       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2       Mich. Pork Producers Ass’n,             Nos. 02-2337/2338
    ELECTRONIC CITATION: 2003 FED App. 0373P (6th Cir.)            et al. v. Veneman, et al.
                File Name: 03a0373p.06

                                                            United States Department of      -
UNITED STATES COURT OF APPEALS                              Agriculture, et al.,             -
                                                                    Defendants-Appellees,    -
              FOR THE SIXTH CIRCUIT                                                          -
                _________________                                                            -
                                                            CAMPAIGN FOR FAMILY              -
                                                            FARMS, et al.,                   -
         No. 02-2337             X
                                  -                                 Intervenors-Appellees. -
MICHIGAN PORK PRODUCERS                                                                      -
ASSOCIATION , INC., et al.,       -
                                  -    Nos. 02-2337/2338                                    N
                     Plaintiffs, -                                Appeal from the United States District Court
                                   >                         for the Western District of Michigan at Grand Rapids.
                                  ,
           v.                     -                            No. 01-00034—Richard A. Enslen, District Judge.
                                  -
ANN M. VENEMAN, Secretary, -                                                   Argued: March 14, 2003
United States Department of       -
                                  -                                    Decided and Filed: October 22, 2003
Agriculture, et al.,
      Defendants-Appellants, -                              Before: COLE, GILMAN, and BRIGHT, Circuit Judges.*
                                  -
                                  -
CAMPAIGN FOR FAMILY               -                                              _________________
FARMS, an Unincorporated          -
                                  -                                                    COUNSEL
Association of Membership
Organizations,                    -                        ARGUED: Matthew M. Collette, UNITED STATES
                                  -                        DEPARTMENT OF JUSTICE, Washington, D.C., Susan E.
          Defendant-Appellee. -
                                                           Stokes, FARMERS LEGAL ACTION GROUP, INC., St.
                                  -                        Paul, Minnesota, for Defendants. Edward M. Mansfield,
         No. 02-2338              -                        BELIN LAMSON McCORMICK ZUMBACH FLYNN, Des
MICHIGAN PORK PRODUCERS           -                        Moines, Iowa, for Plaintiffs. ON BRIEF: Matthew M.
ASSOCIATION , INC., et al.,       -                        Collette, Douglas N. Letter, UNITED STATES
         Plaintiffs-Appellants, -                          DEPARTMENT OF JUSTICE, Washington, D.C., Susan E.
                                  -                        Stokes, David R. Moeller, FARMERS LEGAL ACTION
                                  -
           v.                     -
                                  -
                                                               *
ANN M. VENEMAN, Secretary, -                                    The Honorable Myron H. Bright, Senior Circuit Judge of the United
                                                           States Court of Appeals for the Eighth Circuit, sitting by designation.

                            1
Nos. 02-2337/2338         Mich. Pork Producers Ass’n,         3    4      Mich. Pork Producers Ass’n,         Nos. 02-2337/2338
                               et al. v. Veneman, et al.                  et al. v. Veneman, et al.

GROUP, INC., St. Paul, Minnesota, for Defendants. Edward           promotion under the Pork Act violates the First Amendment,
M. Mansfield, BELIN LAMSON McCORMICK ZUMBACH                       the injunction ordered by the district court is overly broad in
FLYNN, Des Moines, Iowa, Robert Charles Timmons,                   that it eliminates funding for programs that are constitutional.
BOYDEN, TIMMONS, DILLEY & HANEY, Grand Rapids,
Michigan, for Plaintiffs.                                            For the reasons stated below, we AFFIRM the grant of
                                                                   summary judgment by the district court.
