                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                                      PUBLISH
                                                                             JUL 10 1998
                     UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                  Clerk
                                  TENTH CIRCUIT



 JERRY GOETZ d/b/a JERRY GOETZ
 and SONS, individually and on behalf of
 others similarly situated,
       Plaintiff-Appellant,
                                                            No. 96-3120
 v.
 DAN GLICKMAN, Secretary, United
 States Department of Agriculture,
       Defendant-Appellee,

 and

 WILLIE REIBEL, RODNEY and
 LARRY MENSE, JAN LYONS,
 KANSAS LIVESTOCK ASSOCIATION,
 NATIONAL CATTLEMEN’S
 ASSOCIATION, and NATIONAL
 LIVESTOCK AND MEAT BOARD,

       Intervenors-Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                        (D. Ct. No. 94-1299-FGT)
                           (920 F. Supp. 1173)



David R. Klaassen (Clarence L. King and Brian W. Wood of Hampton, Royce, Engleman
& Nelson, L.C., Salina, Kansas, with him on the brief), Marquette, Kansas, appearing for
Plaintiff-Appellant.
Douglas N. Letter and Sushma Soni, United States Department of Justice, Washington,
D.C., appearing for Defendant-Appellee.

Wayne Watkinson and Richard T. Rossier of McLeod, Watkinson & Miller (John G.
Roberts, Jr. and Gregory G. Garre of Hogan & Hartson, L.L.P., Washington, D.C., with
them on the brief), Washington, D.C., appearing for Intervenors-Appellees.


Before MURPHY and LOGAN, Circuit Judges, and MILES-LaGRANGE, District
Judge.*


MILES-LaGRANGE, District Judge.



   Plaintiff Jerry Goetz ("Goetz"), a Kansas cattle farmer, appeals the district court’s

ruling in favor of Dan Glickman, Secretary, U.S. Department of Agriculture

(“Secretary”). Goetz claims the Beef Promotion and Research Act of 1985, 7 U.S.C. §

2901(a) (“Beef Promotion Act” or “Act”), is unconstitutional. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm.

                             Facts and Proceedings Below

      Goetz filed this class action lawsuit against the Secretary contending that his and

other class members’ constitutional rights are being violated because they must pay a

$1.00 per head “assessment” on the sale and importation of cattle as authorized by the




      The Honorable Vicki Miles-LaGrange, United States District Judge of the
      *

Western District of Oklahoma, sitting by designation.

                                            -2-
Beef Promotion Act. The district court’s decision provides a succinct description of the

Act’s regulatory scheme:

             The Act directs the Secretary to promulgate a Beef Promotion and Research
      Order (“the Order”), that provides for financing beef promotion and research
      through the assessments on cattle sold in the United States and cattle, beef, and
      beef products imported into the United States. 7 U.S.C. § 2901(b), 2903,
      2904(8)(A)-(C). The Order established by the Secretary (7 C.F.R. Part 1260,
      Subpart A) established the Cattlemen’s Beef Promotion and Research Board (“the
      Cattlemen’s Beef Board”) and the Beef Promotion Operating Committee (“the
      Operating Committee”). 7 U.S.C. § 2904(1)-(7); 7 C.F.R.1260.141,1260.161. The
      Cattlemen’s Beef Board is made of cattle producers and importers appointed by
      the Secretary. 7 U.S.C. § 2904(1); 7 C.F.R. 1260.141. The Board’s principal
      duties are to administer the Order, make rules and regulations to effectuate the
      terms and provisions of the Order, elect members of the Board to serve on the
      Operating Committee, to approve or disapprove the budget submitted by the
      Operating Committee, to receive, investigate and report to the Secretary
      complaints of violations of the Order, and [to] recommend to the Secretary
      amendments to the Order. 7 U.S.C. § 2904(2)(A)-(F).

