No 03 1164 In the Supreme Court of the United States ANN M VENEMAN SECRETARY OF AGRICULTURE ET AL PETITIONERS v LIVESTOCK MARKETING ASSOCIATION ET AL ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT REPLY BRIEF FOR THE PETITIONERS THEODORE B OLSON Solicitor General Counsel of Record Department of Justice Washington D C 20530 0001 202 514 2217 TABLE OF CONTENTS Page A Review is warranted to decide whether the Beef Act is constitutional under the government speech doctrine B Review is warranted to resolve the question whether the Beef Act is constitutional under the commercial speech doctrine C Review is warranted on the scope of the remedy 1 8 9 TABLE OF AUTHORITIES Cases Abood v Detroit Bd of Educ 431 U S 209 1977 Alaska Airlines Inc v Brock 480 U S 678 1987 Board of Regents v Southworth 529 U S 217 2000 Central Hudson Gas Elec Corp v Public Serv Comm n 447 U S 557 1980 Glickman v Wileman Bros Elliot Inc 521 U S 457 1997 Keller v State Bar 496 U S 1 1990 Lebron v National R R Passenger Corp 513 U S 374 1995 Legal Servs Corp v Velazquez 531 U S 533 2001 Rosenberger v Rector Vistors of Univ of Va 515 U S 819 1995 Rust v Sullivan 500 U S 173 1991 United States v Gainey 380 U S 63 1965 United States v United Foods 533 U S 405 2001 I 7 8 9 10 4 7 9 7 8 3 7 8 5 6 6 6 2 1 8 II Cases Continued West Virginia State Bd of Educ v Barnette 319 U S 624 1943 Wooley v Maryland 430 U S 705 1977 Page 7 7 Constitution and statutes U S Const Amend I 5 6 8 9 Beef Promotion and Research Act of 1985 7 U S C 2901 et seq 1 7 U S C 2901 a 3 3 7 U S C 2901 a 4 3 7 U S C 2902 13 3 7 U S C 2904 1 3 7 U S C 2904 4 C 3 7 U S C 2904 6 B 3 6 Commodity Promotion Research and Information Act of 1996 7 U S C 7401 b 2 5 In the Supreme Court of the United States No 03 1164 ANN M VENEMAN SECRETARY OF AGRICULTURE ET AL PETITIONERS v LIVESTOCK MARKETING ASSOCIATION ET AL ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT REPLY BRIEF FOR THE PETITIONERS A Review Is Warranted To Decide Whether The Beef Act Is Constitutional Under The Government Speech Doctrine 1 Respondents contend that review is unwarranted in this case because the court of appeals invalidation of the Beef Promotion and Research Act of 1985 Beef Act 7 U S C 2901 et seq was pre ordained by this Court s decision in United States v United Foods Inc 533 U S 405 2001 Br in Opp 2 In United Foods however the Court expressly refrained from deciding whether a similar generic advertising program involved government speech because that issue was not raised or addressed in the court of appeals 533 U S at 416 417 In contrast the government relied on the government speech doctrine to defend the Beef Act in in this case and the court of appeals expressly resolved that issue holding that the government speech doctrine does not 1 2 support the constitutionality of the Beef Act Pet App 11a 18a The government speech issue is therefore squarely presented here and nothing in United Foods addresses much less preordains the proper resolution of that issue 2 Nor does the absence of a circuit split on whether the Beef Act is constitutional under the government speech doctrine lessen the need for this Court s review Br in Opp 17 The court of appeals in this case invalidated an Act of Congress Pet App 28a and the invalidation of an Act of Congress is itself an independent reason for this Court to grant review See United States v Gainey 380 U S 63 65 1965 Moreover the generic advertising program under that Act of Congress has been in effect for more than 15 years and has formed an integral part of the federal government s promotion of beef education of consumers and stabilization of an important sector of the Nation s economy An appellate decision invalidating an Act of Congress and an important and longstanding program established under that Act should not be left unreviewed by this Court The government speech question presented in this case is also one of exceptional and recurring importance Congress has authorized and the Secretary of Agriculture has implemented generic advertising of several other agricultural commodities See Pet 23 The Court s resolution of the government speech issue in this case will have a direct bearing on the constitutionality of those other programs The States have also established programs for generic advertising of commodities Because of the importance of the question presented to them thirty States and Puerto Rico have filed an amicus brief urging the Court to grant review 3 3 Respondents argue that the government speech doctrine does not support the constitutionality of the Beef Act Br in Opp 17 25 The Court should address that contention after it grants review receives full briefing and hears oral argument Respondents merits based argument is not a reason for denying review In any event respondents err in characterizing Beef Act speech as private speech Br in Opp 17 22 Congress itself has specified the content of the message to be conveyed under the Beef Act that it is desirable to eat beef 7 U S C 2902 13 defining promotion to mean action including advertising to advance the image and desirability of beef and beef products Congress has selected that message in order to further important government purposes to promote adequate nutrition and the national economy 7 U S C 2901 a 3 and 4 Congress has established an entity whose members are selected by the Secretary of Agriculture the Beef Board to help carry out some of the administrative responsibilities under the Act 7 U S C 2904 1 And Congress has entrusted the Secretary with the ultimate responsibility to ensure that Beef Act advertising campaigns advance the government s message and further government objectives 7 U S C 2904 4 C and 6 B approval authority Whatever the precise contours of the government speech doctrine those features in combination are more than sufficient to make Beef Act speech government speech a In arguing that Beef Act speech is not government speech respondents mistakenly rely on Keller v State Bar 496 U S 1 1990 Br in Opp 17 In that case the Court held that a state bar responsible for regulating the legal profession was not engaged in government speech when it expressed opinions on issues 4 such as gun control and a nuclear freeze initiative Respondents reliance on Keller is misplaced because that case did not involve any of the features that make Beef …
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