ANN VENEMAN, Secretary, U.S. Department of Agriculture,NATIONAL DAIRY PROMOTION BOARD

motional projects Dairy and the Board’s SLOVITER, Before RENDELL and them, administration of Dairy Act and ALDISERT, Judges. Circuit implementing order require every milk producer in the United States to man- OF THE OPINION COURT datory assessments of 15 per cents hun- ALDISERT, Circuit Judge. dredweight of milk § sold.1 Id. 4504(g); 7 The public American very familiar § C.F.R. 1150.152. Neither the Dairy Act with the “Got Milk? ®” ads on television nor the permits order dissenting pro- milk and print media. ducers to withhold contributions for adver- This appeal requires us to decide wheth- tising or promotional projects to which er a federal may statute compel a small they object. dairy farm Pennsylvania to help pay for The object Cochrans to paying these the white-mustache milk advertisements assessments and filed an action in the and dairy other promotions. Implicated United States District Court for the Mid- here general First Amendment pre- dle District of Pennsylvania seeking dec- cepts protect that right to refrain from laration that the Act violates their

speaking and the right to refrain from First Amendment lights of free speech association, and the specific issue of wheth- and association. er may compel individuals to fund speech with they which disagree. The Cochrans operate a small commer-

Joseph and Brenda Cochran are dairy inde- cial farm with approximately 150 pendent dairy small-scale They farmers. cows on about 200 acres of land in Tioga are not any dairy members of manufactur- County, north-central Pennsylvania. ing or marketing cooperative. They alone contrast to many larger-scale commercial determine how much milk to produce, how dairy farms, the Cochrans employ what is The provides: provide order shall person each The rate of assessment for pre- milk ... making payment producer for milk scribed the order shall be 15 per cents produced in the United States pur- and hundredweight of milk for commercial use chased producer from the ... shall collect equivalent thereof, or the as determined an assessment upon based number Secretary. hundredweights of milk for commercial use 4504(g). § U.S.C.

handled for the producer account and remit the assessment to the Board. Board, and dairy- National methods “traditional” as known injunctive relief declaratory and sought farming is less Traditional farming. assess- remittance from the commercial larger-scale than aggressive to finance dairy producers by all ments room to more cows it allows farming, as Alleging dairy advertisements. use the does and graze move com- unconstitutionally Dairy Act that the Hormone Bovine Growth recombinant which speech with to subsidize pels them their believe that (rBGH).2 The Cochrans motion filed a the Cochrans disagree, they cows, a cleaner result healthier methods contending that summary judgment milk. superior environment teachings by the controlled case was their advertising under object Cochrans Foods, Inc., 533 v. United States of United conveys a mes- Act because L.Ed.2d 438 121 product a generic milk is sage held (2001), Supreme where on no distinction based bears Mush- under the subsidies thereby forces produced, it is how Research, Promotion, and Consumer room they with which them to subsidize (“Mushroom Act of Information disagree. violated Act”), seq., et protections. First Amendment may pre First Amendment As the to dis- a motion filed The Government prohibiting from government the vent alternative, summary or, for the miss govern prevent also the may speech, is con- this case arguing that judgment, to ex individuals compelling from ment v. teachings of Glickman by the trolled Maynard, views, v. Wooley press certain Elliott, Inc., 521 U.S. & Brothers Wileman 1428, 51 714, 705, 97 S.Ct. 430 U.S. 2130, 585 L.Ed.2d 457, 138 117 S.Ct. (1977); Virginia State West 752 L.Ed.2d upheld (1997), Supreme Court the 642, 624, Barnette, 319 U.S. v. Bd. of Educ. advertising Cali- subsidies for (1943), 1178, 1628 87 L.Ed. 63 S.Ct. marketing or- fruit under two tree fornia to which individuals .speech for subsidies Agricultural to the pursuant ders issued California, Bar v. State object, Keller Act of 1937 Agreement Marketing and 9-10, 1, 496 U.S. seq. et (“AMAA”), § 608c 7 U.S.C. Dep’t (1990); v. Detroit Abood L.Ed.2d 1 dairy generic argued that Government of Educ., Dairy Act under advertising subsidized (1977). 52 L.Ed.2d and is speech” “government constitutes Amendment First defen- from named as immune therefore lawsuit The Cochrans’ Dairy Act moreover, and, that the scrutiny capacity her official Ann Veneman in dants regulation of economic species Depart- is a States Secretary of United as Amendment.3 First not (“USDA”) does violate and Agriculture ment of sup- who dairy Pennsylvania farmers 3. Seven rBGH, bovine as recombinant known also Program and engi- Dairy Act (rBST), genetically port the somatotropin is a dairy to to inter- administered for leave growth hormone the district court petitioned neered Although the production. milk court cows to boost the district and vene as defendants approved Drug has Administration and Food intervention petition granted in the dairy production rBGH for use of Proce- 24(a) of Civil Federal Rules of the Rule States, and small advocates consumer motion a cross filed Intervenors dure. The long- questioned producers have dairy argu- echoing the summary judgment, on hu- growth hormone effects term mans, motion. in its Government ments made Barnes See and the environment. cows (W.D.Wis. Shalaia, F.Supp. 1994). agreed The district court with the Govern- A. ment granted summary judgment Glickman, producers of California favor, holding its Dairy that the Act sur- tree fruits (including nectarines, plums and vives the deferential First Amendment peaches) challenged the constitutionality of scrutiny afforded to economic regulation. regulations contained marketing orders appeal. Cochrans promulgated by the Secretary pursuant to We must decide whether the challenged AMAA, 608c et seq., that pursuant communications Act imposed mandatory assessments on fruit are thereby im- growers tree expenses cover the associ- mune from First scrutiny. Amendment If ated orders, with marketing including these private communications are speech, costs of advertising. we decide must whether 117 S.Ct. 2130. The empha- violates the First Amendment free sized that the advertising besides deci- rights association farmers. sions, the economic.autonomy of the fruit so, In doing we must quantum consider the growers tree was otherwise restricted of scrutiny to be applied determine the broader collective arrangement set forth in validity of regulations, such as the the marketing orders:

Act, that compel speech. commercial California nectarines peaches

For the reasons follow we reverse pursuant marketed detailed market- judgment district court and hold ing orders that displaced many have compelled speech as- pursuant pects independent private Act is business speech, activity govern- ment characterize speech, portions and is other subject therefore of the economy in First Amendment scrutiny. competition hold is fully We also that protected by the Act violates the the Cochrans’ antitrust First laws. The Amendment free and business association entities that compelled are rights by compelling them fund to subsidize advertising in at issue they with which disagree. litigation In this so do part so as of a broader doing we conclude that the subsequent enterprise collective in which their free- Supreme Court decisions Glickman in dom to act independently already con- 1997 and United in Foods severely 2001 by strained the regulatory scheme. dilute precedential vitality of our ulti- 469, 117 Id. at mate holding in Frame, United States v. (3d

885 Cir.1989), F.2d 1119 in which we addition to advertising, the marketing that compelled concluded assessments orders for California fruit growers tree pursuant to the Beef Promotion provided Research for mechanisms for establishing 1985, Act of 2901 seq., et sur- uniform prices, limiting quality vived First Amendment scrutiny. quantity of tree fruit that could be market- ed, determining the grade and size of the

I. fruit and orderly disposing of any surplus. In determining the 461, side on Id. at which the 117 S.Ct. 2130. The orders also axe must fall—on or joint Glickman on authorized research and development Foods—we must start projects, examining why quality inspection procedures and the Supreme Court went one way in its standardized packaging requirements —all first case Glickman and the way other of which were financed by the compelled in its subsequent in decision United Foods. assessments. Id.