                    _________________
                                                                                        I. BACKGROUND
                        OPINION
                    _________________                                As part of the Food Security Act of 1985, Congress enacted
                                                                   the Pork Act. The purpose of the Pork Act is to:
   R. GUY COLE, JR., Circuit Judge. Michigan Pork
Producers Association, Inc., et al. (“MPPA”) and the                   [A]uthorize the establishment of an orderly procedure for
Secretary of Agriculture (the “Secretary”) (collectively               financing, through adequate assessments, and carrying
“Appellants”) appeal the grant of summary judgment to                  out an effective and coordinated program of promotion,
Appellees Campaign for Family Farms, et al. (“CFF”). The               research, and consumer information designed to—
United States District Court for the Western District of               (A) strengthen the position of the pork industry in the
Michigan declared the Pork Promotion, Research and                     marketplace; and
Consumer Information Act (the “Pork Act”), 7 U.S.C. § 4801             (B) maintain, develop, and expand markets for pork and
et seq., and the Pork Promotion Order issued thereunder, 7             pork products.
C.F.R. § 1230, unconstitutional and issued an injunction
terminating all activities under the Pork Act and the Pork         7 U.S.C. § 4801(b)(1). The Pork Act provides for the creation
Promotion Order. The Act mandates that pork producers and          of a National Pork Producers Delegate Body (“Delegate
importers (collectively “pork producers”) pay assessments,         Body”). 7 U.S.C. § 4806. The Delegate Body – which
known as “checkoffs,” to fund promotion, research, and             determines the amount and distribution of the assessments –
consumer information to benefit the pork industry.                 consists of pork producers, who are nominated by the state
                                                                   pork producers associations and appointed by the Secretary,
  The district court held that requiring the payment of these      and pork importers, who are appointed by the Secretary based
assessments violates the First Amendment rights of pork            on the amount of assessments collected from importers. 7
producers by compelling them to subsidize speech with which        U.S.C. § 4806(b)(1). The Pork Act also provides for the
they do not agree. Appellants argue that: (1) the assessments      creation of a 15-member National Pork Board (“the Board”),
subsidize a government program that advances the                   7 U.S.C. § 4808 (a)(1), whose nominees are chosen by the
government’s policy of promoting pork consumption, and,            Delegate Body and appointed by the Secretary. The Board is
therefore, are immune from First Amendment scrutiny;               to develop and implement programs that fulfill the statutory
(2) even if not part of a government program, the assessments      mandates of promotion, research, and the provision of
are not compelled speech; (3) the Pork Act program that            consumer information. 7 U.S.C. § 4808(b)(1). Although the
requires the collection of assessments, is a lawful restraint on   United States Department of Agriculture (“USDA”) provides
commercial speech; and (4) even if the use of assessments for      some oversight over the Board, its Executive Vice President
Nos. 02-2337/2338            Mich. Pork Producers Ass’n,           5    6    Mich. Pork Producers Ass’n,         Nos. 02-2337/2338
                                  et al. v. Veneman, et al.                  et al. v. Veneman, et al.

noted that it “is not to be considered as a governmental                1999, after CFF filed petitions with the USDA seeking a
entity/agency or a government contractor.” Morever, the                 referendum on the termination of the Pork Checkoff Program,
members of the Board receive no compensation from the                   then-Secretary Glickman decided to conduct a voluntary,
government, and are reimbursed for expenses from the                    “fairness” referendum on the checkoff program’s future.
collected assessments. 7 U.S.C. § 4808(a)(1)(6).
                                                                          On January 11, 2001, Secretary Glickman announced that
  Because the Pork Act explicitly states that its programs              a majority of individuals had voted to terminate the program,
“shall be conducted at no cost to the Federal Government,” 7            and that as a result, he would terminate it. MPPA filed suit
U.S.C. § 4801(b)(2), the Act provides for funding through               the next day to enjoin the program’s termination. Mich. Pork
mandatory assessments. 7 U.S.C. § 4809 et seq. In                       Producers Ass’n, Inc. v. Campaign for Family Farms, 174 F.