             The Operating Committee is composed of ten members of the Cattlemen’s
      Beef Board and ten members elected by a federation of State beef councils. 7
      U.S.C. § 2904(4)(A); 7 C.F.R. 1260.161. The Operating Committee develops and
      submits to the Secretary for approval promotion, advertising, research, consumer
      information and industry information plans and projects. 7 U.S.C. § 2904(4)(B); 7
      C.F.R. 1260.168. The Act prohibits the use of funds for political purposes. 7
      U.S.C. § 2904(10).

             The Act requires cattle producers in the United States to pay a one dollar
      per head assessment on cattle sold in this country. 7 U.S.C. § 2904(8)(A) & (C); 7
      C.F.R.1260.172 (a)(1), 1260.310. Each person making payment to a cattle
      producers [sic] for cattle is a “collecting person” who is required to collect the
      assessments and remit them to a qualified State beef council in the State in which
      the collecting person resides, or, if there is no qualified State beef council, to the
      Cattlemen’s Beef Board. 7 U.S.C. § 2904(8)(A); 7 C.F.R. 1260.311(a),
      1260.312(c). Each collecting person must report to the Board certain information
      for each calendar month at the time the assessments are remitted and must
      maintain and make available for the Secretary’s inspection the records necessary to


                                            -3-
      verify the reports. 7 U.S.C. § 2904(11); 7 C.F.R. 1260.201, 1260.312(a)-(c),
      1260.202.

              The Secretary is authorized to conduct investigations and to issue
      subpoenas to determine if there has been a violation of the Act, the Order, or the
      rules and regulations thereunder. 7 U.S.C. § 2909. After an administrative
      hearing, the Secretary may issue an order restraining violations and may impose a
      civil penalty of up to $5,000 for each violation of the Act and the Order. Id. §
      2908(a). In addition, the Secretary may request the Attorney General to initiate a
      civil action to enforce, and to restrain a person from violating, any order or
      regulation under the Act. Id. § 2908(b), (c).

             Within 22 months of the issuance of the Order, the Act required the
      Secretary to conduct a referendum among those persons who were producers and
      importers during that trial period. The Order would continue to operate only upon
      approval by a majority of those participating in the referendum. 7 U.S.C. §
      2906(a). Prior to the referendum, a cattle producer who paid the assessment could
      demand a one-time refund. Id. § 2907; 7 C.F.R. 1260.173, 1260.174. On May 10,
      1988, the referendum was conducted and the Order was approved.

             Plaintiff is a “producer” within the meaning of the Act. 7 U.S.C. §
      2902(12). As a producer, plaintiff is subject to the one dollar per head assessment
      upon the sale of cattle. Plaintiff alleges that at times he makes payments to other
      producers for cattle purchased from such producers, and thus he is a “collecting
      person” under the Act. Id. § 2904(8)(A). As a collecting person, plaintiff is
      subject to the collecting provisions of the Act and accompanying regulations.

See Goetz v. Glickman, 920 F. Supp. 1173, 1176-77 (D. Kan.1996) (footnote omitted).

      On October 29, 1993, the Secretary commenced administrative proceedings

against Goetz because he failed to comply with the Beef Promotion Act and pay the

assessment. A hearing before an administrative law judge was set for August 8, 1994.

On August 2, 1994, Goetz filed a civil action in district court and moved for a temporary

restraining order to enjoin the Secretary from proceeding with the administrative hearing.

The district court entered a temporary restraining order which expired on August 15,

                                            -4-
1994. On August 19, 1994, the parties agreed, with the court’s approval, to stay the

administrative proceedings until October 1, 1994. As part of the agreement, Goetz agreed

to let an accounting firm audit his company. Over the objection of the Secretary, the

district court continued the stay throughout the litigation.

        Four Kansas cattle producers and three non-profit associations representing cattle

producers in Kansas and throughout the nation intervened in the lawsuit to defend the

Act.1 On Dec. 8, 1995, the district court heard oral arguments from the parties.2 Goetz

argued the Act was unconstitutional because it (1) was beyond Congress’ power to

regulate interstate commerce, (2) imposed an unconstitutional direct tax, (3) effected an

impermissible delegation of legislative authority, (4) violated the Takings Clause of the

Fifth Amendment, (5) violated the Equal Protection Clause of the Fourteenth

Amendment, and (6) infringed on the first amendment rights of cattle producers. He

sought a ruling in the district court that the Act is unconstitutional, an injunction against

its enforcement, and a refund of assessments he has paid.

