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Center Issues Press Release

Congress passed $173 billion, 10-year Farm and rejects agricultural
trade associations
"back-door" ploy.





C.e.n.t.e.r ...F.o.r...I.n.d.i.v.i.d.u.a.l... F.r.e.e.d.o.m


Contact: Eric Schippers

Ph: 703-535-5836

May 8, 2002

Congress Rejects Back-Door ‘Government Speech’ Ploy by Agricultural Trade Associations

ALEXANDRIA, 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."

"In rejecting this blatant attempt to influence the outcome of pending litigation over the nation’s 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 the bill.

"This lobbying effort was a desperate attempt by the 15 trade associations, and the commodity promotion boards they’re 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 government’s own speech.

The defense 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.

"Common 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."

According to 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.

Founded in 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 at

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