The Fateful Day Don Put an Article in the Break Room
Predictably, unleashing meat inspectors to police the exercise of free speech—with guidelines that provide only vague directional prodding—is the equivalent of releasing a bull in a china shop. At least, it was for Don and Ellen Vander Boon, the owners of West Michigan Beef Company. (To be fair, Mythbusters found that bulls can be surprisingly respectful of grandma’s china. The same cannot be said for the USDA and the First Amendment.)
The USDA threatened to shut down this family-owned company, not because of health concerns, or because short ribs were incorrectly labeled as plate ribs (incidentally, you would not believe the labeling requirements), or because People for the Ethical Treatment of Animals infiltrated their ranks in some sort of hostile takeover bid. Rather, the so-called offense consisted of an article Don placed in the breakroom.
The breakroom at West Michigan Beef includes tables that essentially serve as a repository for newspapers, magazines, articles, and other forms of literature that employees or the owners wish to share with those who care to read them. Think of it as a pre-technological Facebook. Importantly, no one is required to read the materials, any more than I am required to flip through a two-year old copy of People while sitting in my dentist’s lobby, or to read my friend’s Facebook post about replacing smoke detector batteries (true story).
In 2015, following the Supreme Court decision in Obergefell v. Hodges that purported to redefine marriage for the entire country, various employees shared articles and information related to the decision. Don participated by sharing an article that expressed the traditional Christian view that God designed marriage as a union between a man and a woman and set forth reasons for that position.
When a USDA public health veterinarian, the on-site inspector, saw the article in the breakroom, well, he had a cow. He removed the article and reported it to his USDA supervisor. The pair stampeded into Don’s office and threatened to remove USDA inspectors—effectively shutting down the facility—if Don returned the article to the breakroom, stating the article was offensive and harassing under expanded agency rules.
We Inspect Your Beef, and Your Brains
This ban on Don’s speech appears to have been grounded on the USDA’s “Anti-Harassment Policy Statement” issued in July 2015, which prohibits written or oral communications that USDA officials consider “disrespectful” or “insult[ing]” on the basis of sexual orientation.
Notably, the feelings about which the USDA is concerned are not those of Don and Ellen’s 45 employees, but rather those of the handful of USDA inspectors working in the Vander Boon’s federally regulated plant. So much so that the company’s breakroom for company employees must be intellectually sterilized, lest an inspector catch a glimpse of an “insulting” article while walking through the breakroom.
So much could be said here, but to take at least a stab at brevity, I’ll rein in my responses to two choice beefs with the policy.
First, and most fundamentally, even assuming that the USDA should be in the business of inspecting expression in addition to animal products, its inspectors are constitutionally prohibited from labeling some viewpoints as prime while chucking others entirely. As recently as 2015, the Supreme Court said as much, explaining in Reed v. Town of Gilbert that the government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Notably, the USDA inspectors took no action against materials in the breakroom that expressed favorable messages regarding same-sex marriage. The topic was not objectionable to the USDA; the viewpoint was.
Second, by forcing Don and Ellen to choose between (1) abandoning their right to express their religious views and (2) being shut down, the USDA imposed an impermissible burden on their free exercise of religion. The Supreme Court prohibited such a forced choice in Sherbert v. Verner, saying that “[g]overnmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.”
My employer, Alliance Defending Freedom, sent a letter to President Trump asking him to direct the USDA to rescind its unlawful harassment policy and lift the unconstitutional restriction on Don’s speech—in other words, to take the policy out back and swiftly and humanely kill it. The letter also asks the president to follow through with his promise to make religious freedom a top administration priority by signing an executive order directing federal agencies to respect the free exercise of religion, thereby providing necessary protections for small business owners like Don, as well as nonprofit and social-service organizations.