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Every day the ads ask us, “Got milk?” Is this speech or commerce at work? For those who fund the ubiquitous ad campaign, critical constitutional protection hangs on the answer. For years, federal courts, guided by the Supreme Court, have tried to find clear distinctions in the fuzzy overlap between speech and commerce. Sometimes they conclude that spending money to convey information is speech, worthy of all the majestic protections of the First Amendment. And sometimes they dismiss it as “merely” economic activity, which government has broad power to regulate. These efforts to divide the indivisible have been strained and often unsatisfactory. The Supreme Court itself has drawn lines in the areas of campaign finance reform (last month), union dues, bar fees, and agricultural promotional programs to less than universal acclaim. Now the issue is back before the federal courts in the context of the “Got milk?” campaign. Like many other agricultural industries, the milk producers of America advertise as a group under a statutorily mandated program. But some milk producers are arguing that free speech means they can’t be forced to pay for any more celebrities with a milk mustache. Everybody Talk Over the years, the federal government and many states have passed laws creating marketing programs for commodities deemed important to the national or state economies. Generally referred to as industry “self-help” laws, these statutes provide for the appointment of boards composed of commodity producers who create and oversee generic advertising and other marketing efforts. Besides the “Got milk?” campaign, some of the boards’ better-known efforts include “Ahh, the power of cheese,” “Beef, it’s what’s for dinner,” and “Pork, the other white meat.” Federal programs have also existed for honey, watermelons, fresh-cut flowers, peanuts, popcorn, and pecans, to name just a few. The catch is that all producers of the covered products must pay for these advertising efforts whether they want to advertise or not and whether they agree with the message the ads convey or not. Proponents of the programs claim that the generic ads increase consumer demand, but dissenting producers complain that compelling them to pay for advertising violates their free speech rights. As a result, producers have challenged programs for beef, pork, milk, avocados, California grapes, Washington apples, and Louisiana alligator skins. On Jan. 12, the U.S. Court of Appeals for the 3rd Circuit hears Cochran v. Veneman, the case challenging the milk promotion program under the Dairy Production Stabilization Act of 1983. The plaintiffs, Joseph and Brenda Cochran (who are represented by the Institute for Justice), are “traditional” dairy farmers in Pennsylvania. Similar to organic farmers, traditional dairy farmers focus as much on using environmentally friendly production methods as they do on producing large volumes of milk. Thus they shun bovine growth hormone and allow their cows more room to graze and to move around. Traditional farmers like the Cochrans believe that their methods produce milk that is healthier for the consumer and better for the environment. Thus they have every reason to distinguish their product from that produced by other methods, and they object to generic ads suggesting that all milk is the same. They Won’t Say The U.S. Supreme Court has long held that the right to free speech implies the right to remain silent. In the late 1970s, it applied this principle to a union’s use of mandatory fees for political activities. In Abood v. Detroit Board of Education (1977), the Court held that although a state could require even nonunion public school teachers to pay for a union’s collective bargaining activities, it could not require them to pay for speech, especially political advocacy, unrelated to the collective bargaining. A few years later, in Keller v. State Bar of California (1990), the Court applied the same principle to a state bar, holding that compelling lawyers to pay for activities that maintain the standards of the profession was constitutional, but compelling them to pay for political lobbying and advocacy was not. The principle, in essence, is that government may compel individuals to pay for group activities when the justification is to better regulate commercial activities. But the government may not force individuals to pay up when the justification is simply to produce speech for a purpose the government favors. Fruits and Vegetables In practice, that principle has often proved difficult to apply, especially in the context of agricultural promotion programs. Indeed, the Supreme Court has dealt with the constitutionality of these programs twice in the past six years, with opposing results. In Glickman v. Wileman Bros. & Elliott Inc. (1997), the Court upheld a federal law under which California peach and nectarine growers were required to pay for generic ad programs. In United States v. United Foods Inc. (2001), the Court struck down a different federal law under which mushroom growers were required to do exactly the same thing. The distinction for the Court turned not so much on the advertising programs themselves but on the statutory context in which the programs functioned. The advertising program in Glickman was authorized under the Agricultural Marketing Agreement Act, a 1937 law that collectivized the market for California peaches and nectarines (as well as other products). Because