“Got Milk?” Lawsuit Ends

John Kramer
John Kramer · September 15, 2005

Washington, D.C.—The 3rd U.S. Circuit Court of Appeals today affirmed the original district court decision in Cochran v. Veneman, which upheld the Dairy Promotion Act over a challenge under the First Amendment. The 3rd Circuit’s decision came on the heels of a decision by the U.S. Supreme Court in Johanns v. Livestock Marketing Association, which declared the nearly identical Beef Promotion Act constitutional. In both cases, producers challenged the laws as compelled speech because they required all producers to contribute to advertising programs with which they disagreed. The Supreme Court disagreed, however, concluding that the Beef Act financed the government’s own speech and was thus immune to challenge under the First Amendment. After its decision in the Beef Case, the Supreme Court vacated judgments of the various circuit courts that had struck down these agricultural promotion acts, and remanded to those courts for further proceedings. Although the 3rd Circuit originally agreed with the Cochrans that the Dairy Act violated their First Amendment rights, it has now ruled that the Supreme Court’s decision disposes of their challenge, effectively ending the case.

“This is a disappointing conclusion to the Cochrans’ courageous challenge to this unjust law,” said Steve Simpson, a senior attorney with the Institute for Justice, who represented dairy farmers Joseph and Brenda Cochran in the case. “The powerful special interests who championed these laws will come to rue the day they urged the government to control agricultural advertising. In the meantime, we will continue to fight compelled speech on other fronts.”

The Cochrans’ lawsuit was one of several across the nation that pitted the First Amendment against agricultural regulation. Although just about everyone has seen the “Got Milk?” ads on television and in print, most people do not know that under the federal Dairy Promotion Program dairy farmers are forced to pay for them. The Cochrans, for example, must pay approximately $4,000 a year from their thin operating budget for advertisements that obscure the distinctions between the Cochrans’ traditional farming and that of large-scale producers. Besides milk and beef, programs financing advertising for pork, avocados, Washington apples, and Louisiana pelts and skins have been challenged in recent years.

The federal government originally championed these laws as industry “self-help” programs, operated and controlled by private producers. In recent years, however, with First Amendment challenges mounting, the government argued that the laws were in fact government programs that promoted a government message. Unfortunately, the Supreme Court ultimately agreed.

“These cases illustrate the pernicious effects of government control over economic and property rights,” said Simpson. “If government can control the vital operations of your business, ultimately it will control what you say about that business as well. The only antidote to these laws is to champion liberty across the board.”