June 2, 2017

In March, IJ won a free speech victory at the 11th U.S. Circuit Court of Appeals with implications that will reverberate around the nation. Government agencies thought they had the power to change the dictionary. The Florida Department of Agriculture certainly believed that to be true. But our client Mary Lou Wesselhoeft disagreed. And with IJ’s help, she won her standoff with a regulator run amok.

All Mary Lou wanted to do was tell the truth. Mary Lou is a dairy farmer who subscribes to an all-natural philosophy, which is why her customers love the products she sells. Her business, Ocheesee Creamery, sells pasteurized dairy products without additives. And her products include skim milk. Mary Lou just wanted to call her skim milk what it was.

But Florida tried to change the dictionary. Florida had decided that the product known as “skim milk” actually had three ingredients, and only the first ingredient was skim milk. The other two ingredients were vitamin additives. Skim milk without the additives was legal to sell, but it could not be called skim milk.

This problem is not unique to Florida. Government agencies all over the nation are constantly redefining terms. Whether it is “organic,” “artisanal” or, in this case, “skim milk,” the government assumes that is the final authority on our language and can change words when it wants.

As Mary Lou recognized, this makes no sense. When the government told her that she could not call her skim milk “skim milk,” she “thought they had fallen and bumped their heads.” But the government did not care what Mary Lou thought, even though it admitted that no one had ever been confused, misled or harmed by anything she had ever sold.

The government’s arrogance was on full display during the oral argument. One of the federal appellate judges asked the government’s lawyer, “Can the state, consistent with the First Amendment, take two words out of the English language and compel its citizens to use those words only as the government says?” The government lawyer’s chilling response: “Yes.”

Thankfully, we were able to convince the court that the First Amendment does not permit this Orwellian approach. The court adopted our reasoning in its ruling and warned that under the government’s analysis,

All a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals. Then, all usage in conflict with the regulatory agenda would be inherently misleading. … Such reasoning is self-evidently circular.

As a result, agencies all over the United States must now take notice before they try to tell us what our own words mean. Unlike the government’s labeling laws, the precedent we created is clear: Business owners have a right to tell the truth, and the government does not have the power to change the dictionary. As long as consumers understand what a business is saying, then that business is free to call its product what it is. We are all a little freer now, simply because Mary Lou insisted on telling the truth and IJ was there to help her fight back.

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