A lawsuit challenging state beef council promotions has been rejected by the 9th U.S. Circuit Court of Appeals.

SALEM — Promotions funded by state beef councils aren’t an unlawful form of compelled speech, even if third parties are paid to produce the advertisements, according to a federal appeals court.

The 9th U.S. Circuit Court of Appeals has determined that such promotions are government speech, not private speech that’s forcibly subsidized in violation of the U.S. Constitution’s First Amendment.

While people can’t be required to subsidize private speech, the government’s own speech isn’t subject to this prohibition because it’s “subject to democratic accountability” through the political process.

The Ranchers-Cattlemen Action Legal Fund, or R-CALF, challenged the legality of promotions issued by state beef councils, which are partly funded by “checkoff” dollars collected from ranchers.

R-CALF claimed that state beef councils support advertising that’s contrary to the interests of independent beef producers and isn’t protected as “government speech,” since it doesn’t reflect the government’s actual views and is often created by third parties.

The 9th Circuit has now rejected that argument, upholding an earlier ruling that concluded state beef council promotions are ultimately under the authority of USDA — even when third parties develop the advertisements without preapproval from the agency.

Promotions that are preapproved by USDA and explained in budgets submitted to the agency effectively receive “final approval authority” from the federal government, so they’re “therefore plainly government speech,” according to the 9th Circuit.

Even third-party promotions that aren’t subject to preapproval are “effectively controlled” by USDA because Congress envisioned that industry nonprofits would implement promotions under the beef checkoff program, the ruling said.

Federal regulations still require third-party promotions to “strengthen the beef industry’s position in the marketplace” without mentioning brands or trade names, using deceptive practices or influencing government policies, the ruling said. The USDA also reviews state beef council expenses and can participate in their board meetings.

Though R-CALF claimed such “safeguards are insufficient,” the deciding factor is that the government has the “ability to control speech, even when it declined to do so,” the 9th Circuit said. The USDA can “decertify” state beef councils from using checkoff dollars if it disagrees with how those funds are spent, providing “unquestioned control” over that money.

According to case law, the USDA does not need to “write the copy of the beef advertisements” to make such promotions government speech, the ruling said.