accordance with the provisions of the Pork Act, an initial              Supp. 2d 637, 639 (W.D. Mich. 2001) (“MPPA I”). On
Pork Promotion Order, establishing the Pork Checkoff                    January 19, 2001, the district court issued a temporary
Program, was issued by the Secretary in 1986. An initial                restraining order pending hearing of the preliminary
referendum on the Pork Checkoff Program was held in 1988,               injunction motion. Id. Between the restraining order and the
and it was approved with the support of nearly eighty percent           scheduled hearing, newly-appointed Secretary of Agriculture
of pork producers. Payments are assessed against all                    Veneman decided to preserve the Pork Checkoff Program,
producers of porcine animals that are sold or slaughtered for           albeit with the funds collected by the Pork Checkoff Program
sale, and all importers of porcine animals, pork, or pork               administered directly by the Board instead of by the NPPC.
products.1 7 U.S.C. § 4809 (a)(1). The Board receives all
assessments, and distributes them according to formulas                   On June 25, 2001, the Supreme Court in United States v.
detailed in the Pork Act. Although most of the funds support            United Foods, 533 U.S. 405 (2001), invalidated – as contrary
generic advertising, some of the money is spent to promote              to the First Amendment’s prohibition against compelled
specific brands of pork products.                                       speech – the Mushroom Checkoff Program created by the
                                                                        Mushroom Promotion, Research, and Consumer Information
  CFF, a non-profit advocacy group consisting of a coalition            Act, 7 U.S.C. § 610 et seq. (the “Mushroom Act”). Like the
of four family farm organizations as well as individual hog             Pork Act, the Mushroom Act required producers and
farmers, is devoted to “ensuring the continued existence of             importers of mushrooms to pay assessments that were
family farms, particularly hog farms.” Since 1998, CFF’s                primarily used to fund generic advertising that promoted the
primary goal has been to end the Pork Checkoff Program.                 sale of mushrooms. CFF subsequently added to its complaint
CFF believes that the advertising funded by the Pork                    a First Amendment challenge to the Pork Act. MPPA I, 174
Checkoff Program favors those who sell processed meats,                 F. Supp. 2d at 639. On December 4, 2001, the district court
misrepresents the safety and desirability of large commercial           upheld the legality of Secretary Veneman’s decision to
farming, and downplays the benefits of family farms. In May             preserve the Pork Checkoff Program. MPPA I, 174 F. Supp.
                                                                        2d at 643-44. The court explicitly stated, however, that its
                                                                        ruling had no effect on the other claims of the parties,
    1                                                                   including CFF’s First Amendment challenges. Id. at 648.
      In 2002, the Farm Security and Rural Investment Act of 2002 was
passed, exemp ting organic hog farmers from p aying the assessments.
Pub . L. No . 107 -171 , §1(a ), 116 Stat. 13 4 (2002 ).
Nos. 02-2337/2338         Mich. Pork Producers Ass’n,       7    8     Mich. Pork Producers Ass’n,           Nos. 02-2337/2338
                               et al. v. Veneman, et al.               et al. v. Veneman, et al.

  CFF then voluntarily dismissed all of its remaining            Since at least one appellee in this action has standing, there is
challenges to the Pork Checkoff Program, save for its First      no need to consider MPPA’s standing challenges to the
Amendment claims. Mich. Pork Producers Ass’n, Inc. v.            individual appellees or to CFF. See, e.g. Bowsher v. Synar,
Campaign for Family Farms, 229 F. Supp. 2d 772, 777 (W.D.        478 U.S. 714, 721 (1986) (explaining that if one plaintiff has
Mich. 2002) (“MPPA II”). The parties filed cross-motions for     standing, it is unnecessary to consider the issue of standing as
summary judgment. On October 25, 2002, the district court        to other plaintiffs in the action).
