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Striking down key provisions of the Dairy Act as unconstitutional, the 3rd U.S. Circuit Court of Appeals 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 U.S. Circuit Judge Ruggero J. Aldisert, rejected the government’s argument that compelling support for the ad campaign was justified by the government’s 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 Tioga County 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 Dairy Promotion Program also operates an ad campaign promoting cheese, with commercials that share the tag line: “Ahh, the power of cheese.” The Cochrans’ claims were rejected in March 2003 when U.S. District Judge John E. 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.” Now the 3rd Circuit has reversed Jones, finding that his analysis of the two U.S. Supreme Court rulings on compelled commercial speech was flawed. Aldisert said the court’s task was to determine why the Supreme Court approved of the compelled speech in the first case but struck it down in the second. In the 1997 decision in Glickman v. Wileman Bros & Elliott, the justices rejected a constitutional challenge brought by California fruit growers who were similarly required to help fund generic ads. The court held that there was no free speech issue since the case presented nothing more than “a question of economic policy for Congress and the executive to resolve.” In doing so, the justices held that the growers were properly compelled by the secretary of agriculture to fund the generic advertising “as part of a broader collective enterprise in which their freedom to act independently is already constrained by the regulatory scheme.” The court noted that in addition to the advertising, the law also required California fruit tree growers to abide by uniform prices and imposed limits on the quality and quantity of tree fruit that could be marketed. But in 2001, the high court reached a different result in United States v. United Foods Inc., a case brought by handlers of fresh mushrooms that challenged a similar generic ad campaign. Distinguishing the case from Glickman, the justices held that the mushroom handlers had a valid claim of illegally “compelled speech” since the ads were not part of a broader regulatory scheme. “Here, for all practical purposes, the advertising itself, far from being ancillary, is the principal object of the regulatory scheme,” the high court said. Now the 3rd Circuit has ruled that the case of the dairy farmers more closely resembles the case of the mushroom growers than the fruit tree farmers. Aldisert found that the key distinction between the two decisions was the extent of regulation in Glickman that led the justices to view the fruit growers as something akin to a union or a bar association. “The court determined that the collective arrangement of the fruit tree farmers was similar to the union arrangement at issue in Abood v. Detroit Board of Education … and the bar association at issue in Keller v. State Bar of California,” Aldisert wrote. In Abood, the justices held that the infringement upon First Amendment association rights by compelled assessments for a union shop arrangement was “constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” Similarly, in Keller, the court held that the infringement on First Amendment association rights by requiring lawyers to pay bar association dues was justified by the state’s interest in regulating the legal profession and improving the quality of legal services. Aldisert said the Glickman court drew parallels between the facts of Abood and Keller and concluded that the compelled assessments for generic advertising of California tree fruit were ancillary to a comprehensive marketing program and, therefore, were “a species of economic regulation that should enjoy the same strong presumption of validity that we accord to other policy judgments made by Congress.” By contrast, Aldisert said, the United Foods court found that the Mushroom Act stood alone and that its compelled contributions for advertising were “not part of some broader regulatory scheme.” Instead, Aldisert said, the justices concluded that the advertising was itself the “principal object” of the Mushroom Act. The justices held that the Mushroom Act violated the First Amendment because it compelled expression “by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity.” Applying the teachings of the two cases, Aldisert found that the 3rd Circuit’s task was to determine whether the dairy producers are “bound together and required by the statute to market their products according to cooperative rules for purposes other than advertising or speech.” 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. Although the dairy industry is also subject to other federal regulations, Aldisert found that the “patchwork” of state and federal laws did not compare to the comprehensive regulations at issue in Glickman, Keller and Abood. “There is no association that all milk producers must join that would make the entire industry analogous to a union, an integrated bar or the collective enterprise at issue in Glickman,” Aldisert wrote. The Cochrans’ lawyer, Steven M. Simpson of the Institute for Justice in Washington, D.C., said 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 said. “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.”

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