In ruling the Pork Act unconstitutional, the appellate court found pork to be more like mushrooms than peaches... Pork: The Other Checkoff Victory

Members of the Campaign for Family Farms ("CFF") and many other independent hog farmers are as happy as pigs in …, well, you know what we mean. This week, a three-judge panel of the United States Court of Appeals for the 6th Circuit upheld a lower court ruling that the national pork checkoff program is unconstitutional because the payment of the mandatory assessments violates the First Amendment rights of pork producers by compelling them to subsidize speech with which they do not agree.

In ruling the Pork Act unconstitutional, the appellate court found pork to be more like mushrooms than peaches, a pivotal determination under U.S. Supreme Court precedent. Two years ago in United States v. United Foods, 533 U.S. 405 (2001), the Court ruled: "Just as the First Amendment may prevent the government from prohibiting speech, the First Amendment may prevent the government from … compelling certain individuals to pay subsidies for speech to which they object." In declaring the mushroom checkoff unconstitutional, the United Foods Court took significant strides to undo some of the damage caused by its much-criticized 1997 decision in Glickman v. Wileman Brothers & Elliott, Inc. In Glickman, the Court ruled that the producers of California tree fruits were part of a larger collective marketing program in which the objectors had given up their market autonomy.

Going one step further than the Court had to in the United Foods mushroom case, this court had to determine whether subsidies generated under the Pork Act constitute government speech – thereby immune from First Amendment scrutiny, or private party speech. In resolving this novel argument, the court concluded that "pork industry’s extensive control over the Pork Act’s promotional activities prevents their attribution to the government" as does the fact that "the costs and content of the speech in question are almost completely the responsibility of members of the pork industry. The First Amendment does not lie dormant merely because the government acts to consolidate and facilitate speech that is otherwise wholly private."

The final axe fell on the mandatory hog assessment when the court found inapplicable the government’s argument that this case should be resolved under relaxed scrutiny of commercial speech analysis provided for by Central Hudson. "The Pork Act does not directly limit the ability of pork producers to express a message; it compels them to express a message with which they do not agree," the court opined. "Even assuming that the advertising funded by the Act is indeed commercial speech, the more lenient standard of review applied to limits on commercial speech has never been applied to speech – commercial or otherwise – that is compelled. … It is one thing to force someone to close her mouth; it is quite another to force her to become a mouthpiece."

In challenging the nearly 20 year-old pork checkoff program, CFF argued that "that the advertising funded by the Pork Checkoff Program favors those who sell processed meats, misrepresents the safety and desirability of large commercial farming, and downplays the benefits of family farms." Under the checkoff program, all hog farmers contribute 40 centers per $100 of hogs sold. The National Pork Board, responsible for creating pork promotions, research and education with the checkoff dollars, received roughly $57.4 million from the program in 2001.

The Center intends to provide a copy of the Sixth Circuit’s decision to the U.S. Court of Appeals for the Ninth Circuit, where oral arguments will likely take place later this fall. In that case, the Center co-represents Montana cattle ranchers and hundreds of other independent cattle ranchers challenging the constitutionality of the mandatory beef program, responsible for messages such as: "Beef. It’s what’s for dinner."

For more information on the Center’s ongoing battle over mandatory agricultural promotion programs, click here.

October 24, 2003
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