269 B. the collective that determined The Court farmers was fruit tree arrangement later, in United Foods Four terms at issue arrangement union similar mandatory that assessments Court held Education, Detroit Board in Abood for the mushroom imposed on 1782, L.Ed.2d 261 209, 97 S.Ct. 431 U.S. mushroom ad- funding generic purpose of at issue (1977), association the bar Act, 7 the Mushroom vertising under California, 496 U.S. Bar v. State Keller the First seq., § 6101 et violated (1990). In 2228, 110 L.Ed.2d 1, 110 S.Ct. 533 U.S. at S.Ct. Amendment. infringe Abood, held the Court distinguished statu- The Court 2334. associational Amendment First upon ment at issue in United Foods from tory context un for a compelled assessments rights Glickman, explaining “constitutional arrangement was shop ion Act “the com- the stand-alone Mushroom legislative assessment by the ly justified advertising union pelled contribution contributions important estab regulatory of labor relations scheme” system to the of some broader shop part 222, at U.S. by Congress.” 431 “princi- lished was itself the advertising and the Keller, Similarly, the Court S.Ct. Act. at Mushroom object” of the pal First upon infringement held such, As “the man- 121 S.Ct. 2334. rights by com associational Amendment contrary to the First support dated program bar for a state pelled assessments forth in set cases principles Amendment constitutionally justified by State’s was in- by groups which involving expression legal profession regulating interest object speech, who persons clude legal services. quality improving nevertheless, who, remain mem- must but Finding at 110 S.Ct. 496 U.S. necessity.” group by law bers of the of Abood between facts parallels Abood, (citing Id. at concluded Keller, in Glickman the Keller, 1782; 97 S.Ct. marketing or part of the AMAA that as 2228). The Court gener ders, assessments assessments concluded that fruit were tree advertising of California ic Act were unlike to the Mushroom pursuant marketing comprehensive ancillary to a Abood, Keller and Glick- the situation of species “a and therefore were program, man, in which: enjoy the should regulation that economic a required pay to subsi- were validity that Those who of presumption strong same al- association made judgments dy for the policy to other we accord for 117 S.Ct. to associate ready at were Congress.” required by making compelled the purposes, 2130. other for ex- moneys pay to contribution the analysis of opinion the “The necessary a incident pressive activities upon the proceeded ] Glickman [in Court an expenditure for otherwise larger aof bound producers were the premise cooperative proper goal requiring to by the statute required together activity. cooper according to products their market extent, mandat their rules. To

ative 414, 117 2130. at S.Ct. Id. advertising program in an participation ed noted Fundamentally, the Court logical was the message particular with a subsidies compelled upheld have “[w]e of economic of a valid scheme concomitant program context of in the for Foods, regulation.” United object itself.” principal where 412, 121 Id. at 117 S.Ct. 2130. Concluding and carrying out a program coordinated that the program promotion con designed to strengthen the advertising pursuant dairy tributions to industry’s position in the market- very 4501(b). Mushroom serve “is the place_” § advertis Id. ing in question,” scheme the Court ruled Dairy The Act is a stand-alone law that assessments were not was not passed part as any other federal permitted under the First Amendment. dairy regulatory scheme. It directs the

Id. at Secretary appoint a Dairy Board com- posed of private milk producers to admin-

C. ister Dairy Promotion Program. Id. (c). §§ 4504(b) & The Act provides that express Guided reasoning of every producer milk must Foods, in .Glickman and mandato- United we ry assessment of 15 per cents must first look at hundred- the broader statutory weight of milk sold to finance presented pro- Dairy Act, scheme or motional programs and Dairy more Board’s specifically, we must ascertain administration them. dairy whether the producers are “bound together required by the statute to Pursuant to the authority provided in 7 products market their according cooper- § 4503(a), Secretary issued an ative rules” for purposes other than adver- order March 1984 establishing Dairy tising, speech. 533 U.S. Board, 1150.131, § 7 C.F.R and the Board It is a descrip- proceeded to collect the mandatory assess- tion Act we now turn. ments from all producers, milk 7 C.F.R § Cochrans, 1150.152. For the the com-

