From The Center

In the letter reproduced here, the Center for Individual Freedom refutes the disingenuous efforts of the agricultural trade associations.

Re: Proposed "Farmer Empowerment Act of 2002"

Dear Chairman Harkin:

It has recently come to our attention that 15 agricultural trade associations, purportedly on behalf of farmers’ "interests," sent a letter to the House-Senate Conference Committee urging it to adopt a statutory amendment to H.R. 2646 that would declare all agricultural commodity checkoff-related advertising and promotion as "government speech."

On behalf of the Center for Individual Freedom, I am writing to urge you to reject this blatant attempt to influence the outcome of pending litigation over these controversial programs.

The Center has a long history of fighting mandatory agricultural checkoffs. For us, this is a pure First Amendment issue of compelled speech. First Amendment jurisprudence prevents the government from compelling individuals to subsidize the expression of certain views with which they disagree. For the hardworking family ranchers, farmers and dairy producers with whom we’ve joined forces to put an end to these unconstitutional assessments, this issue is also about their livelihood.

The twelve largest commodity promotion boards spend more than $700 million a year of farmers’ and ranchers’ money on programs that may be unconstitutional. Those boards’ true "interests" are conveniently represented by many of the associations who signed the conference committee letter.

On June 25, 2001, the U.S. Supreme Court ruled 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 checkoff and a family of dairy farmers and the Center will soon file suit over the dairy checkoff. In the wake of United Foods, the government rolled out a novel argument — rejected by the only circuit court ever to have ruled on it — that checkoff programs may be constitutional if construed as an extension of the government’s own speech. The lobbying campaign by the 15 trade associations is clearly meant to help that argument along. However, it will be difficult for them to explain away the long-established position that these are "producer-driven," self-help programs.

The novel defense of government speech immunity for checkoff programs has never been accepted in any appellate court and would not save the program under the First Amendment in any event. Where individuals are compelled to subsidize the expression of viewpoints with which they disagree, the Center has long maintained that the First Amendment test is the same regardless of whether the speaker being subsidized is a third-party favored by the government or the government itself. The Supreme Court has never held that government speech is immune from First Amendment scrutiny.

We agree with the agricultural trade associations that the Supreme Court’s United States v. United Foods decision "has put all research and promotion programs under a cloud of doubt." The current degree of uncertainty surrounding these programs does not, however, mandate Congressional action to preserve such programs in their current form. It would be premature for Congress to circumvent the judicial review that is warranted under these programs. Unless Congress wishes to nationalize or collectivize the agricultural industries, Congressional action to proclaim the advertisements as government speech does nothing more than push the constitutional bounds of the First Amendment. It is obvious that alternative forms of regulation that would not involve any restriction on speech — such as voluntary or mandatory collectivization of production and marketing itself — would be more likely to achieve the proponents’ misconceived goal of enhancing the collective power in the market of small individual farmers.

If Congress wants to act to preserve the benefits of collective advertising, while at the same time respecting the First Amendment, it could do so by amending the existing laws to limit such collective speech to those agricultural producers who have voluntarily entered into collective production and sales arrangements, for example, through agricultural cooperatives already authorized under current law. That change would allow for the economies of scale touted by proponents of the current system without forcing a collective regime upon those who wish to remain independent in the market, in the true spirit of the family farmer and the independent rancher. It would also avoid any "free-rider" concerns by allowing voluntary co-ops to brand their collective advertising while at the same time allowing independent producers to compete with such co-ops based on the unique attributes and quality of their products.

Review of the court decisions addressing the constitutionality of the checkoff programs would confirm for Congress our belief that the collectivized message-generating function of these checkoff programs infringes on producers’ First Amendment rights far more than necessary to achieve any supposed government interest in product promotion. The existing programs are far more repressive than one that allowed all producers to choose the content of the promotions supported by their checkoff dollars — either by direct advertising themselves or through voluntary association with other producers having shared viewpoints on what to say and how to promote their products. Forcing independent farmers not only to subsidize their competitors through generic ads, but also through branded ads expressly touting those competitors, is a stunning burden on free speech.

It is particularly significant as well that the speech generated under the checkoff programs does not express the views of the government as representative of the citizens, but rather the view of one segment of the population, who may or may not agree with the advertisement. The speech that producers are forced to subsidize through checkoff programs is not government speech at all, but rather government-facilitated private speech.

As for the supposed editorial oversight by the USDA of advertising messages, censorial control does not make the government the speaker. If it did, the government would then become the speaker every time it imposed viewpoint restrictions on communications in a government-created forum and vast swaths of First Amendment jurisprudence would be meaningless. Speech emerging from government review does not become the government’s simply because it gets to say whether or not a particular message is appropriate.

We urge you to reject this desperate attempt to bolster a novel and dubious legal theory currently before the courts, and we would welcome the opportunity to debate the constitutionality of the proposal with the anonymous "distinguished Constitutional scholar" who endorsed the draft language sent to you by pro-checkoff advocates.

Sincerely,

 
D. Eric Schippers
Executive Director

cc: House-Senate Conference Committee