granted CFF’s summary judgment motion, holding that the
First Amendment prohibited the Pork Checkoff Program and                       C. First Amendment Challenge
enjoining it in its entirety. Id. at 792. MPPA and the
Secretary filed timely Notices of Appeal, and this Court             1. Governmental Speech
subsequently granted a stay of the district court’s injunction
pending the appeal.                                                We first consider whether the subsidies generated under the
                                                                 Pork Act are properly analyzed as private speech or as
                      II. ANALYSIS                               governmental speech. The Supreme Court has made clear
                                                                 that the government may dictate the content and even the
                  A. Standard of Review                          viewpoint of speech when the government itself is the
                                                                 speaker: “[V]iewpoint-based funding decisions can be
  We review the district court’s grant of summary judgment       sustained in instances in which the government is itself the
de novo. See Watkins v. City of Battle Creek, 273 F.3d 682,      speaker....” Legal Servs. Corp. v. Velazquez, 531 U.S. 533,
685 (6th Cir. 2001). Summary judgment is granted when the        541 (2001). But the Court has yet to consider whether
record, viewed in the light most favorable to the nonmoving      programs similar in nature to the Pork Checkoff Program
party, reveals that there is no genuine issue of material fact   constitute governmental speech – the Court declined to do so
such that the moving party is entitled to judgment as a matter   in United Foods because the government had failed to raise
of law. FED . R. CIV . P. 56(c); see also Celotex Corp. v.       the governmental speech argument in the court below. United
Catrett, 477 U.S. 317, 322 (1986).                               Foods, 533 U.S. at 417.
                        B. Standing                                 We conclude that the pork industry’s extensive control over
                                                                 the Pork Act’s promotional activities prevents their attribution
  Plaintiffs have standing under Article III to challenge the    to the government. First, the primary purpose of the Pork Act
Pork Act. MPPA challenges the standing of CFF, claiming          is to strengthen the market position of the pork industry and
that: (1) several named appellees lacked standing because        increase the domestic markets for pork and pork products. 7
they do not pay assessments under the Pork Act and are           U.S.C. § 4801. See Keller v. State Bar of Cal., 496 U.S. 1, 13
unaffected by these provisions of the Pork Act requiring such    (1990) (categorizing as private the speech of an organization
payments; and (2) CFF does not have standing as an               created “not to participate in the general government of the
association under the test articulated in Hunt v. Wash. Apple    State, but to provide specialized professional advice to those
Adver. Comm., 432 U.S. 333, 343 (1977). In its brief to this     with the ultimate responsibility of governing the legal
Court, however, MPPA concedes that “two individuals, Mr.         profession.”). Second, unlike the typical scenario in which
Smith and Mr. Jones, had standing to pursue their claims.”       speech is considered governmental in nature, the programs’
Nos. 02-2337/2338          Mich. Pork Producers Ass’n,         9    10       Mich. Pork Producers Ass’n,              Nos. 02-2337/2338
                                et al. v. Veneman, et al.                    et al. v. Veneman, et al.

funding does not come from general tax revenues. See, e.g.,           2. Compelled Speech
Rust v. Sullivan, 500 U.S. 173 (1991); Wells v. City and
County of Denver, 257 F.3d 1132 (10th Cir. 2001); Downs v.            With its programs properly characterized as private speech,
Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir.             the constitutionality of the Pork Act turns on whether pork is
2000), cert. denied, 532 U.S. 994 (2001). The Pork Act’s            more like mushrooms or more like peaches. See F.J.
funding comes solely from mandatory assessments paid by             Dindinger, Free Speech for Mushrooms but not Peaches:
pork producers; the Act specifically forbids the use of             Economic Regulations after United Foods, Inc., COLO . LAW .
