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Striking down key provisions of the Dairy Act as unconstitutional, the Court of Appeals for the 3rd Circuit has ruled that the government cannot require dairy farmers to subsidize the “Got Milk?” promotion program because such “compelled speech” violates the First Amendment. In Cochran v. Veneman, a unanimous three-judge panel, led by Senior Judge Ruggero Aldisert, rejected the government’s argument that compelling support for the ad campaign was justified by its interest in increasing the demand for an agricultural product and in decreasing its obligation to purchase dairy products under price support programs. In the suit, plaintiffs Joseph and Brenda Cochran of Westfield, Pa., argued that the Dairy Act violates their First Amendment rights by compelling them to subsidize generic advertising that promotes milk produced by methods they view as wasteful and harmful to the environment. The Cochrans said in the suit that their dairy uses traditional farming methods to produce superior milk and that they object to paying up to $4,000 per year to support a generic ad campaign that “denies there is any difference in milk.” In the “Got Milk?” ads, celebrities such as the Backstreet Boys, boxer Oscar de la Hoya, tennis star Pete Sampras, and comedienne Whoopi Goldberg are pictured sporting a “milk mustache” along with a personal message about the value of drinking milk. The Cochrans’ claims were rejected in March 2003 when U.S. District Judge John Jones III of the Middle District of Pennsylvania ruled that the U.S. Department of Agriculture has the right to require dairy farmers to help fund the ads since they are “part of a larger regulatory scheme affecting the sale and production of milk.” The Dairy Act, enacted in 1983, authorizes the secretary of agriculture to establish a program for the “advertisement and promotion of the sale and consumption of dairy products and for research projects related thereto.” The law requires every milk producer to pay a mandatory assessment of 15 cents per hundredweight of milk sold to finance the promotional programs and the Dairy Board’s administration of them. The Cochrans’ lawyer, Steven Simpson of the Institute for Justice in the District, says the ruling was a victory for the First Amendment. “The court made clear that just because an industry is regulated doesn’t mean that its members lose their First Amendment rights,” Simpson says. “Speech wouldn’t be free if government could require people to convey officially sanctioned messages. The same principle applies to compelling people to pay for speech with which they disagree.” Shannon P. Duffy is the federal courts reporter at The Legal Intelligencer, the American Lawyer Media newspaper in Philadelphia, where a version of this article first appeared.

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