       On Feb. 28, 1996, the district court upheld the constitutionality of the Act adopting

the reasoning of the Third Circuit Court of Appeals in United States v. Frame, 885 F.2d




       1
         In their brief, the intervenors/appellees adopted the arguments made by the
Secretary and addressed Goetz’ first amendment challenge arguing the Act is not subject
to first amendment scrutiny because it is government speech.

       The National Pork Producers Council, the American Soybean Association and the
       2

National Potato Council filed amicus briefs in the district court.

                                              -5-
1119 (3d Cir. 1989), cert. denied, 493 U.S. 1094 (1990).3 The district court found that

promoting the beef industry is a proper object of legislation under Congress’ commerce

power because it is reasonably adapted to the goal of strengthening the beef industry. 920

F. Supp. at 1180. The district court also held that the assessment imposed by the Beef

Promotion Act is not a tax because the Act does not raise revenue for the government and

regulation is the primary purpose of the statute. See id. at 1181. The court further held

that Congress did not unlawfully delegate its legislative authority to the members of the

beef industry because the Act places the Board under the Secretary’s authority, Congress

sets the amount of the assessments, and the Secretary decides how the funds will be spent.

See id. at 1182. As to Goetz’ takings clause claim, the district court concluded there was

no fifth amendment violation because the government is not taking money for private use

or to confer a private benefit on private interests (beef groups) in the beef industry. See

id. Since Congress has determined beef promotion is in the public interest, the district

court held courts should not substitute their judgment for Congress’. See id.

       With regards to Goetz’ first amendment claim, the district court agreed with the

Frame court and found there was no free speech or free association violation because the

Act is “commercial speech” not “government speech.”4 The district court concluded that



       The plaintiff in Frame also challenged the constitutionality of the Beef Promotion
       3

Act.
       4
        The district court, like the court in Frame, recognized the issue was a close one.
See id. at 1182.

                                             -6-
the Act passed the test outlined in Central Hudson Gas & Elec. Corp. v. Public Service

Comm’n, 447 U.S. 557 (1980) on the free speech claim.5 The court also concluded

Goetz’ first amendment free association claim should be analyzed under the higher

standard of scrutiny set forth in Roberts v. United States Jaycees, 468 U.S. 609 (1984).6

920 F. Supp. at 1182. The district court found the Act’s restrictions passed this test

because there was only a slight incursion on Goetz’ associational rights, the national

interest was compelling, the purpose of trying to bolster the beef image was neutral, the

Act did not proscribe any official view, and no political funding was authorized by the

statute. See id. at 1183.

       Finally, the district court found there was no equal protection violation. The court

held that Congress had a rational basis for enactment of the statute. Specifically, the

district court determined that an assessment was easier to administer, ranchers would be

the most benefitted by the Act and ranchers could pass any costs incurred on to others,




       Restrictions on commercial speech are subject to the test outlined in Central
       5

Hudson: (1) the State must assert a substantial government interest; (2) the regulatory
technique must be in proportion to that interest; and (3) the incursion on commercial
speech be designed carefully to achieve the State’s goal. 447 U.S. at 564.
       6
          Under Roberts, the governmental interference with associational rights must be
justified by “compelling state interests, unrelated to the suppression of ideas, that cannot
be achieved through means significantly less restrictive of associational freedoms.” 468
U.S. at 623.


                                             -7-
and since Congress gave cattle producers the maximum influence in shaping the program,

it rationally decided to pass along the corresponding financial burden to them.7 See id.