government funds for its operations, and the Secretary and her      61 (April 2002). In United Foods, the Supreme Court held
staff are reimbursed from the assessments for any time spent        that the Mushroom Act – which provided for mandatory
working on activities under the Pork Act. 7 C.F.R.                  assessments that were used primarily to fund the generic
§ 1230.73(c)(4).                                                    advertising of mushrooms – violated the First Amendment’s
                                                                    prohibitions against compelled speech. Id. at 411. However,
   Third, the government exercises only limited oversight over      in Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457
the programs. See United Foods, 533 U.S. at 417 (suggesting         (1997), the Supreme Court held that the Agricultural
that merely pro forma government oversight over a                   Marketing Agreement Act – which established mandatory
promotional program counsels against classifying it as              assessments that funded a broad regulatory apparatus that
governmental speech). Only one USDA staff member is                 included, as one of its many programs, promotional
responsible for overseeing all of the duties relating to the Pork   advertising of California tree fruit – did not constitute
Checkoff Program, including attending all meetings of the           unlawful compelled speech.2
Pork Board and reviewing all advertisements and
communications it develops. The government itself does not             Because the Pork Act is nearly identical in purpose,
propose or draft any of the advertisements. Indeed, the             structure, and implementation to the Mushroom Act, the Pork
trademark for the most recognizable ad, “Pork. The Other            Act is unconstitutional under the analysis set forth in United
White Meat,” is owned by the NPPC, not the government.              Foods. The Pork Act mandates that:
The Pork Board itself is comprised only of private pork
producers, appointed by the Secretary based on nominations            (3) Nothing in this chapter may be construed to -
made by the private state pork producers associations – which         (A) permit or require the imposition of quality standards
themselves are run entirely by industry officials.                    for pork or pork products;

  In sum, the costs and content of the speech in question are
almost completely the responsibility of members of the pork              2
                                                                         The federal courts have yet to weigh in on many other agriculture-
industry. The First Amendment does not lie dormant merely           promoting programs, including those touting “The Incredible, Ed ible
because the government acts to consolidate and facilitate           Egg”; “Ah . . . the Power of Cheese”; and “The T ouch ... the Feel of
speech that is otherwise wholly private.                            Cotton ... the Fabric of Our Lives.” See No te, The Co nstitution – It’s
                                                                    What’s for Dinner, 2 W Y O . L. R EV . 617 , 638 (2002). Earlier this year,
                                                                    however, the Eighth Circuit invalidated, as unconstitutional compelled
                                                                    speech, the mand atory assessment pro gram bearing the slogan “B eef – It’s
                                                                    what’s for Dinner.” See Livestock Mktg. Ass’n v. United States Dep’t of
                                                                    Agric., 335 F.3d 71 1 (8th Cir. 2003).
Nos. 02-2337/2338         Mich. Pork Producers Ass’n,       11    12   Mich. Pork Producers Ass’n,           Nos. 02-2337/2338
                               et al. v. Veneman, et al.               et al. v. Veneman, et al.

  (B) provide for control of the production of pork or pork       because the expression that CFF and its members must
  products; or                                                    support “is not germane to a purpose related to an association
  (C) otherwise limit the right of an individual pork             independent from the speech itself.” United Foods, 533 U.S.
  producer to produce pork and pork products.                     at 415-16.

7 §4801(b)(3). This scheme is a far cry from that upheld in         Finally, we find inapplicable to this case the relaxed
Glickman, which – in addition to funding a promotional            scrutiny of commercial speech analysis provided for by
campaign – provided for regulated price, output, and quality,     Central Hudson, and relied upon by Appellants. The Pork
and also authorized joint research and development projects,      Act does not directly limit the ability of pork producers to
inspections, and even standardized packaging. Glickman, 521       express a message; it compels them to express a message with
U.S. at 461. With the express prohibition on this type of non-    which they do not agree. Even assuming that the advertising
promotional regulation, the Pork Act serves but one purpose:      funded by the Act is indeed commercial speech, the more
promotion. This case is therefore governed by United Foods.       lenient standard of review applied to limits on commercial
                                                                  speech has never been applied to speech – commercial or
  MPPA attempts to distinguish the Mushroom Act from the          otherwise – that is compelled. See Glickman, 521 U.S. at 474
Pork Act, claiming that most of the funds collected by the        n.18 (questioning whether “the Central Hudson test, which
former were used for generic advertising, whereas only 16         involved restrictions on commercial speech, should govern a
percent of the total expenses in the 2001 Budget for all the      case involving the compelled funding of speech”). It is one
activities funded under the latter were used for generic,         thing to force someone to close her mouth; it is quite another
nationwide advertising. In fact, the record reflects that the     to force her to become a mouthpiece.
