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First Amendment

The firm has represented private parties in many of the leading cases establishing that federal commodity promotion entities (often known as checkoffs) with Boards appointed by the Secretary of Agriculture, and whose activities are carefully overseen by the Agriculture Marketing Service of the USDA, engage in "government speech" that is exempt from First Amendment challenge. These cases include a successful defense of a First Amendment challenge to the Beef Promotion Act in Goetz v. Glickman, 149 F.3d 1131 (10th Circuit 1998), affirming, 920 F.Supp. 1173 (D. Kan. 1996), and in Charter v. USDA, 230 F.Supp.2d 1121 (D.Mont. 2002); a successful defense of a First Amendment challenge to the Hass Avocado Promotion Act, Avocados Plus, Inc. v. Veneman, (No. 02-1798 (GK))(D.D.C. Feb. 14, 2003). In Charter, the firm's lawyers urged the District Court to rule that the speech of the Beef Board is government speech not subject to the First Amendment. The Charter Court agreed with this argument in November 2002 despite a rejection of the same argument in a similar challenge to the Beef Promotion Act months before by the South Dakota District Court (LMA v. Veneman, 207 F.Supp.2d 992 (D.S.D. 2002), affirmed by 8th Circuit (July 8, 2003), rev'd sub nom, Johanns v. LMA (decided May 23, 2005)(Beef Promotion Act produces government speech immune from the First Amendment).

In Cochran v. Veneman, 252 F.Supp.2d 126 (2003), the firm's lawyers urged the Court to rule that the speech of the Dairy Board did not violate the First Amendment. This argument prevailed at the District Court but was later reversed by the Third Circuit in Cochran v. Veneman, 359 F.3d 263 (3rd Cir. 2004). The firm's lawyers then filed a petition for certiorari seeking review by the Supreme Court. The U.S. Solicitor General also filed a petition. Following the Supreme Court's decision in Johanns v. LMA, the Supreme Court granted both petitions and vacated the judgment of the Third Circuit, and remanded for further proceedings.

The firms lawyers have also participated in the preparation of an amicus curiae brief filed with the U.S. Supreme Court in Glickman v. Wileman Brothers, 521 U.S. 457 (1997), urging the Supreme Court to reject a First Amendment challenge to a federal commodity promotion law for California tree fruit. They were also involved in the preparation of an amicus curiae brief in United States v. United Foods, Inc., 533 U.S. 405 (2001), that involved a First Amendment challenge to the Mushroom Promotion Act. More recently he participated in moot courts of Gregory Garre of Hogan & Hartson in connection with the oral argument at the Supreme Court of the Johanns v. LMA case.

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