557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (Central Hudson). The district court noted, among other things, that "[t]he Supreme Court in Glickman rejected the use of the Central Hudson test because [Central Hudson] involved a restriction on commercial speech rather than the compelled funding of speech involved in the California tree fruit marketing orders." LMA II, 207 F.Supp.2d at 999 (citing Glickman, 521 U.S. at 474 n. 18, 117 S.Ct. 2130). On the issue of appropriate relief, appellants argued in the district court that the injunction should apply to only those who were plaintiffs in the case and only those expenditures that related to political or commercial speech. The district court disagreed as a practical matter, but recognized that retroactive enforcement of an injunction would result in undue hardships. Thus, the district court declared the Beef Act and the Beef Order unconstitutional and prospectively enjoined appellants "from any further collection of beef checkoffs as of the start of business on July 15, 2002" (i.e., approximately three weeks after the date of the district court's order). Id. at 1008. The district court certified its order, which partially disposed of the issues in the case, as a final judgment pursuant to Fed.R.Civ.P. 54(b). Appellants thereafter timely filed the present appeals. We granted appellants' motion for a stay of the district court's order pending our decision3. For the reasons stated below, we now affirm the order of the district court. Discussion We review de novo the question of whether the Beef Act violates the First Amendment. See United States v. Washam, 312 F.3d 926, 929 (8th Cir.2002) (challenge to constitutionality of federal statute reviewed de novo ). We generally review the district court's findings of facts for clear error; however, in a case such as this involving a First Amendment claim, we will, where necessary, examine the record as a whole and "make a fresh examination of crucial facts." Hurley v. Irish-American Gay, Lesbian, & Bisexual Group, 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); see also Families Achieving Independence & Respect v. Nebraska Dep't of Soc. Servs., 111 F.3d 'The stay order will remain in effect until our mandate issues. 62 Agric. Dec. 492 1408, 1411 (8th Cir. 1997) (en banc) ("[W]e review findings of noncritical facts for clear error.... We independently review the evidentiary basis of critical facts, giving due regard to the trial court's opportunity to observe the demeanor of witnesses."). In the present case, we have independently reviewed the record and agree with the district court's findings of crucial facts. For example, we agree with the district court's finding that appellees are compelled to pay the statutorily-mandated assessments in question. See LMA II, 207 F.Supp.2d at 997-98. Unlike fees charged for the use of recreational facilities or special taxes imposed on non-essential consumer products, the mandatory assessments at issue in the present case are directly linked to appellees' source of livelihood, and they have no meaningful opportunity to avoid these assessments. We also agree with the district court that appellees, or at least some of them, disagree with the generic advertising conducted pursuant to the Beef Act. See id. at 996-97. Finally, upon careful consideration of the record and the pertinent statutory provisions, we agree with the district court that "[t]he beef checkoff is, in all material respects, identical to the mushroom checkoff" at issue in United Foods, that "at least 50% of the assessments collected and paid to the Beef Board are used for advertising," and that "the principal object of the beef checkoff program is the commercial speech itself." Id. at 1002. II. Appellants first argue that appellees' First Amendment claim is barred because the advertising conducted pursuant to the Beef Act is government speech and therefore immune from First Amendment scrutiny. The Supreme Court has never specifically addressed this government speech argument in a case involving an agricultural checkoff program. In United Foods, it was undisputed that the government speech argument had not been asserted or addressed in the court below. Therefore, the Supreme Court declined to consider whether or not the Mushroom Act was immune from First Amendment scrutiny on that basis. See United Foods, 533 U.S. at 416-17, 121 S.Ct. 2334 ("As the Government admits in a forthright manner, this [government speech] argument 'was not raised or addressed' in the Court of Appeals.'... The Government's failure to raise its argument in the Court of Appeals deprived respondent of the ability to address significant matters that might have been difficult points for the Government."). Since the Supreme Court's United Foods decision, many district courts have addressed the government speech issue in determining the constitutionality of various agricultural checkoff programs. Compare, e.g., Charter v. United States Dep't of Agriculture, 230 F.Supp.2d 1121 (D.Mont.2002) (Charter ) (upholding the beef checkoff program on ground that generic advertising under the Beef Act is government speech), with Pelts & Skins, L.L.C. v. Jenkins, No. CIV.A.02-CV-384, 2003 WL 1984368, at (M.D.La. Apr.24, 2003) (holding that mandatory assessments imposed to fund generic advertising of alligator products violate alligator farmer's First Amendment rights; reasoning in part: "[b]ecause the generic advertising here involved is not government speech, plaintiff is free to challenge such advertising on First Amendment grounds"); In re Washington State Apple Advertising Comm'n, 257 F.Supp.2d 1290, 1305 (E.D.Wa.2003) (holding that mandatory assessments imposed to fund generic advertising of Washington State apples violate apple producers' First Amendment rights; reasoning in part: "the Commission's activities are not protected by the government speech doctrine"); Michigan Pork Producers v. Campaign for Family Farms, 229 F.Supp.2d 772, 785-89 (W.D.Mich.2002) (holding that mandatory assessments imposed to fund generic advertising of pork and pork products violate pork producers' First Amendment rights; reasoning