Dairy Farmers & IJ Win Challenge to “Got Milk?” Ads

John Kramer
John Kramer · February 24, 2004

Washington, D.C.—A unanimous U.S. Court of Appeals for the 3rd Circuit today declared unconstitutional the government-compelled speech program that forced dairy farmers to help pay for those ubiquitous “Got Milk” advertisements. The lawsuit had been brought to the 3rd Circuit by the Washington, D.C.-based Institute for Justice on behalf of Joseph and Brenda Cochran from Westfield, Pa.

The Court stated in its 21-page opinion, “[G]overnment may not compel individuals to support an advertising program for the sole purpose of increasing demand for [a] product.” It further stated, “[P]romotional programs such as the Dairy Act seem to really be special interest legislation on behalf of the industry’s interest more so than the government’s.” The Court concluded, “Although the dairy industry may be subject to a labyrinth of federal regulation, the Dairy Act is a stand-alone law and the compelled assessments for generic dairy advertising are not germane to a larger regulatory purpose other than the speech itself.”

“The Court made clear that just because an industry is regulated doesn’t mean that its members lose their First Amendment rights,” said Steve Simpson, a senior attorney with the Institute for Justice. “That is great news for free speech.”

The case pits the First Amendment against agricultural regulation and promises to have far-reaching consequences for free speech. 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 large-scale producers. This case will have major implications for the many similar programs promoting a wide variety of agricultural products such as “ahh, the power of cheese,” “beef, it’s what’s for dinner” and “pork, the other white meat” ad campaigns, to name just a few. Each of these is certainly a clever ad campaign, but the Cochrans’ lawsuit raises the question, “May the government force individual producers to pay for them whether or not they want to advertise their products and whether or not they agree with the advertising the programs fund?”

Today the federal court said the government may not.

Simpson said, “The U.S. Supreme Court long ago held that the First Amendment does not allow government to compel individuals to speak, just as it does not allow government to prevent them from speaking. Speech wouldn’t be free if government could require people to convey officially sanctioned messages. The same principle applies to compelling people to pay for speech with which they disagree.”