U.S. Supreme Court Vacates “Got Milk?” Decision; Remands to 3rd U.S. Circuit for Further Proceedings

John Kramer
John Kramer · May 31, 2005

Washington, D.C.—The U.S. Supreme Court today vacated a decision of the 3rd U.S. Circuit Court of Appeals in Johanns v. Cochran, a case that declared the law that creates the “Got Milk?” advertising campaign unconstitutional, and remanded the case to the lower courts for further proceedings consistent with the Court’s recent decision in Johanns v. Livestock Marketing Association, which declared a similar law constitutional. In Livestock Marketing, the Supreme Court concluded that the “Beef, it’s what’s for dinner” advertising campaign was “government speech” and could not be challenged on the ground that beef producers were required to pay for the ads even when they disagreed with the message. The Court left open the possibility that producers could challenge the law when the message is improperly attributed to them, but sent the case back to the lower courts for further proceedings on that question.

“While we are disappointed by the Supreme Court’s decision in Livestock Marketing, we will continue to pursue every available option in challenging this fundamentally unjust law,” said Steve Simpson, a senior attorney with the Institute for Justice, who represents dairy farmers Joseph and Brenda Cochran in their challenge to the Dairy Promotion Act. “Powerful special interests should not be permitted to speak for an entire industry, and the government should not be permitted to pass off as a private message a message that is largely funded with coerced private money and what it now claims is ‘government speech,’” Simpson continued. Advertisements under the Dairy Promotion Act are generally attributed to “America’s Dairy Farmers” even though many dairy farmers, like the Cochrans, object to the ads.

The Cochrans’ lawsuit is one of several across the nation that pit 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.

“Courts are telling agricultural producers that as long as the government controls their prices, production, terms of sale and so on, it may as well control their free speech, too,” Simpson said. “But two wrongs don’t make a right; restricting one kind of freedom—economic liberty—isn’t license to destroy another—free speech.”