II. pelled assessments amount to roughly $3,500 $4,000 per year. Program set forth Act is one in a long series of The Dairy Board composed of com- federal “checkoff’ programs promoting mercial milk who are nominated agricultural commodities.4 Enacted in “eligible associations,”, which pri- Act authorizes the Secre- vate associations of milk producers that tary of Agriculture to program establish a engage in dairy promotion at the state and for the “advertisement promotion regional 1150.133, §§ level. 1150.273. and consumption sale products primary consideration in determining projects [and] for research related there- an organization’s eligibility is “whether its 4504(a). to.” The declared membership consists primarily of pro- milk purpose of Dairy the Act is to provide produce ducers who a substantial volume “an orderly procedure for financing ... of milk” and whose overriding lay interests Veneman, Other stand-alone programs checkoff estab (6th 348 Cir.2003)); F.3d 157 by Congress lished subject which have been Act, (invali- § seq. Mushroom 7U.S.C. 6101 et First challenges Amendment include: Beef Poods, by dated in 2001 U.S. 533 ("Beef Research and Act of Information 1976 2334). Glickman, Cf. (upholding Act”), (invalidated § 7 U.S.C. seq. et by 2901 117 S.Ct. 2130 as constitu- Marketing Livestock Dep't Ass'n v. marketing tional orders for California tree Agric., (8th Cir.2003) 335 F.3d (reh’g 711 den. promulgated pursuant AMAA, fruits to the 16, 2003)); Promotion, Oct. Research, Pork § U.S.C. seq., 608c et which included com- and Consumer Information Act of 1985 pelled fund, among assessments to other ("Pork Act”), (invali § seq. U.S.C. 4801 et things, generic advertising). by Ass'n, dated Michigan Pork Producers Inc. 4507(a) (authoriz- See, § e.g., Act. 7 U.S.C. of fluid promotion and production in the Secretary an order dairy products. the terminate ing and other milk 1150.274(b). when she deter- under the § issued or does not tend to mines it “obstructs Dairy created Dairy Board the Act). policy of’ the the declared effectuate (“DMI”), a District of Inc. Management, is the guidelines explain “[i]t AMS that now oversees corporation Columbia carrying out the over- of AMS policy activities promotional the administers and legisla- to ensure sight responsibility joint DMI a undertak- Dairy Act. tive, policy re- regulatory, Department and and the United Dairy Board ing (“UDIA”), It is not the intent to quirements are met. Dairy Industry Association region- operations be- on board impose an of state constraints association which AMS, that are programs Guide- dairy promotional yond requirements.” these al under “Qualified Programs” Commodity Oversight considered lines for AMS are Programs” Dairy “Qualified Act. Programs and Promotion Research many of which programs, promotional local (1994). func- Secretary’s oversight The Act, milk Dairy preexisted by are funded Dairy Program tions for portion a may contribute producers compelled assessments. in assess- otherwise

money they would 1150.151(b). § 4504(g)(2); § 7 C.F.R. Act. See ments Moreover, not the dairy producers, 1150.152(c), §§ 7 C.F.R. 4504(g)(4), § Dairy control whether government, dairy requires thus The Act 1150.153. continues via refer- Program Promotion per full 15 pay either the cent farmers to 4506(a). § process. 7 U.S.C. endum Dairy to the hundredweight assessment pro- advertising promotional All Dairy Program to the Program part or by financed that are grams Qualified Program that en- part Dairy Act and cre- under the assessments regional generic advertis- state gages pro- and DMI by Board ated Board the DMI Dairy Board and ing. The product. C.F.R. milk as a mote pro- milk entirely private composed are advertising campaigns Among § 1150.114. private parties, and and other ducers Program by the Promotion financed funded en- Program is Dairy Promotion “Ahh, power milk? ®” and are “Got through milk tirely by private cheese.” assessments. explains: website Program dairy funded are programs “Checkoff III. They TAXPAYERS. producers —NOT rather, programs; Act, governmental to the In addition governmental with they are businesses of fed- subject patchwork to a industry is oversight.”5 The dis- regulatory state laws. eral in par- laws four federal trict court noted Secretary’s oversight responsibili- to this case: it deemed relevant ticular that Dairy Act are conduct- pursuant ties (1) Marketing Agreement Agricultural Marketing Agricultural Service ed (“AMAA”), 608c et 7 U.S.C. of 1937 USDA, are (“AMS”), and a division (2) Act of Agriculture the seq.; Pro- the ensuring to limited (3) 1446; regula- control import § with the U.S.C. compliance Program is motion (last visited ycheckoff.com/howitworks.htm Works! —How the checkoff (J.A. 231)). availableat works, June http://www.dair- Checkoff 1202; (4) § tions under 19 U.S.C. and Although milk marketing orders restrict Act, Capper-Volstead § 7 U.S.C. 291. handlers, of dairy decisions they do not with the interfere of dairy pro- decisions An provisions examination of the ducers, Cochrans, such as the regard with these is crucial statutes to determine to how much milk produce, to sell or acts, legislative conjunc- whether these they whether must sell milk dairy at all to Act, tion with bring the case at 608c(5).7 § See id. handlers. At least 25 i.e., bar within the rubric of Glickman — percent of milk sold in the United requiring that milk are bound States is sold outside of federal milk mar- together by obligated to mar- statute keting orders. The Cochrans are able to products ket their according to some set of sell much do of their milk any outside cooperative rules. The district court held milk marketing order. that such a cooperative arrangement exists dairy producers, but we oth- conclude erwise. B.

