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Alligators, already a protected species, now enjoy additional protection under the First Amendment, at least with regard to generic marketing.

 

See You Later Alligator:
Another Checkoff Fund Ruled Unconstitutional

Well, now we can say we've heard it all!

Remarkably, some government bureaucrat convinced Louisiana's legislature and Department of Wildlife and Fisheries that the State needed to impose mandatory assessments to support generic advertising for alligator products. With a bite being taken out of its profits, Pelts & Skins, LLC, a luxury skin company, challenged the assessments.

America's farmers and ranchers are being forced to pay hundreds of millions of dollars annually to mandatory assessment programs, or checkoffs, for so-called "generic" advertising. In fact, the twelve largest commodity promotion boards spend more than $700 million per year of hard earned producer money.

Fortunately for all them there alligator hunters, farmers and shippers, a federal judge ruled last month that the forced subsidy for generic advertising violated the First Amendment.

As humorous as the thought may be that alligator products be afforded First Amendment protection, the opinion by Judge John V. Parker of the United States District Court for the Middle District of Louisiana makes redneck riddler Jeff Foxworthy sound like a mortician. In his decision, Judge Parker wrote: "The undersigned admits to a certain degree of difficulty in maintaining an appropriately straight judicial face while attempting to apply the Supreme Court precepts that explain the simple language of the First Amendment to the alligator advertising program at issue here. When important constitutional issues must be resolved by a determination of whether an alligator is more like a mushroom than a peach, then in the words of Justice Thomas: 'Surely we have lost our way.'" (citing Justice Thomas' dissenting opinion in Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 506 (1997).

On a more serious note -- and certainly one important to checkoff challengers -- the court concluded that the generic advertising at issue here did not constitute government speech. In accord with recent decisions in Michigan Pork Producers v. Campaign for Family Farms (in the Western District of Michigan) and Livestock Marketing Ass'n v. United States Dep't of Agriculture (in the South Dakota District Court), which considered the constitutionality of the pork and beef checkoff programs respectively, Judge Parker noted that the minimal degree of the government's involvement in the workings of the Alligator Council meant that Louisiana could not claim the speech as its own.

Judgment was entered in favor of Pelts & Skins, with the Department of Wildlife and Fisheries being permanently enjoined from future approving, authorizing or expending revenues from the alligator checkoff programs for the purpose of generic alligator marketing.

Alligators, already a protected species, now enjoy additional protection under the First Amendment, at least with regard to generic marketing. For alligator farmers, the news is timely, particularly considering that new menu items featured this week at the 2003 National Restaurant Association Restaurant, Hotel-Motel Show in Chicago included alligator nuggets, fillets and baby back rib styles.


  • To read more about our nation's checkoff programs and the Center's involvement in the challenges, click here.

[Posted May 26, 2003]