       The district court (1) granted the motion to dismiss filed by the Secretary and

intervenors; (2) denied Goetz’ motion for summary judgment; (3) declared Goetz’ motion

for class certification moot; and (4) set aside its prior orders staying the administrative

proceedings. See id. at 1184. Goetz appeals the district court's decision and asks this

court to declare the Act unconstitutional, give him injunctive relief from the

administrative proceedings, and order the return of funds he and other class members paid

as assessments under the Beef Promotion Act.

       On July 9, 1997, we directed the parties to file supplemental briefs addressing the

effect of the Supreme Court's decision in Glickman v. Wileman Bros. & Elliot, Inc., 117

S.Ct. 2130 (1997) on Goetz’ first amendment claim. In Wileman Bros., the Supreme

Court, resolving a circuit split, held the regulations imposing a generic advertising

program for California peaches, nectarines, and plums paid for by mandatory assessments

on fruit handlers, did not implicate or violate the First Amendment.




       7
        The district court also held that because no fundamental right was involved the
Equal Protection Clause only required that the classification rationally further legitimate
governmental interests. See id. at 1183 (citing Nordlinger v. Hahn, 505 U.S. 1, 8-12, 112
S.Ct. 2326, 2331-32, 120 L.Ed.2d 1 (1992); United States v. Phelps, 17 F.3d 1334, 1344
(10th Cir.), cert. denied, 513 U.S. 844, 115 S.Ct. 135, 130 L.Ed.2d 77 (1994); O’Connor
v. City and County of Denver, 894 F.2d 1210, 1223 (10th Cir. 1990)).

                                              -8-
                                        Analysis

      In this appeal, Goetz raises all of the same claims made in the district court except

the unconstitutional delegation of power and taking clause claims. The ruling of the

district court is reviewed de novo. National Commodity & Barter Ass'n v. Gibbs, 886

F.2d 1240, 1243-44 (10th Cir. 1989) (legal issues are reviewed de novo).



                                   Commerce Clause

      Goetz first argues the Beef Promotion Act is unconstitutional because it violates

the Commerce Clause. He contends (1) the Act does not have a public purpose, (2) the

Act does not regulate an activity which substantially affects interstate commerce, and (3)

there is no rational connection between the regulatory means selected and the asserted

ends. In response, the Secretary argues beef purchases and sales substantially affect

interstate commerce. Furthermore, the Secretary argues, the Act, which authorizes

promotion and research to strengthen the beef industry and is funded by a regulatory

assessment, represents a valid exercise of Congress’ commerce power. In addition, the

regulation of interstate commerce encompasses promotion as well as prohibition. The

Secretary contends promotion and research are reasonably adapted to the Act’s goal of

strengthening the market through increased consumption because advertising affects

demand.




                                            -9-
      The United States Supreme Court has clearly defined a court’s function in

examining Congress’ exercise of its power under the Commerce Clause:

      The task of a court that is asked to determine whether a particular exercise of
      congressional power is valid under the Commerce Clause is relatively narrow. The
      court must defer to a congressional finding that a regulated activity affects
      interstate commerce, if there is any rational basis for such a finding. This
      established, the only remaining question for judicial inquiry is whether the means
      chosen by [Congress] is reasonably adapted to the end permitted by the
      Constitution. The judicial task is at an end once the court determines that
      Congress acted rationally in adopting a particular regulatory scheme.
      Judicial review in this area is influenced above all by the fact that the Commerce
      Clause is a grant of plenary authority to Congress. This power is complete in
      itself, may be exercised to its utmost extent, and acknowledges no limitations,
      other than are prescribed in the constitution. Moreover, this Court has made clear
      that the commerce power extends not only to the use of channels of interstate or
      foreign commerce and to protection of the instrumentalities of interstate commerce
      or persons or things in commerce, but also to activities affecting commerce. As
      we explained in Fry v. United States, 421 U.S. 542, 547, 95 S.Ct. 1792, 1795, 44
      L.Ed.2d 363 (1975), even activity that is purely intrastate in character may be
      regulated by Congress, where the activity, combined with like conduct by others
      similarly situated, affects commerce among the States or with foreign nations.
      Thus, when Congress has determined that an activity affects interstate commerce,
      the courts need inquire only whether the finding is rational.

Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 276 (1981)
(internal citations and quotations omitted). See also State of Oklahoma v. Federal Energy
Regulatory Commission, 661 F.2d 832, 837 (10th Cir. 1981), cert. denied, Texas v.
Federal Energy Regulatory Commission, 457 U.S. 1105 (1982); United States v.
Hampshire, 95 F.3d 999, 1001-1002 (10th Cir. 1996), cert. denied, 117 S.Ct. 753 (1997).
      In examining the validity of Congress’ exercise of power, we begin with the
language contained in the Act itself. Congress made the following findings when it
passed the Beef Promotion Act:
      (1) beef and beef products are basic foods that are a valuable part of human diet;


                                          -10-
      (2) the production of beef and beef products plays a significant role in the Nation’s
      economy, beef and beef products are produced by thousands of beef producers and
      processed by numerous processing entities, and beef and beef products are
      consumed by millions of people throughout the United States and foreign
      countries;
      (3) beef and beef products should be readily available and marketed efficiently to
      ensure that the people of the United States receive adequate nourishment;
      (4) the maintenance and expansion of existing markets for beef and beef products
      are vital to the welfare of beef producers and those concerned with marketing,
      using, and producing beef products, as well as to the general economy of the
      Nation;
      (5) there exist established State and national organizations conducting beef
      promotion, research, and consumer education programs that are invaluable to the
      efforts of promoting the consumption of beef and beef products; and
      (6) beef and beef products move in interstate and foreign commerce, and beef and
      beef products that do not move in such channels of commerce directly burden or
      affect interstate commerce of beef and beef products.

7 U.S.C. § 2901(a).

      Congress’ purpose and objectives are clearly set forth in the Act:

             It, therefore, is declared to be the policy of Congress that it is in the public
      interest to authorize the establishment, through the exercise of the powers provided
      herein, of an orderly procedure for financing (through assessments on all cattle
      sold in the United States and on cattle, beef, and beef products imported into the
      United States) and carrying out a coordinated program of promotion and research
      designed to strengthen the beef industry’s position in the marketplace and to
      maintain and expand domestic and foreign markets and uses for beef and beef
      products. Nothing in this Act shall be construed to limit the right of individual
      producers to raise cattle.

7 U.S.C. § 2901(b).




                                           -11-
       Goetz first contends that beef production does not substantially affect interstate

commerce.8 For congressional exercise of power to be valid under the commerce clause,

the legislation must involve an activity that substantially affects interstate commerce.

United States v. Lopez, 115 S.Ct. 1624, 1630 (1995) (Court struck down the Gun Free

School Zone Act of 1990 enacted under the commerce clause because it had nothing to do

with any sort of economic enterprise). As the district court noted, “It should be beyond

dispute that beef moves in and substantially affects interstate commerce, thus making the

beef industry a proper object of legislation under the commerce clause.” 920 F. Supp. at

1179. We also conclude Congress had a rational basis for finding the beef industry

substantially affects interstate commerce.

       Goetz also argues Congress really intended to regulate advertising. However, the

plain language of the statute reveals the purpose of the Act is to strengthen the beef

industry and we conclude this is a legitimate congressional goal. We further conclude the

objective of the Act is valid and the stimulation of the beef market is a proper regulatory

activity.




       8
         Goetz contends the Act is unconstitutional because it does not have a public
purpose. Essentially, he argues the Act’s primary purpose is to raise revenue, therefore it
is a direct tax impermissibly levied upon him. See Brief of Appellant at 31. As set forth
below, we hold the Act’s primary purpose is to regulate, therefore it is not a tax.


                                             -12-
       Goetz contends Congress’ commerce power is limited to restricting or prohibiting

an activity.9 We agree with the well reasoned opinion of our sister circuit in United States

v. Frame, 885 F.2d 1119 (3d Cir. 1989), cert. denied, 493 U.S. 1094 (1990). The Third

Circuit said, “[I]t is now indisputable that the power to regulate interstate commerce

includes the power to promote interstate commerce.” Id. at 1126. The Act regulates

commerce by authorizing the collection of an assessment that is used to promote and

advertise beef. The Supreme Court has recognized that advertising stimulates consumer

demand for the product being promoted. See Posadas de Puerto Rico Associates v.

