by Alan Guebert

Milk?s mustache wiped off

In another checkoff-shattering opinion unveiled Tuesday, the US Court of Appeals for the Third Circuit ruled the Dairy Promotion Stabilization Act of 1983 unconstitutional on grounds it violates an individual?s First Amendment rights to free speech.

If you?re keeping score at home or on the farm, the Feb. 24 decision makes federally mandated commodity checkoffs zero-for-three in federal appeals courts since last October. The milk checkoff now joins it half-sisters--the beef and pork checkoff--in the half-dead state of legal limbo land.

The milk case, titled Cochran v Veneman, arose when Joseph and Brenda Cochran, a Tioga Country (PA) dairying couple, alleged the Dairy Act?s checkoff ?compelled them to subsidize speech with which they disagreed ...?

The Cochrans operate a 200-acre, 150-cow traditional dairy farm: low intensity management, rotational grazing, no production-enhancing hormones. According to their lawsuit, they ?believe that their methods result in healthier cows, a cleaner environment and superior milk.?

That belief, however, ran smack into the mandated 15-cents per hundredweight dairy checkoff. The Cochrans objected to paying the assessment because, according to court documents, ?it conveys a message that milk is a generic product that bears no distinction where and how it is produced, and thereby forces them to subsidize speech with which they disagree.?

The argument is identical to that which sunk the red meat checkoffs earlier: federally-chartered checkoffs violate an individual?s right to free speech and right to association by compelling them to participate even though they see no personal benefit in doing so.

And just like the beef and pork cases, USDA and Justice Dept. attorneys argued in Cochran that federal checkoffs are ?government speech,? a type of speech not protected by the First Amendment.

And just like the beef and pork cases, USDA and Justice Dept. attorneys got their heads handed to them by a unanimous court that strongly disagreed with that reading of the Constitution.

But the Cochran case held two elements that neither beef nor pork had. First, the dairy farmers lost the case in the lower court when USDA successfully argued that the dairy industry was highly controlled by federal orders--milk orders, pricing formulas and the like--and the checkoff was just another one such order.

The appellate court disagreed, painstakingly going through all the relevant orders to find that ?the Dairy Act is a stand-alone law that was not passed as part of any other federal dairy regulatory scheme.?

That point-by-point analysis also led it to conclude that the checkoff was funded, operated and managed by ?private milk producers.? That demolished USDA?s ?government speech? defense; the checkoff was entirely outside government.

Secondly, in reversing the lower court?s decision and ruling the milk checkoff sour, the Third Circuit found itself back on familiar ground.

In a 1989 Pennsylvania beef checkoff case known as Frame, the court upheld the constitutionality of federal commodity checkoffs because, the court noted, ?the government?s interest in maintaining and expanding beef markets proves ... compelling.?

One appellate judge in that decision, Judge Sloviter, however, dissented and wrote her own opinion which flatly stated that ?I doubt that the type of compelled speech at issue here can be justified on any basis.?

In the 15 years since that she penned that view, checkoff cases have come and gone in federal courts. As each moved, the body of law surrounding checkoffs expanded. In the biggest case, US v United Foods in 2001, the US Supreme Court ruled the mushroom checkoff unconstitutional.

Throughout that period Judge Sloviter watched the legal evolution from her perch on the Third Circuit bench where--not incidentally--she remains today.

And guess who wrote the Third Circuit opinion that declared the federal milk checkoff unconstitutional? Hey, what goes around comes around.

Or, as several checkoff opponents are noting this week, ?Got the First Amendment??

News, views and all those blues