November 01, 2003

Law - 6th Circuit Upholds District Court's Ruling that Pork Checkoff Program is Unconstitutional

An editorial in the NY Times today lauds a decision of the 6th Circuit last week upholding a federal district court ruling that the pork checkoff program is unconstitutional. The checkoffs, as described by the Times, are "the fees collected from farmers to pay for generic advertising like the familiar 'Got Milk?' and 'Pork: The Other White Meat' campaigns. The so-called checkoffs are mandated by the federal Agriculture Department but administered by industry groups." The Times continues:

In reaching its judgment, the appeals court cited the Supreme Court, which ruled in 2001 that forcing mushroom growers to participate in a checkoff program violated their First Amendment rights by compelling them to express a message with which they did not agree. * * *

What makes this battle over checkoffs especially heated is not just the millions of dollars at stake. It is the fact that the checkoff issue calls attention to the radical split between large and small farmers. Since the mid-1980's, when commodity promotion programs began, the concentration of farming in fewer and fewer hands has increased sharply, especially in the hog business. It is hard for a small farmer to justify giving up any of his earnings to help pay for advertising that disproportionately benefits gigantic corporate farms. If the U.S.D.A. valued small farmers, as it claims, it would accede to the courts, not to the pressure of industry groups.

District Judge Richard Enslen's October 25, 2002 opinion responds to the "government speech" argument with this statement:
[T]he instant case involves mandated fees which are directed toward a discrete occupation (hog producers) and which fund speech as to which some producers have sincere philosophical, political and commercial disagreements. Even aside from the important political and philosophical objections to such speech, the commercial interests of objecting producers to such speech is ample. In days of low return on agricultural, the decision of an individual farmer to devote funds to uses other than generic advertising are very important. Indeed, the frustration of some farmers are likely to only mount when those funds are used to pay for competitors’ advertising, thereby depriving the farmer of the ability to pay for either niche advertising or non-advertising essentials (such as feed for livestock). This is true regardless of whether objecting farmers are correct in their economic analysis that the assessments and speech do not sufficiently further their own particular interests. In short, whether this speech is considered on either philosophical, political or commercial grounds, it involves a kind of outrage which Jefferson loathed. The government has been made tyrannical by forcing men and women to pay for messages they detest. Such a system is at the bottom unconstitutional and rotten.

For these reasons, the Court concludes that the mandated system of Pork Act assessments is unconstitutional since it violates the Cross-Plaintiffs’ rights of free speech and association.

Access Judge Enslen's 33-page opinion and order here. The 6th Circuit's ruling is available here. Some quotes:
The United States District Court for the Western District of Michigan declared the Pork Promotion, Research and Consumer Information Act (the “Pork Act”), 7 U.S.C. § 4801 et seq., and the Pork Promotion Order issued thereunder, 7 C.F.R. § 1230, unconstitutional and issued an injunction terminating all activities under the Pork Act and the Pork Promotion Order. The Act mandates that pork producers and importers (collectively “pork producers”) pay assessments, known as “checkoffs,” to fund promotion, research, and consumer information to benefit the pork industry.

The district court held that requiring the payment of these assessments violates the First Amendment rights of pork producers by compelling them to subsidize speech with which they do not agree. Appellants argue that: (1) the assessments subsidize a government program that advances the government’s policy of promoting pork consumption, and, therefore, are immune from First Amendment scrutiny; (2) even if not part of a government program, the assessments are not compelled speech; (3) the Pork Act program that requires the collection of assessments, is a lawful restraint on commercial speech; and (4) even if the use of assessments for promotion under the Pork Act violates the First Amendment, the injunction ordered by the district court is overly broad in that it eliminates funding for programs that are constitutional. For the reasons stated below, we AFFIRM the grant of summary judgment by the district court.

The Circuit Court addresses the "government" speech argument thusly: "In sum, 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."

Finally, some other coverage. AgriNews, covering Minnesota and Northern Iowa, has a story containing these quotes:

"The success of the pork checkoff has been well documented," said Ogden, Iowa, pork producer Craig Christensen, [National Pork Board] president. "We all invest in the checkoff and the checkoff delivers, especially for pork producers."

But Minnesota pork producer Rich Smith disagrees. "The pork checkoff has forced family farmers to pay into a program that supports corporate concentration, industrialization and the factory farm system of livestock production, which drives family farmers out of business," Smith said. "The end of the checkoff is long overdue.", a Washington-based interest group, has background on related checkoff cases (mushrooms and beef).

Posted by Marcia Oddi at November 1, 2003 06:03 PM