the advertising program was part of this collectivized market and, indeed, financed by the same assessment that went toward administering the market as a whole, the Court treated it like any other economic regulation, upholding the program with little scrutiny. The Court even suggested that requiring producers to fund the advertising at issue did not implicate their speech rights at all. By contrast, the Mushroom Promotion, Research, and Consumer Information Act at issue in United Foods was a stand-alone law, enacted in 1990, whose sole purpose was to create a promotional program for mushrooms. The Court thus saw the law for what it was � a regulation of speech � and struck it down under the rationale of Abood and Keller, reasoning that without any justification independent of compelling individuals to fund speech, the law obviously violated the First Amendment. The Glickman and United Foods decisions illustrate the problem inherent in maintaining utterly distinct standards for restrictions on speech versus restrictions on economic liberties. There was no reason in principle to treat the advertising programs themselves any differently. Both required producers to finance generic advertising. But neither compelled the producers themselves to speak or prohibited them from also running their own independent ads. The different outcomes ultimately turned on how the Court chose to characterize the advertising programs. In Glickman, it emphasized money and commerce, and disposed of the case easily as one involving mere economic regulation. In United Foods, it emphasized speech and struck down the law as a violation of the First Amendment. But the practical impact of the two laws on the plaintiffs was the same. Both had to pay for advertising they opposed (although the Glickman Court was clearly suspicious of the plaintiff’s claimed disagreement with the message of the ads). Why protect the right to withhold support for speech in one case and not the other? Liberty’s Hierarchy There is no good answer to this question, at least not one that relates to the nature of the plaintiffs’ own activity in these two cases. As the Supreme Court itself has recognized, money and speech are inextricably intertwined. To engage effectively in the latter nearly always requires expenditures, often significant, of the former. Contending that speech is separable from money is rather like saying that speech is separable from pencils, paper, typewriters, computers, printing presses, or broadcasting equipment. Yet these sorts of untenable distinctions arise out of the courts’ own attempts to maintain a gulf between favored liberties, such as speech, and disfavored liberties, such as economic and property rights. In cases where rights overlap � where the same action can be considered speech or commerce � courts face an impossible choice: give too much protection to the right to spend money by treating it like the right to free speech, or give too little protection to the right to free speech by treating it like the right to spend money. As a result, the decisions in cases like Glickman, United Foods, and, indeed, McConnell v. Federal Election Commission all too often depend more on judicial mood swings than on any principled evaluation of the activity at issue. Unfortunately, the mood of the Supreme Court � or any court � is a thin reed on which to hang constitutional rights, as the current fad for removing money from politics and that fad’s impact on five members of the McConnell Court demonstrates. In the Cochrans’ case, the District Court upheld the milk promotion program, even though it is virtually identical to the mushroom promotion program struck down in United Foods. Because milk production in general is more heavily regulated than mushroom production, the trial court chose to treat the mandated milk promotion as one more economic regulation rather than a speech regulation. The decision is wrong, and its implications for free speech are troublesome at a time when economic regulation is so prevalent. Yet it is not surprising: When the Supreme Court allows First Amendment freedoms to turn on how, rather than what, Congress has decided to regulate, lower courts will all too easily find ways to favor regulation over liberty. The ultimate answer to this dilemma is to abandon the distinction between so-called fundamental and nonfundamental liberties and to recognize that liberty is indivisible. The Framers did. They wrote the Ninth Amendment into the Bill of Rights to make clear that the enumeration of certain rights in the Constitution should not be construed to “deny or disparage” those not enumerated. As a legal matter, eliminating the distinction between liberties would mean raising judicial protection of property and economic rights to some level greater than complete deference to the will of legislatures. Of course, this deference is the cornerstone of the modern regulatory state, so the Supreme Court is unlikely to abandon it anytime soon. For now, courts should at least halt the creep of economic regulation into the realm of speech. In cases that blur the distinction between rights, the widest berth should be given to the exercise of recognized fundamental liberties. Got that? Steve Simpson is an attorney with the Institute for Justice in Washington, D.C. (www.ij.org). The institute represents Joseph and Brenda Cochran in the 3rd Circuit case discussed. Simpson can be reached at [email protected].

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