Tourism Co., 478 U.S. 328, 343 (1986). The court in Frame also rejected the argument

that the Act is not regulatory noting that Congress chose to promote and stimulate the

demand side of the beef market indirectly, by influencing consumer attitudes toward beef.

885 F.2d at 1126. The Frame court likewise rejected Goetz’ argument that the Act is

unconstitutional because no activity is being regulated. The court stated: “[W]e decline to

invalidate an otherwise lawful exercise of the commerce power on the basis Congress has

not specified whether it is regulating the ‘activity’ of ‘consumer beef purchases,’

‘interstate beef sales,’ or ‘national beef markets.’ Each activity is related, and is validly

regulated by Congress.” Id. at 1127.




       9
        Goetz contends Congress does not have the power to “stimulate and promote”
commerce since Congress’ power is limited to a) leaving the activity alone; b) restricting
the activity; or c) prohibiting the activity.

                                             -13-
       Goetz also contends there is no rational connection between the regulatory means

selected and the asserted end. Goetz contends since the government has set up a pork

promotion and research board (among others), and pork is the primary competitor of beef,

it is not reasonable for the Secretary to engage in conflicting programs. In addition,

Goetz argues the Act does not serve its stated purpose to regulate beef and Congress is

actually trying to regulate advertising.

       In considering this argument, the Frame court stated: “To stimulate the demand for

beef, the lack of which Congress has determined is harming the beef industry, Congress

has chosen from its arsenal of regulatory means promotion and advertising, research,

consumer information and industry information. These endeavors are rationally related to

the maintenance and expansion of the nation’s beef markets.” Id. The Frame court

found that the Act was a valid exercise of Congress’ power to regulate interstate

commerce. See id. We agree. Goetz’ argument that the promotion of beef is offset by

other promotion schemes such as for pork is without merit. We hold Congress has a

rational basis for stimulating different areas of the agricultural economy and determining

its various promotional programs are in the best interest of the public.

       In sum, we conclude that under current Supreme Court precedent, Congress has

validly exercised its commerce powers in enacting the Beef Promotion Act.



                                           Direct Tax


                                              -14-
       Goetz also argues the assessment is a direct tax that must be apportioned uniformly

among the states to be constitutional under the Taxing Clause because the Act’s primary

purpose is to raise revenue. Goetz argues the Act is a direct tax and relies on legislative

history to support his contention Congress never intended it to be a regulatory program.

Goetz contends the assessments flow to qualified beef councils and national private trade

associations in the beef industry.

       The Secretary argues the Apportionment Clause is inappropriate because Congress

clearly intended to exercise its authority under the Commerce Clause. The Secretary

contends assessment is not the objective of the Act but merely a funding mechanism for

the promotion of the beef industry and research. The Secretary further argues the

assessment is not a tax but is like a “special assessment” imposed on convicted criminals

under the Victims of Crimes Act, or mandatory bar dues or union dues. Finally, the

Secretary points out that Goetz has no evidence that the assessment is a direct tax.

       The test for determining whether an assessment is a tax has been clearly

enunciated by the Sixth Circuit Court of Appeals:

       The test to be applied is to view the objects and purposes of the statute as a whole
       and if from such examination it is concluded that revenue is the primary purpose
       and regulation merely incidental, the imposition is a tax and is controlled by the
       taxing provisions of the Constitution. Conversely, if regulation is the primary
       purpose of the statute, the mere fact that incidentally revenue is also obtained does
       not make the imposition a tax, but a sanction imposed for the purpose of making
       effective the congressional enactment.




                                            -15-
Rodgers v. United States, 138 F.2d 992, 994 (6th Cir. 1943). See also Chickasaw Nation

v. State of Oklahoma ex rel Oklahoma Tax Commission, 31 F.3d 964, 968 (10th Cir.

