The Dairy Trade Coalition
   Saving the Spotted Cow for Generations to Come

There are fourteen instances where the First Amendment free speech issue was raised in a lawsuit involving agricultural promotion and research programs. This represents nine different programs and five different federal circuit courts. Two cases reached the U.S. Supreme Court, one case reached the California Supreme Court, seven cases are pending, with two in USDA administrative adjudication, and one has just been decided by the U.S. District Court in South Dakota, Northern Division.

Of the six cases that have ended, five were decided on the merits and all five courts found no First Amendment violation. However, all five cases were decided prior to the United Foods decision. In the pork case, the central issue was not the First Amendment, and the court never reached a decision on the constitutionality of the program after the plaintiffs settled with USDA.

The Frame case against the beef promotion and research board was the first time the free speech argument was used. The plaintiff also alleged other constitutional violations such as takings and due process. All of the constitutional arguments were rejected by the Third Circuit, and the beef program was allowed to continue.

U.S. Supreme Court reached opposite conclusions in the two cases it heard. The first case, decided in 1997, held that the California state promotion program for nectarines, plums and peaches did not violate the free speech rights of producers because the promotion program is "germane" to a greater Federal regulation scheme that displaced competitive behavior among producers. The second case, decided in 2001, took the opposite position in stating that the assessment for promotional activities on mushroom producers violated the First Amendment because Federal regulations had not displaced competitive behavior among mushroom producers.

The mushroom program has since been amended in light of the Supreme Court decision. Mandatory assessment now funds research activities only while voluntary contribution are sought for promotional activities. The mandatory assessment rate was reduced slightly. In December, 2001, the Justice Department requested the U.S. District Court in Jackson, Tennessee to reopen the case.

The Gallo case against the dairy promotion program and the Gerawan case against the California plum promotion program have been ongoing for many years. The Gallo case reached the Ninth Circuit in 1999 and was rejected for failure to exhaust administrative remedies. The Gerawan case was decided by the California Supreme Court in 2000. The court held that the free speech rights under the California Constitution was implicated in the case, but not the First Amendment. The case was remanded back to the lower court to consider California constitutional arguments.

In the only case decided after United Foods, the U.S. District Court in South Dakota, Northern Division declared the beef checkoff program to be unconstitutional under the First Amendment. Under the ruling, the beef board will be prohibited from collecting any more assessments starting July 15, 2002. This decision is almost certain to be appealed by the government to the Eighth Circuit.

Two cases have been filed at the District Court level– Cochrane and Charter. Both of these cases are assisted by the Center for Individual Freedom, a conservative constitutional "watch-dog" group based in Alexandria, Virginia. A hearing had been held for the Charter case on the cross-motions for summary judgment while the Cochrane case is at the initial phase of discovery and motions. Two other cases challenging the honey and watermelon programs are pending in USDA administrative proceedings.

Case cites:

Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997).
United States v. United Foods, Inc., 533 U.S. 405 (2001).
 

U.S. Circuit Court

U.S. v. Frame, 885 F.2d 1119 (3^rd Cir. 1989).
Cal Almond v. USDA, 192 F.3d 1272 (9^th Cir. 1999).
Nature’s Dairy v. Glickman, 173 F.3d 429 (6^th Cir. 1999).
Gallo Cattle Co. v. California Milk Marketing Board, 167 F.3d 1247 (9^th Cir. 1999).
Goetz v. Glickman, ____ F.3d ____ (10^th Cir. 2001), 2001 WL 401594.

Livestock Marketing Association v. USDA, cite unavailable
California Supreme Court
Gerawan Farming, Inc. v. Lyons, 101 Cal Rptr. 2d 470 (Cal. 2000).