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be immune from First Amendment challenge based upon its choice of content. Cf. Rust v. Sullivan, 500 U.S. 173, 192-95, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (the government may, without violating the First Amendment, selectively fund speech that is believed to be in the public interest, while at the same time restricting funding for speech that promotes an alternate viewpoint). Indeed, as appellants themselves argue: "Because the First Amendment limits government interference with private speech rather than the Government's own speech, 'when the State is the speaker, it may make content-based choices... [and] it is entitled to say what it wishes.'" Brief for Appellants at 26 (quoting Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)).

Appellants have inadvertently identified the precise flaw in their government speech argument. Unlike in Ku Klux Klan, where the plaintiffs challenged a decision concerning the content of government speech, appellees in the present case are challenging the government's authority to compel them to support speech with which they personally disagree; such compulsion is a form of "government interference with private speech." The two categories of First Amendment cases--government speech cases and compelled speech cases--are fundamentally different. See, e.g., Southworth, 529 U.S. at 234-35, 120 S.Ct. 1346 (in addressing 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, the Supreme Court noted that "the analysis likely would be altogether different" if the matter concerned speech by the University)'.

In the present case, appellees have not invoked the First Amendment to influence the content of the generic beef advertising at issue. Rather, they

'Similarly, appellants' reliance on Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) (Lebron ), is misplaced. Lebron involved an artist's First Amendment claim against the entity commonly known as Amtrak, challenging Amtrak's refusal to allow him to lease billboard space for political advertising. The issue before the Supreme Court was whether Amtrak was a private corporation or part of the government for purposes of determining its exposure to a constitutional challenge. Id. at 379, 115 S.Ct. 961. Amtrak argued that it was not part of the government and therefore not subject to the constitutional challenge. By contrast, in a government speech case, the defendant typically argues that it is part of the government and therefore immune from content-related First Amendment scrutiny of its own speech under the government speech doctrine. Moreover, even if the Beef Board and the Beef Committee were deemed to be parts of the government under the Lebron standard and the speech in question was therefore deemed to be government speech, our First Amendment inquiry would not end there. See infra at 19-20 & n. 9.

assert their First Amendment free speech and free association rights to protect themselves from being compelled to pay for that speech, with which they disagree. Their First Amendment claim predominantly raises a free speech issue, and our analysis is generally governed by the Supreme Court's compelled speech line of cases, including Keller and Abood. See United Foods, 533 U.S. at 413, 121 S.Ct. 2334 ("It is true that the party who protests the assessment here is required simply to support speech by others, not to utter the speech itself. We conclude, however, that the mandated support is contrary to the First Amendment principles set forth in cases involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity.") (citing Keller and Abood). As suggested by Justice Stevens in his concurring opinion in United Foods, 533 U.S. at 417-18, 121 S.Ct. 2334, cases such as Keller, Abood, and the case at bar--involving compelled payment of money--may be viewed as the "compelled subsidy" subset of the compelled speech cases.

[5] In compelled speech cases, the Supreme Court has traditionally applied a balancing-of-interests test to determine whether or not the challenged governmental action is justified. See, e.g., Keller, 496 U.S. at 13, 110 S.Ct. 2228 ("[T]he compelled association and integrated bar are justified by the State's interest in regulating the legal profession and improving the quality of legal services."); Wooley v. Maynard, 430 U.S. 705, 715-16, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (Wooley ) ("Identifying the [appellees'] interests as implicating First Amendment protections does not end our inquiry however. We must also determine whether the State's countervailing interest is sufficiently compelling to justify requiring appellees to [convey the message to which they object]."). In the present case, we must decide what constitutional standard applies when compelled subsidies are used to fund generic commercial advertising. On this question, appellants have consistently argued that, even if the Beef Act is not immune from First Amendment scrutiny under the government speech doctrine, it nevertheless survives First Amendment scrutiny as regulation of commercial speech under the Central Hudson standard.

6 As indicated in Abood v. Detroit Bd. of Ed., 431 U.S. 209, 222-23, 233-36, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), if appellees' First Amendment claim challenged only the fact that they are being compelled to contribute to a collective fund, their claim would implicate only their free association right. However, because appellees are additionally challenging the use of those funds to pay for disfavored speech, their claim predominantly implicates their free speech right.

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We are again faced with an issue that was not directly addressed by the Supreme Court in United Foods. In United Foods, 533 U.S. at 409- 10, 121 S.Ct. 2334 (internal citations omitted), the Supreme Court stated:

We have used standards for determining the validity of speech regulations which accord less protection to commercial speech than to other expression. That approach, in turn, has been subject to some criticism. We need not enter into the controversy, for even viewing commercial speech as entitled to lesser protection, we find no basis under either Glickman or our other precedents to sustain the compelled assessments sought in this case. It should be noted, moreover, that the Government itself does not rely upon Central Hudson to challenge the Court of Appeals' decision, and we therefore do not consider whether the Government's interest could be considered substantial for purposes of the Central Hudson test.