A. Agricultural The Act of 7 U.S.C. § establishes a price support pro- AMAA, 608c, § permits U.S.C gram wherein manufacturers pro- Secretary marketing to issue orders cheese, cessors of dry nonfat milk and regulate handling and sales of various butter can products sell those to the agricultural commodities, feder- milk, in including al government buyer as of last regions different resort. country. milk, For milk, Producers of such as the marketing Coch- orders establish a classifica- fluid rans, however, are not system tion covered the Ag- and set minimum prices that ricultural Act and permitted handlers regions must sell their product apply. 608c(5); § orders See under the U.S.C. price support program. § 7 C.F.R. et seq. 1000.1 ap- AMAA plies only to “handlers”6 of the covered 608c(l) §§

commodities. 7 U.S.C. & C. (5)(A). “Producers,” such as farm- ers in general, and Joseph and Brenda Similarly, import control regulations Cochran in particular, are specifically ex- under Chapter 4 of the Harmonized Tariff empted from application of marketing States, Schedule of the United 608e(13)(B) § orders. (stating § that no subject a multitude of commodities marketing applicable order “shall be products import annual quotas. Al- any producer in capacity his produc- as a though certain dairy products are includ- er”). butter, namely dry milk and cheese— ed' — 6. A person handler is purchases who milk Area Northeast and the Mideast Area. See 7 producer unprocessed from a in an 1001.1,1033.1. form for §§ C.F.R. portions Certain purpose processing it. state, however, including where the Coch- located, rans are fall any outside federal 7. Milk marketing orders under the AMAAare marketing milk order. The effect of the implemented regional on basis. See 7 provisions any particular AMAA pro- 608c(ll). parts Not all of the coun- subject milk marketing ducer’s to a order covered, try are and some including states— producer if the regu- chooses sell to a California, Virginia, Maine and Montana—are lated handler in an area covered a market- territory outside any milk marketing 1001.13,1033.13. ing §§ order. See id. order. Pennsylvania Portions of fall within two different marketing regions, milk

273 6, district court speech. Although Pt. ment 7 C.F.R. not. See is fluid, milk issue, this the Government did not‘address 1, 2, 3. Apps. the district court contended before under the expressions generated D. There- government speech. Act constitute Act, 7 Capper-Volstead Finally, fore, subject to our review. the issue is 291, agricul of permits § producers U.S.C. milk, mush prohibits First Amendment products including tural — regulating private into manufac from government enter and others —to rooms content, without its but the Court marketing cooperatives speech based on turing regulate government laws. It does “permitted antitrust has violating fear of however, expressed to enter or is not not, content of what is require speaker law ex or government] as federal cooperatives, when [the into such not to enti government] private freedom enlists producers’ when protects [the pressly Agricultural convey message.” own Rosen See ties to its join any cooperative. 1967, § 2301 the Univ. berger Act of v. Rector & Visitors Practices Fair of of 833, 2510, 819, Freezers 115 Virginia, Canners & 515 U.S. S.Ct. Michigan seq.; et (1995). Bargaining Ass’n, Mktg. & L.Ed.2d 700 Agric. Inc. v. 132 2518, 477-478, Bd., 104 S.Ct. has not decided whether The Court (1984). do The Cochrans 81 L.Ed.2d commodity pro speech generated under protected any cooperatives belong to not Act consti laws such as the motion by created exemption the antitrust thereby government speech and is tutes Act. Capper-Volstead scrutiny.9 from First Amendment immune Frame, this court did meet But E. F.2d at 1132-1133. issue. 885 foregoing provi Considering the Appeals of In line with our Courts sister other statutes sions of the Ass’n, v. Inc. Michigan Pork Producers turn dairy industry, we now governing (6th Veneman, 161-162 Cir. 348 F.3d that consti First Amendment issues 2003) v. Marketing Ass’n and Livestock appeal.8 heart of this tute the 711, 720 335 F.3d Dep’t Agric., (8th Pro Cir.2003), that the Beef we held IV. not Program motion was pro beef required it speech because whether the must first consider We it attributed to fund ducers generated compelled assessments program to the beef advertising under the private govern- Dairy Act constitute involving decisions 9. The two Court for the States District 8. The United ad- Pennsylvania jurisdic commodity programs do not promotion had District of Middle 1331 based on pursuant government speech. to 28 tion dress the issue We claim. Gtickman, First the Cochrans’ Amendment Secretary Agriculture timely appeal pursu jurisdiction in this have pursuing it before waived the issue §§ We de novo review ant to 28 U.S.C. U.S. at 482 n. Supreme Court. 521 Congress. constitutionality an Act of J., (Souter, dissenting). In United Marks, (3d Cir. Dyszel F.3d to address the issue the Court refused 1993). Similarly, review of the district our raise it be- government failed to because the pleadings granting judgment on the court's Appeals. U.S. at 416- fore the Court of plenary. summary judgment Anker Co., 177 Corp. Coal Energy v. Consolidation 1999). (3d Cir. F.3d Frame, producers. 885 F.2d at 1132- Program is in all material that Recognizing the Beef Pro- respects the same it as was in the Beef Program Secretary directed the motion Promotion Program, prece- and under the appoint all Cattlemen Board members and Frame, dent established the Secretary’s approve budgets, plans, all contracts and supervisory responsibilities are not suffi- projects by Board, into entered this cient dairy transform the industry’s court concluded that nevertheless “[t]he self-help program into “government Secretary’s supervision ... extensive does speech.” dairy website, On the checkoff not transform self-help program this government itself describes the industry ‘government beef into Promotion Program non-governmen- as a ” speech.’ explained: We program, tal financed by and directed The Cattlemen’s Board seems to be an dairy farmers. entity “representative segment of one of Although this court’s First Amendment