in part: "[t]hough the Secretary is integrally involved with the workings of the Pork Board, this involvement does not translate the advertising and marketing in question into 'government speech" "). In the present case, appellants have specifically urged us to follow the reasoning and disposition in Charter. Appellants describe the government speech doctrine as follows: The government is constitutionally entitled to engage in its own speech without implicating the First Amendment. As this Court has recognized, '[t]he First Amendment does not prohibit the government itself from speaking, nor require the government to speak. Similarly, the First Amendment does not preclude the government from exercising editorial discretion over its own medium of expression.' Brief for Appellants* at 26 (quoting Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093-94 (8th Cir.)) (Ku Klux Klan ) (where underwriting acknowledgments by nonprofit public broadcast ratio 4 Citations to the "Brief for Appellants" refer to the brief filed by United States Department of Justice on behalf of the federal appellants. 62 Agric. Dec. 492 station constituted governmental speech, state university operating the station could exercise editorial discretion over content of such acknowledgments without being subject to First Amendment forum analysis), cert. denied, 531 U.S. 814, 121 S.Ct. 49, 148 L.Ed.2d 18 (2000), (quoting Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033, 1044 (5th Cir.1982) (en banc)). As to the determination of whether generic advertising under the Beef Act is or is not government speech, appellants cite our decision in Ku Klux Klan for proposition that government speech may be identified based upon the central purpose of the program, the degree of editorial control exercised by the government over the content of the message, and whether the government bears the ultimate responsibility for the content of the message. In addition, appellants cite Lebron, 513 U.S. at 400, 115 S.Ct. 961, in which the Supreme Court stated that, when "the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment." Applying these principles to the present case, appellants contend that the generic advertising under the Beef Act is government speech. They emphasize, among other things, that the Beef Board and the Beef Committee were created pursuant to the Beef Act, members of the Beef Board and the Beef Committee serve at the direction and under the control of the Secretary, the Beef Act itself prescribes the content of the Beef Board's and the Beef Committee's speech as generic promotion of beef and beef products, and the Beef Act defines the powers and duties of the Beef Board and the Beef Committee vis-a-vis those promotional activities. Moreover, they argue, the First Amendment exemption for government speech applies whether it is the government itself speaking or a private entity enlisted by the government to speak on the government's behalf. See, e.g., Legal Services Corp. v. Velazquez, 531 U.S. 533, 541, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001). Appellants also dispute the district court's reasoning based upon the Third Circuit's 1989 decision in Frame. In Frame, the Third Circuit emphasized that funding for advertising under the Beef Act comes from an identifiable group rather than a general tax fund and reasoned that this type of funding creates a "coerced nexus" between the message and the group. However, appellants argue, such reasoning based upon a "coerced nexus" has been rejected by the Supreme Court in cases such as Board of Regents v. Southworth, 529 U.S. 217, 229, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000) (Southworth) (in evaluating a First Amendment compelled speech claim based upon the use of mandatory student activity fees to fund private organizations engaging in political or ideological speech, holding that "the University of Wisconsin may sustain the extracurricular dimensions of its programs by using mandatory student fees with viewpoint neutrality as the operational principle"). III. We begin our analysis by examining the so-called "government speech doctrine" at a fundamental level. The government speech doctrine has firm roots in our system of jurisprudence. As the Supreme Court has explained: Government officials are expected as a part of the democratic process to represent and to espouse the views of a majority of their constituents. With countless advocates outside of the government seeking to influence its policy, it would be ironic if those charged with making governmental decisions were not free to speak for themselves in the process. If every citizen were to have a right to insist that no one paid by public funds express a view with which he [or she] disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed. Keller, 496 U.S. at 12-13, 110 S.Ct. 2228 (citing United States v. Lee, 455 U.S. 252, 260, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (religious belief in conflict with payment of taxes affords no basis under the free exercise clause for avoiding uniform tax obligation)). However, the government speech doctrine clearly does not provide immunity for all types of First Amendment claims. Cf. Santa Fe Sch. Dist. v. Doe, 530 U.S. 290, 302-10, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (studentled prayers delivered prior to home football games at a public high school constituted public speech attributable to the school district and thus violated the establishment clause of the First Amendment), cited in Charter, 230 F.Supp.2d at 1134-36. Nor do the cases cited by appellants hold that, when the government speaks, it is entirely immune from all types of First Amendment free speech claims. Our decision in Ku Klux Klan, for example, upheld a discretionary decision by a state university-run radio station to decline an offer of an underwriting donation because the university did not wish to publicly acknowledge the source of the offered donation, as was required by law. That case stands for the proposition--embodied in the language from Keller quoted above--that, when the government speaks in its role as the government, it may |