majority of the Pork Act’s funds support advertising and
promotions. The 2001 Budget called for $29,388,491, or 51           3. Remedy
percent of the total expenses, to be used under the category of
“Demand Enhancement.” Id. Expenditures in this area were            Finally, we conclude that the district court properly
budgeted as follows:                                              invalidated the Pork Act in its entirety. Because the Act has
                                                                  no “severability clause” providing for the preservation of
  Demand Enhancement Programming                 $2,816,000       those statutory provisions that comply with the Constitution,
  Advertising                                    $8,825,000       we must invalidate the entire statute if the “balance of the
  Merchandising                                  $5,400,000       legislation is incapable of functioning independently.” Alaska
  Foodservice                                    $3,697,000       Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987). The very
  Pork Information Bureau                        $2,800,000       basis for holding that the Act violates the First Amendment –
  Foreign Market Development/World Trade         $5,850,491       that its assessment of fees to promote pork is the chief goal of
                                                                  the Act, which does not create a broader regulatory program
The district court also found that Pork Act programs              – prevents us from preserving other parts of the statute. See
providing for “education” and “research” were designed to         Livestock Mktg. Ass’n v. United States Dep’t of Agric., 335
further the Act’s promotional goals. MPAA II, 229 F. Supp.        F.3d 711, 726 (8th Cir. 2003) (“[T]he fact that the ‘principal
at 777. Thus, the use of the assessments to fund advertising      object’ of the Beef Act is the very part that makes it
under the Pork Act is prohibited by the First Amendment           unconstitutional, (i.e., compelling funding of generic
Nos. 02-2337/2338         Mich. Pork Producers Ass’n,       13    14   Mich. Pork Producers Ass’n,     Nos. 02-2337/2338
                               et al. v. Veneman, et al.               et al. v. Veneman, et al.

advertising) [means that] no remaining aspects of the Act can                      III. CONCLUSION
survive.”).    It would be paradoxical to conclude
simultaneously that Congress sought only to promote pork            For the reasons stated, we AFFIRM the grant of summary
and that Congress still intended the incidental provisions of     judgment by the district court.
the Act to operate independently.
   Nor does United Foods instruct otherwise. Appellant
contends that: (1) this Court’s decision in that case
invalidated only part of the Mushroom Act; and (2) the
Supreme Court affirmed the decision of this Court in its
entirety. This argument misunderstands both decisions. The
lone sentence in this Court’s decision upon which Appellants
rely – which states that “[t]he portions of the Mushroom Act
of 1990 which authorize such coerced payments for
advertising are likewise unconstitutional” – was part of the
analysis that distinguished the Mushroom Act from the statute
upheld in Glickman, and in its context is most fairly read only
as a comparison of the two statutes. This reading is
confirmed by the Supreme Court’s discussion of the decision
below, which states only that “the Sixth Circuit held this case
is not controlled by Glickman.” United Foods, 533 U.S. at
409. Even more illustrative is the Supreme Court’s
conclusion in United Foods that “[t]he only program the
Government contends the compelled contributions serve is
the very advertising scheme in question.” Id. at 415. The
decision to invalidate the advertising provisions of the
Mushroom Act by definition resulted in the invalidation of the
entire statute.
   It would contort congressional intent if we were to take a
statute that seeks entirely to promote a particular product and
then strain to preserve the purportedly non-promotional
provisions of that very statute. And the Supreme Court does
not require that we do so. The district court was correct in
striking down the entire Pork Act.
