growers petition for it, growers are able to vote for or against continuation of the checkoff program.

In comparison, thousands of cattlemen petitioned USDA in 1999 requesting a referendum to decide the future of the beef checkoff program, but no such vote was ever held.

Durham says, "Producers can become dissatisfied with a program when they don't know exactly what that program is doing, and where their dollars are going. We spend a lot of money and time communicating to producers how their checkoff dollars are being spent, whether that money is being spent to open foreign markets or research production systems."

Twice a year, he says, the United Soybean Board polls producers to better understand their feelings about the checkoff program, and more specifically, where they want their checkoff dollars invested to insure their future profitability.

More times than not, the checkoff related issues being battled in the courts are not checkoff issues at all, but instead are a direct result of producers dissatisfied with policy issues, Durham contends.

"Policy issues are really outside of the realm of the checkoff program, but opponents may hope that if they stop the checkoff program they can change the stance their commodity leaders are taking on a certain issue," he says. "The United Soybean Board, however, has strict firewalls preventing us from working with policy issues. Our goals are simply to expand demand and reduce production costs for soybean producers."

Another issue affecting the beef and pork industries more so than the soybean industry is consolidation.

"Those industries are seeing tremendous structural shifts, and that consolidation has brought a lot of societal issues to the forefront, such as corporate versus non-corporate, and big versus little. These issues are playing a large role in producer dissatisfaction," Durham says. "We feel confident that our industry is not consolidated nearly as fast as those industries. And to make sure that's the case, we spend a considerable amount of time focusing on both the current state and the future direction of our industry. We want to position U.S. soybean producers in the best possible position to insure our ability to function as a profitable industry in the future."

e-mail: dmuzzi@primediabusiness.com