the population, with certain common in- holding discussion ultimate in Frame terests.” Members of the Cattlemen’s have abrogated been by Glickman and Operating Committee, Board and the none of the Court’s subse- though appointed by Secretary, quent decisions regarding “government officials, rather, government but in- speech” undermine our analysis of that private dividuals from the sector. The issue in Frame.10 pool Accordingly, we con- nominees from which the Secre- clude members, case, that this is a tary moreover, private speech selects Board by thus is not private are determined beef immune from industry First Amend- organizations scrutiny. from the ment various states.

Furthermore, organizations the State el- igible participate in Board nomina- V. tions are history those “have a stability permanency,” and whose The teachings of United Foods re “primary overriding purpose is to quire us to decide whether the pro promote the economic welfare of cattle ducers are “bound together and required producers.” by the statute to products market their Id. at (quoting 2905(b)(3) according rules[,]” to cooperative 533 U.S. (4)). & government’s 412, role 2334, 121 S.Ct. purposes other 10. Notwithstanding the speech analysis Government’s asser- might apply if a state univer contrary, tions to the we are not convinced sity general used money tuition to fund any rendered decisions administrators); speech attributed to the school or its years following our decision in Frame Passenger ron v. Nat’l Corp., R.R. Leb require government us to cast aside the 374, 961, 513 U.S. 115 S.Ct. 130 L.Ed.2d 902 speech analysis performed we in Frame. See (1995) (holding government is a Amtrak 533, Legal Corp. Velazquez, Servs. v. 531 U.S. actor for purposes First Amendment because (2001) (con- 121 S.Ct. 149 L.Ed.2d 63 created govern was statute to further cluding placed private restrictions on the objectives ment government and the main lawyer receiving government tained substantial daily opera control its over funding Legal Corporation from the Services tions); Sullivan, Rust v. 500 U.S. unconstitutional); were Regents Bd. (1991) (conclud 114 L.Ed.2d 233 Southworth, Sys. Univ. Wis. ing government prevent that the private can (2000) 146 L.Ed.2d 193 family planning doctors clinics that receive dicta, (stating in govern- in a case where the funding providing federal from abortion affirmatively any ment disavowed connection counseling). involved, that a 5.) n. in Foods That is our at 15 The Court United speech. or advertising, than applied only made clear Glickman task. next to Abood and Kel- circumstances similar Dairy- contend that The Cochrans to- ler—in which individuals are “bound free their First Amendment Act violates in a a gether” enterprise, collective such as rights by compel- and association speech bar, integrated union or an state and the advertising ling them to subsidize compelled “logical subsidies are the con- by methods produced milk promotes a comitant of valid scheme economic harmful to the wasteful and they view as 412, at regulation.” 533 U.S. S.Ct. environment. 121. protects First Amendment The and the speaking to refrain from right provisions Act do not See, e.g., refrain from association. right to require producers participate milk to 714, at 97 S.Ct. 1428. Wooley, 430 U.S. compel not enterprise collective and do Moreover, may compel not government milk, product, them to market their fluid speech expressive to fund or individuals according any cooperative. to rules of a they disagree. See with which associations Although dairy industry “regulated” is 411, at 121 S.Ct. 533 U.S. subject a patch- in the sense that it is at Amendment values are 2334. “First laws, there is no work state federal compel can risk if the serious milk must association that all citizen, group or a discrete particular join industry that would make the entire citizens, special subsidies union, or analogous integrated to a an bar As a conse that it favors.... on the side enterprise the collective issue Glick- funding for the ad compelled quence, man. pass must First Amendment vertising pro- free-standing Act is a disagree