1994) (quoting American Petrofina Co. of Texas v. Nance, 859 F.2d 840, 841 (10th Cir.

1988) (“[t]he mere fact a statute raises revenue does not imprint upon it the characteristics

of a law by which the taxing power is exercised.”)). We agree with the district court that

the primary purpose of the Act is regulation, not to raise revenues.

                                     First Amendment

       Goetz also asserts the assessment violates his First Amendment right because he is

compelled to support advertising which promotes beef consumption.10 Goetz argues the

Act singles out and unfairly burdens producers, importers and persons who must collect

the tax (buyers of beef).

       The Secretary responds that the Act does not suppress or restrict Goetz’ speech, it

merely requires he pay an assessment to fund the promotion of a commodity that he

markets and is no different than compelled funding of unions or integrated bars.

Furthermore, the Secretary and intervenors argue the Act is “government speech” (as

opposed to commercial speech) and there are no First Amendment restrictions on

“government speech.”



       10
          The $1.00 per head assessment on the sale and importation of cattle funds the
Operating Committee’s activities, which include the promotion of the beef industry
throughout the country through “generic advertising.” The generic advertisements
include the familiar “Beef, it’s what’s for dinner” promotion.

                                            -16-
       This Court agrees with the Secretary and intervenors. Glickman v. Wileman

Bros.& Elliot, Inc., 117 S.Ct. 2130 (1997), involved a First Amendment challenge to a

generic advertising program for California peaches, nectarines, and plums which was

established pursuant to a marketing order promulgated by the Secretary of Agriculture

and supported by mandatory assessments imposed on the handlers of fruit. The Supreme

Court granted certiorari to resolve the conflict between the Ninth Circuit in Glickman v.

Wileman Brothers & Elliot, Inc., 58 F.3d 1367 (1995), which held the peach promotion

program violated the First Amendment, and the Third Circuit in Frame, which held the

Beef Promotion Act did not violate the First Amendment.

       In Wileman Bros. the Supreme Court held that the generic marketing program did

not raise a First Amendment issue for the Court because the marketing order did not

impose restraint on the freedom of any producer to communicate any message to any

audience, did not compel any person to engage in any actual or symbolic speech, and did

not compel the producers to endorse or to finance any political or ideological views. See

id. at 2138. The Supreme Court found its compelled speech cases inapplicable because

there is no “compelled speech.” The Court held the assessments for ads did not require

the fruit producers to repeat objectionable messages, use their property to convey

antagonistic ideological messages, force them to respond to a hostile message when they

prefer to remain silent or require them to be publicly identified or associated with

another’s message. See id. at 2139. Furthermore, the Court said, the assessments are


                                            -17-
financial contributions for generic advertising that program participants do not disagree

with, and the advertising is not attributed to individual handlers. See id. In addition, none

of the generic ads promote any particular message other than encouraging consumers to

buy California tree fruit. See id.

       The Court concluded that the generic ads for California fruit are germane to the

purposes of the marketing orders and the assessment is not used for ideological activities.

See id. at 2140. The Court further concluded that generic advertising is a species of

economic regulation that should enjoy the same strong presumption of validity that the

Court accords other policy judgments made by Congress. See id. at 2141. Finding the

generic advertisements do not warrant special First Amendment scrutiny under the

Central Hudson standard, the Supreme Court reversed the Ninth Circuit decision. See id.

at 2142.

       In the case at bar, the district court incorrectly concluded that the Act was

commercial speech and applied Central Hudson. The district court found the Act passed

the Central Hudson test and did not violate Goetz’ freedom of speech and association.

Goetz v. Glickman, 920 F. Supp. at 1182-83. We find the district court erred in applying

the Central Hudson test to Goetz’ First Amendment claim. However, we can affirm the

district court on a basis not relied on by the court if supported by record and law. United

States v. Corral, 970 F.2d 719, 726 n.5 (10th Cir. 1992). Therefore, we affirm the district




                                            -18-
court and find under the Supreme Court’s decision in Wileman Bros., Goetz’ First

Amendment claim is fruitless.



