FOR IMMEDIATE RELEASE
Contact: Eric Schippers
May 8, 2002
Rejects Back-Door Government Speech Ploy by Agricultural
Va. After months of around-the-clock, intensive negotiations,
Congress passed the long-awaited $173 billion, 10-year Farm Bill.
The 421-page colossus seems to contain something for everyone this
election-year except for the 15 agricultural trade associations
who sought to slip into the bill language that would declare all
commodity checkoff-related advertising as "government speech."
this blatant attempt to influence the outcome of pending litigation
over the nations commodity checkoff programs, Congress is
reinforcing the long-established position that these are producer-driven,
producer-funded, self-help programs," said Eric Schippers,
Executive Director of the Center for Individual Freedom.
In a March 5,
2002 letter to Senate Agriculture Committee Chairman Tom Harkin
(D-IA), the trade associations wrote: "This [government speech]
argument is now being made by the U.S. Justice Department in cases
that are pending in lower courts. Congress can help ensure the success
of this argument and empower farmers and ranchers to advertise
their own products by clarifying in statute that research
and promotion programs are a form of government speech." Conveniently
attached to the letter was draft language purportedly endorsed by
an unnamed "constitutional scholar," to be inserted into
effort was a desperate attempt by the 15 trade associations, and
the commodity promotion boards theyre fronting for, to safeguard
the more than $700 million a year of farmers and ranchers
money these programs take in to spend on generic advertising that
we believe is unconstitutional," said Schippers.
On June 25,
2001, the U.S. Supreme Court ruled in United States v. United
Foods that it violates the First Amendment for the government
to compel mushroom producers to pay for generic industry advertising.
Lawsuits are now pending over the beef and dairy checkoff programs.
In the wake of United Foods, the government
disregarding previous court rulings -- rolled out a novel argument
that checkoffs may be constitutional if construed as an extension
of the governments own speech.
of government speech immunity for checkoff programs has never been
accepted by any appellate court. Only two cases have dealt with
the issue; the U.S. Court of Appeals for the Third Circuit held
that the Beef Act, establishing the beef checkoff, is not government
speech. Likewise, the U.S. Court of Appeals for the Ninth Circuit
held that the almond checkoff program is not government speech.
sense dictates that if the speech in question is not attributed
to the government, is paid for by farmers, and is attributed to
farmers, it is not government speech," said Schippers. "In
fact, in the case of beef, the USDA food pyramid -- which is
government speech -- warns us not to eat too much beef."
Schippers, even if the speech in question is viewed as government
speech, it would still be subject to the same First Amendment protections
as mandatory support for third-party speech. First Amendment jurisprudence
prevents the government from compelling individuals to subsidize
the expression of certain views with which they disagree.
1998, the Center for Individual Freedom is a non-partisan, non-profit
organization with the mission to protect and defend individual freedoms
and rights guaranteed by the U.S. Constitution. The Center is assisting
in lawsuits filed by independent beef ranchers against the beef
checkoff, and by a Pennsylvania family of dairy farmers against
the dairy checkoff. Copies of the legal briefs may be read online