Alan Guebert is an Illinois farm journalist.
That great heaving breeze of hot air Americans felt June 25 was the billion-dollar-per-year checkoff industry collectively releasing a sigh of relief as the U.S. Supreme Court confirmed the legality of mandatory federal commodity checkoffs.
At least that’s the checkoff industry’s view of the skinny, discordant 5-4 vote by the Supremes. A more accurate reading of the court’s decision, however, shows that interpretation to be plainly in error.
Indeed, the narrow victory was based on a very narrow economic legal argument. An argument, say lawyers familiar with the case, which only opens the barn door to future checkoff litigation.
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The case before the Court came about when the federal appeals court in San Francisco declared the California nectarine, peach and plum checkoffs violated the First Amendment’s guarantee to free speech. USDA appealed the decision to the Supreme Court.
The facts of the issue were rather simple. Wileman Bros., and other growers who joined them, argued the mandatory checkoff they are forced to pay under the Agricultural Marketing Agreement Act of 1937 to fund generic peach advertising competed against their own advertising efforts to market private-labeled fruit.
Since the First Amendment affords them the right to speak or not speak, the litigants claimed, they should not be forced to pay for the generic advertising, especially since this speech clashed with their own advertising and sales efforts in the marketplace.
At the Supreme Court hearing, USDA argued the test in Wileman was less a “heightened” First Amendment standard and more a simple upholding of the guiding 1937 Ag Marketing Act. In the end, this “it’s the law; it’s been here since 1937; uphold it” approach proved more compelling to five of the Justices than any First Amendment issue.
Explains James Moody, one of the attorneys for the challengers:
“The Court bases its opinion on the assumption that the California peach market is highly regulated because of the wording of the 1937 law. While that may have been true then, it simply isn’t true today and everyone knows it. …
“Justice John Paul Stevens (who wrote the majority opinion) claims that a $300,000 a year tax, the checkoff, to fund someone else’s speech is not a First Amendment issue. That’s utter nonsense.”
Moody has company in that belief: Supreme Court Justices Clarence Thomas and Antonin Scalia joined Justice David Souter to write a dissent to Stevens’ opinion. Justice Thomas went the extra step to add a blistering retort:
“In numerous cases, this Court has recognized that paying money for the purposes of advertising involves speech. It is incongruous to suggest that forcing fruit-growers to contribute to a collective advertising campaign does not even involve speech …
“What we are now left with, if we are to take the majority opinion at face value, is one of two disturbing consequences:
“Either (1) paying for advertising is not speech at all, while such activities as draft card burning, flag burning, armband wearing, public sleeping, and nude dancing are, or (2) compelling payment for third party communication does not implicate speech, and thus the Government would be free to force payment for a whole variety of expressive conduct that it could not restrict.
“In either case, surely we have lost our way.”
Attorney Moody, although beaten in this challenge, believes it sets the table for future success. “In Wileman, the Court chose to define the issue, erroneously, I contend, through regulatory law – the 1937 AMA.
“It cannot use that argument when federal checkoffs which contain no regulatory language – the beef, pork or soybean checkoffs, for example – face future court challenges.