                                     Equal Protection

       Finally, Goetz contends the assessment violates the Equal Protection Clause

because it infringes on his First and Fifth amendment rights. Therefore, he argues, the

Act must be reviewed under strict scrutiny to determine whether the statute is narrowly

tailored to further a compelling governmental interest. Goetz argues the Act unfairly

burdens producers, importers and collecting persons while benefitting the entire beef

industry. Goetz also contends Congress’ interests in preserving the American cattlemen’s

traditional way of life and avoiding the free rider problem are not compelling or

substantial governmental interests. Goetz further argues the refund provisions of the Act

suggest the government’s interest is not compelling or substantial. Goetz contends there

are numerous less restrictive means available to Congress as evidenced by the legislative

discussions.11


       11
         Goetz contends his fundamental rights under the First and Fifth Amendments
have been infringed and therefore strict scrutiny applies. In addition, Goetz contends that
the Beef Promotion Act is presumed to be unconstitutional for the purposes of analysis of
his First and Fifth Amendment claims. However, we conclude Goetz’ claims must be
analyzed under the rational basis test and the Act, therefore, is presumptively
constitutional and the burden falls on Goetz to show that the Act is irrational or arbitrary
and cannot further a legitimate governmental interest. See United States v. Phelps, 17
F.3d 1334, 1345 (10th Cir.), cert. denied, 115 S.Ct. 135 (1994). In his appellate brief,
                                                                               (continued...)

                                            -19-
       In response, the Secretary argues the failure of Goetz’ First Amendment claim

dooms his equal protection challenge as well. Since he does not allege a suspect class,

the Secretary contends the strict scrutiny standard of review does not apply. Furthermore,

the Act does not infringe on Goetz’ equal protection rights because it makes an economic

distinction and need only be rationally related to a legitimate governmental interest. The

Secretary argues the Act easily survives the rational basis test because Congress has a

compelling interest in strengthening the beef industry. In addition, the Secretary argues,

Congress also rationally decided the members of the industry that have the most to gain

should bear the economic costs involved.

       The Fifth Amendment’s Equal Protection Clause prohibits the federal government

from discriminating between individuals or groups. Government classification that

actually jeopardizes the exercise of a fundamental right or a suspect class (race, gender,

etc.) must be reviewed under a strict scrutiny standard and must be precisely tailored to

further a compelling governmental interest. Edwards v. Valdez, 789 F.2d 1477, 1483

(10th Cir. 1986). If no suspect class or fundamental right is involved, the Equal

Protection Clause only requires that the classification rationally further a legitimate

governmental interest. See Nordlinger v. Hahn, 505 U.S. 1 (1992); O’Connor v. City and

County of Denver, 894 F.2d 1210, 1223-24 (10th Cir. 1990).



        (...continued)
       11

Goetz fails to address his equal protection claim under the rational basis test, arguing only
the strict scrutiny standard of review.

                                             -20-
       We agree with the district court’s determination that the Act does not violate

Goetz’ First and Fifth Amendment rights, and the strict scrutiny standard of review does

not apply. Although Goetz failed to address his equal protection claims under the rational

basis test, the court in Frame identified several rational bases for Congress’ enactment of

the statute: (1) an assessment on the initial sale of cattle is easier to administer; (2)

ranchers would be most benefitted by the Act; and (3) ranchers could pass the cost on to

others. Frame, 885 F.2d at 1137-38. This Court finds the Act easily survives Goetz’

equal protection challenge as well.



                                          Conclusion

       The judgment of the district court is AFFIRMED in all respects on Goetz’

Commerce Clause, Taxing Clause and Equal Protection Clause claims. The district

court’s decision is AFFIRMED on Goetz’ first amendment claims under the reasoning of

the Supreme Court in Glickman v. Wileman Bros. & Elliot, Inc., 117 S.Ct. 2130 (1997).




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