Group defends checkoff injunction before appeals court
March 6, 2018
BILLINGS, Mont. — In oral arguments before the Ninth Circuit Court of Appeals on Monday, R-CALF USA's attorney, David Muraskin of Public Justice, defended the group's preliminary injunction awarded by the U.S. District Court for the District of Montana. The preliminary injunction enjoins Agriculture Secretary Sonny Perdue from compelling Montana ranchers to subsidize the private speech of the Montana Beef Council without first obtaining the affirmative consent from the rancher-payees.
Before the appellate court's three-judge panel, Muraskin argued that the government is wrong in claiming that the promotional and advertising messages of the Montana Beef Council is government speech; and even if it is not, then the First Amendment rights of Montana ranchers are protected by allowing ranchers to opt out of sending their money to a private corporation.
Muraskin urged the court to reject the government's argument because Purdue does not manage the operation of the Montana Beef Council to the extent necessary to meet fundamental standards for government speech. Therefore, Muraskin asserted, the Montana Beef Council's speech is private speech subject to the Constitution's protections.
Referring to the Memorandum of Understanding that Purdue and the Montana Beef Council executed after the U.S. Magistrate Judge had recommended that R-CALF USA's preliminary injunction be granted, Muraskin argued it should be given little weight by the court because it was created solely for purposes of R-CALF USA's litigation and it is not authorized by statute or by regulation.
Muraskin further argued that case law establishes that speech can only be government speech if those who are forced to subsidize it can influence the speech through the democratic process. But in this case, he said, there is no democratic accountability for the speech espoused by the private Montana Beef Council.
Using a front organization controlled by officials of the National Cattlemen's Beef Association — known as the Agribusiness Freedom Foundation, the NCBA has denounced R-CALF USA's legal action to preserve and defend the constitutional rights of U.S. cattle producers.
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R-CALF USA CEO Bill Bullard defends his group's legal action stating, "There can be no higher calling for an industry trade association than to ensure that its members constitutional rights are fully protected from an overreaching government."
In addition to lead counsel David Muraskin, R-CALF USA is also represented in its checkoff case by J. Dudley Butler, of the Farm and Ranch Law Group, and Bill Rossbach of Rossbach Law, P.C. in Missoula, Mont.