scrutiny.” Id. The individual’s applies dairy to all program motional minor, rule general as “[t]he ment can be they are audience, producers regardless of whether not speaker that the is subject marketing any orders or other the value of the government, assess ancillary not dairy regulations. It is (quoting presented.” information Fane, as- any enterprise 507 U.S. collective Edenfield (1993)). purpose L.Edüd be- non-speech with a sociation however, When, compelling regulation or associ- enterprise cause there is no such ancillary to a broader funding dairy all encompasses milk that ation for re enterprise that otherwise Indeed, collective provision AMAA producers. autonomy, it individual’s market stricts the orders, preexist- which marketing for milk regulation,” “economic is considered Act, Secretary authorizes the ed the validity” “strong presumption enjoys a to create marketing administrators challenge. facing a First Amendment when literally dairy promotional programs Glickman, See as- ancillary regulatory would be marketing milk orders. See pects of the 608c(5)(I). not to Congress chose upholding as consti- conclude that We AMAA, precise provision utilize this under the tutional the subsidies entirely however, adopted an and instead Act, misapplied court the district operate does not separate program which the effect of and misconstrued Glickman any aspect of any collective in concert with applicable to regulatory scheme the “entire ” (District marketing milk order. Op. producers.... milk Moreover, independent may as small-scale upheld they be where producers, exempt- Cochrans are germane to a program whose “principal regional marketing ed from the orders un- object itself.” Id. at der the and have chosen not to AMAA manufacturing and marketing enter into conclude, therefore, We that being com- They, alone, cooperatives. they and deter- pelled to advertising fund pursuant to the produce, much milk to mine how how to Dairy Act raises a First Amendment free sell and market and to whom it will be speech and rights associational issue. But sold. Nevertheless under the Act our determination that the compelled Act’s they compelled are to assessments to generic assessments for advertising impli- generic dairy advertising, subsidize a form cate the Cochrans’ First Amendment speech of in they with which are total rights does not inquiry. end our As this Glickman, disagreement. 521 U.S. at Cf. Frame, court held rights “[t]he of free (noting 117 S.Ct. 2130 “none of speech and association are not absolute. advertising conveys any mes- Thus, we must identify next the proper sage respondents disagree”). with which standard for evaluating whether the stat- Furthermore, as the Court in United ute ... passes nevertheless constitutional prin-

