Checking Off Another Court

A federal appeals court declared the federal dairy checkoff program unconstitutional Tuesday concluding that forcing farmers to pay for generic advertising constituted compelled speech in violation of their First Amendment rights.

The public is probably most familiar with the dairy checkoff through the ubiquitous "Got milk?" and "Ahh, the power of cheese" commercials, which are paid for with program funds. Milk producers are obligated to pay for generic promotion of dairy products, under the program, which is funded through mandated assessments of 15 cents per hundredweight on any milk a producer sells. But the U.S. Court of Appeals for the 3rd Circuit ruled that such mandatory funding of the dairy checkoff violated the constitutional rights of independent farmers Joseph and Brenda Cochran because the program forced them "to subsidize speech with which they disagree[d]."

The Cochrans use "traditional" methods of dairy farming, which are less aggressive than commercial farming, eschew the use of the recombinant Bovine Growth Hormone and allow their cows more room to move and graze. For these reasons, the Cochrans believe their dairy farm provides for a cleaner environment, healthier cows, and superior milk. They objected to paying for the generic dairy commercials, which did not differentiate between how and where their milk was produced, and initially challenged the checkoff program in federal district court with the assistance of the Center for Individual Freedom.

For the appeal, the Institute for Justice provided legal assistance to the Cochrans, and the court agreed with them, holding that the "First Amendment protects the [Cochrans’] right to refrain from speaking and the[ir] right to refrain from association." The court went on to explain that "the government may not compel individuals to fund speech or expressive associations with which they disagree."

In making their ruling, the judges dismissed the argument that the dairy checkoff constituted "government speech" insulated from constitutional scrutiny. Specifically, the court noted that, "[o]n the dairy checkoff website, the government itself describes the Dairy Promotion program as a non-governmental program, financed and directed by dairy farmers."

The 3rd Circuit’s rejection of the "government speech" argument is especially important in the ongoing checkoff litigation because the government has turned to labeling the checkoff advertising "government speech" in order to avoid constitutional scrutiny. In fact, "government speech" will likely be the most important issue argued before the U.S. Court of Appeals for the 9th Circuit on March 31, 2004, in a challenge to the beef checkoff program brought by the Center for Individual Freedom.

The government will now have to decide whether to appeal the dairy checkoff decision to the U.S. Supreme Court. But it is likely that the 3rd Circuit’s decision will be appealed because the federal government has already petitioned the High Court to review another checkoff decision, in which the U.S. Court of Appeals for the 8th Circuit struck down the beef checkoff. Thus, for the time being, checkoff opponents can check the 3rd Circuit off the judicial charts, with all signs that the litigation is heading to the highest court in the land.

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