In the present case, as stated above, the district court declined to apply the Central Hudson test to appellees' First Amendment claim, noting that the Supreme Court had declined to apply that test in Glickman. See LMA II, 207 F.Supp.2d at 999 ("The 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.") (citing Glickman, 521 U.S. at 474 n. 18, 117 S.Ct. 2130). However, we disagree with the district court's reasoning because it fails to account for the more recent pronouncements in United Foods. In United Foods, the Supreme Court went out of its way to distinguish the broad cooperative scheme that comprehensively regulated the California tree fruit industry at issue in Glickman from the comparatively unregulated, and more commercially competitive, mushroom industry. The Court also emphasized that collective advertising was the "principal object" of the Mushroom Act, United Foods, 533 U.S. at 415, 121 S.Ct. 2334, whereas the collective advertising in Glickman was just one among many of the "anticompetitive features of the [California tree fruit] marketing orders," Glickman, 521 U.S. at 470, 117 S.Ct. 2130. Accordingly, we conclude that Glickman does not provide a complete answer to this commercial speech issue. We infer that, had the government relied upon Central Hudson in United Foods, the Supreme Court would have adapted the Central Hudson test to the circumstances of that case, but would nevertheless have held that the Mushroom Act unconstitutionally regulated commercial speech. Such an inference, we believe, is consistent with the language from United Foods quoted above. We reach this conclusion recognizing that Central Hudson

involved a restriction on speech' while the present case involves compelled speech. In our view, it is more significant that Central Hudson and the case at bar both involve government interference with private speech in a commercial context. Accordingly, because the beef checkoff program at issue in the present case is identical in all material respects to the mushroom checkoff program at issue in United Foods, we now adapt the Central Hudson test to appellees' First Amendment claim.

In Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343, the Supreme Court explained:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

In adapting the Central Hudson test to the particular circumstances of this case, we ask not whether the expression at issue is protected but rather whether appellees have a protected interest in avoiding being compelled to pay for the expression at issue (the generic beef advertising). We have already answered that question; under the compelled speech line of cases, appellees have a protected First Amendment interest at stake. The remaining questions are whether the governmental interest in the beef checkoff program is substantial and, if so, whether the beef checkoff program directly advances that governmental interest and is not more extensive than necessary to serve that interest. Stated more succinctly, the issue is whether the governmental interest in the commercial advertising under the Beef Act is sufficiently substantial to justify the infringement upon appellees' First Amendment right not to be compelled to subsidize that commercial speech.

7 In Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 570-71, 100 S.Ct. 2343,65 L.Ed.2d 341 (1980), the Supreme Court held that a regulation promulgated by the New York Public Service Commission, which completely banned promotional advertising by a utility company, violated the company's First Amendment free speech right because it was more extensive than necessary to further the State's governmental interest in energy conservation.

'Appellants describe the governmental interest as "protecting the welfare of the beef industry." Brief for Appellants at 51.

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At this juncture, we may now revisit appellants' government speech arguments, to put them into proper perspective. Appellants' government speech arguments are relevant to our assessment of the substantiality of the government's interest. As a general proposition, the greater the government's responsibility for, and control over, the speech in question, the greater the government's interest therein. In this sense, we do take into account the quasi-governmental nature of the Beef Board and the Beef Committee and the oversight, albeit limited, exercised by the Secretary over the generic advertising conducted pursuant to the Beef Act. However, consistent with the district court's conclusion that the advertising in question is not government speech, we consider the substantiality of the government's interest to be highly doubtful. In any event, even assuming that the government's interest is substantial, our First Amendment inquiry does not end there. We must determine whether the government's interest is sufficiently substantial to justify the infringement upon appellees' First Amendment rights. At this point, the analysis turns largely upon the nature of the speech in question. See, e.g., Central Hudson, 447 U.S. at 563, 100 S.Ct. 2343 (constitutional protection available turns on both the nature of the governmental interest served by the regulation and the nature of the expression).

In Keller and Abood, the Supreme Court considered the nature of the speech at issue in terms of whether or not it was germane to the institutional purposes which justified the mandatory dues in the first place. In Keller, 496 U.S. at 13-14, 110 S.Ct. 2228, the Court explained:

Abood held that a union could not expend a dissenting individual's dues for ideological activities not "germane" to the purpose for which compelled association was justified: collective bargaining. Here the compelled association and integrated bar are justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those

'As we have already explained, a determination that the expression at issue is government speech does not preclude First Amendment scrutiny in the compelled speech context. For example, in Wooley v.Maynard, 430 U.S. 705,715-16,97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), the issue was whether New Hampshire motorists could be compelled to convey a message with which some of them disagreed, by having it displayed on their state-issued license plates. The message was clearly "government speech" in the sense that it came directly from the state, yet it was ultimately held to violate the First Amendment. See id. at 717,97 S.Ct. 1428 ("[W]here the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh the individual's First Amendment right to avoid becoming the courier for such message.").