Dairy farmers win back their freedom of speech

By Cara Hungerford

March 5, 2004: In a unanimous decision, the U.S. Court of Appeals for the 3rd Circuit has ruled the dairy check-off unconstitutional under the First Amendment. The challenge was brought to the court by Pennsylvania farmers Joe and Brenda Cochran, who argued the check-off violated their freedom of speech by forcing them to pay for advertising with which they did not agree.

The check-off requires all dairy farmers to contribute 15 cents/hundredweight to a fund that pays for advertisements promoting the dairy industry. This generic advertising has been responsible for such successful campaigns as ‘Got Milk’ and ‘Ahhhh, The Power of Cheese,’ but it hinges on the general principle that all products in the category are essentially equal. The Cochrans--who emphasize sustainable milk production on their 150-cow dairy farm in Westfield, Pa., and do not use recombinant Bovine Growth Hormone (rBGH)--contend that they are not. They feel their methods yield a superior product while protecting the environment, and that they should be able to market it accordingly.

In a two-fold defense, the defendants, Ag Secretary Anne Veneman and the National Dairy Promotion Board, argued that the advertisements and the Dairy Promotion Stabilization Act of 1983 (Dairy Act) which supports them are government speech and therefore not subject to First Amendment protection. They also maintained that due to the highly regulated nature of the dairy industry, all producers are forced to abide by rules that essentially put them all in the same situation, and thus they should all benefit from the advertising.

The Cochrans disagree. “We’ve never seen an increase in milk prices as a result of paying 20 years of the check-off,” Joe Cochran says, “and if I don’t see a return from my advertising, I stop advertising. The Cochrans are not going to pay. If other farmers see a benefit, they can keep paying.”

This time the court agreed.

“The U.S. Supreme Court long ago held that the First Amendment does not allow government to compel individuals to speak, just as it does not allow government to prevent them from speaking,” says Steve Simpson, the Cochrans lawyer and a senior attorney with the Institute for Justice. “Speech wouldn’t be free if government could require people to convey officially sanctioned messages. The same principle applies to compelling people to pay for speech with which they disagree.”

The decision was a reversal of a lower, district court ruling which chose not to rule on the issue of speech at all and instead based its decision on the regulated nature of the dairy industry.

A voluntary future

This is a pivotal time for dairy farmers, according to Larry Breech, President of the Pennsylvania Farmers Union. He says the ruling will probably lead to a voluntary check-off system and to greater individual responsibility. “If you don’t wish to opt in, you can opt out. Farmers can take that 15 cent/cwt and can promote the way they want.”

“The challenge now goes back to individual dairy producers,” Breech says, “How will they promote their product?”

While it has yet to be seen how exactly this decision will affect the dairy industry, Breech said it is still a victory for the farmer. “Will it spell the end of the check-offs? No. Will it weaken them? Yes. Will it make them more transparent? Well, that is what the NFU (National Farmers Union) has always wanted.”

The fight isn’t over yet. The USDA now has the option of appealing the decision to all of the Third Circuit Court of Appeals judges or directly to the U.S. Supreme Court. But Joe feels confident in their case against the check-off and even more so now that he has the First Amendment on his side. “It’s is not that Cochrans don’t like it,” he says, “We don’t like it, but [the point is] that it’s unconstitutional.”


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