Foods determined that is the muster.” 885 F.2d at 1133.12 Act, cipal purpose of the Mushroom so it is Indeed, of Act.11 all “almost of VI. mandatory funds collected under the This case purpose: generic properly assessments are for one is characterized as a Foods, advertising.” 533 at commercial speech United U.S. case. See Foods, the United at U.S. Court 2334; Frame, made clear that subsidies (Sloviter, 885 F.2d at 1146 Congress' policy declared program promotion the Mush- designed strength- 11. room Act was industry’s position en the in the mar- ketplace and expand to maintain and do- public that it is in the interest to authorize foreign mestic and markets and uses for establishment, through the exercise of dairy products. fluid and milk powers provided chapter, in this of an 4501(b). § orderly procedure developing, financing for through adequate assessments on mush- Upon concluding producers that milk produced domestically imported rooms or regulated degree to a similar as the California States, out, into carrying the United and an Glickman, growers tree fruit the district effective, continuous, pro- and coordinated applied three-part court test set forth research, gram promotion, and consum- (1) Supreme Court in Glickman: whether the industry er designed information to— imposes Act a restraint on the freedom to (1) strengthen industry's po- the mushroom communicate; (b) whether compels the Act (2) marketplace; sition in the maintain and any person engage any symbol- actual or expand existing markets uses for mush- (c) speech; ic compels dairy whether the Act rooms; (3) develop new markets and any political endorse or finance uses for mushrooms. (District ideological Op. views. Court at 6101(b). Congress’ declared 16-18.) test, however, This inappropriate purpose for the Act is because, Supreme like the Court in United public it is in the interest to authorize Foods, we have concluded that the orderly proce- establishment ... of an species not a regulation, of economic as it dure financing (through assessments on ancillary is not comprehensive pro- to a more produced all milk in the United States for gram restricting marketing autonomy of imported dairy commercial use and on dairy farmers. In United Foods the did Court products) carrying out a apply three-part this test. Nor do we. coordinated Court, rely Supreme upon how- itself does not Central Hudson J., dissenting). The decision, ever, challenge Appeals’ has left unresolved standard validity compelling ... determining the of laws and we therefore do not consider circuit courts speech, and the whether the commercial Government’s interest could on the issue. There are purposes are divided be considered substantial for judiciary’s in the cu- least four variations the Central Hudson test.” 533 Nevertheless, the more le- experience. mulative One is S.Ct. Glickman, applied standard to commercial earlier case of ques- nient the Court cases. Central Hudson Gas & application See tioned the the commercial Comm’n, Pub. Corp. compelled speech Elec. Serv. test to cases: 557, 564, 65 L.Ed.2d 341 of Appeals explain The Court fails to (1980). “germaneness” is the test Another test, why the Central Hudson which in- See, e.g., compelled speech of cases. volved a restriction on commercial Abood, 235-236, 97 1782. 431 U.S. S.Ct. speech, govern involving should a case of the com- adaptation another is an Still compelled funding speech. the of Given speech standard. See Livestock mercial the fact that the of Appeals Court relied And, in Marketing, 335 F.3d at 722-723. proposition on Abood for the the Frame, pr pr a e-Glickman and e-United program implicates the First Amend- case, applied this court the strin- Foods ment, it is to why difficult understand scrutiny level of for associational gent Appeals the not apply Court did 885 F.2d at 1134. We now rights cases. “germaneness” Abood’s test.

summarize the various standards. 18, 117 at 474 n. S.Ct. Foods, Indeed, in United notwithstand- A. ing specific regarding its disclaimer Cen- Hudson, the Su Central Hudson, seemingly applied tral the Court preme held that to evaluate the Court “germaneness” the test: constitutionality regulatory restrictions only the program The Government con- speech re on commercial the Constitution compelled tends the contributions serve scrutiny intermediate quires —name advertising ques- is scheme in very (1) ly, the state must “assert a sub say speech tion. Were it sufficient to is n (2) interest”; “the stantial itself, germane to the limits observed technique proportion must be in regulatory empty and Keller would be Abood (3) interest”; the incursion on to that meaning significance. coopera- speech designed “must be commercial marketing upon by tive structure relied carefully goal.” to achieve the State’s majority a in Glickman to 564, 100 U.S. at S.Ct. 2343. Commercial ancillary finds no sustain an assessment “expression solely related to the is here; corollary expression respon- speaker economic interests of the and its required support ger- dent is to is not Id. at audience.” related to an associ- purpose mane to question independent speech itself; ation open

But the Court has left from rationale of Abood extends to of whether Central Hudson’s more re- and the objects applies party test who laxed First Amendment involving' compelled support speech. commercial for this For these and cases forth, we have set speech. In United Foods the Court other reasons permitted are not stepped addressing back from issue assessments verbis, explaining: “the the First Amendment. ipsis Government (em- 415-416, at 725-726. tiny of Central Hudson. S.Ct. added). reasoning set forth in Relying on the Unit- phasis Foods, ed the court determined purpose explained, previously As we in all program beef checkoff is material respects in all material Dairy Act respects identical to the mushroom check- the Mushroom Act at as that the same gov- and concluded that “the program, off Foods, and the Act issue in United protecting the wel- ernment’s interest cooperative ancillary to broader is not industry by compelling fare of the all beef like the fruit tree mar- regime marketing for importers beef at issue Glickman. keting orders advertising sufficiently generic beef assessments justify infringement substantial on ger- Act are advertising under First Amendment free appellees’ itself. nothing but mane right.” Id. the funds collected under all of “[A]lmost mandatory assessments are one Frame, Finally, in which was decided advertising.” Id. at purpose:- generic teachings before both Glickman It would thus seem that applied this court the strin- would not survive Abood’s gent rights associational standard but nev- test.

germaneness constitutionality upheld ertheless Act, § seq. the Beef 7 U.S.C. 2901 et applied germane- have the Other courts Back in that the this court concluded involving compelled cases as- ness test to n government’s “maintaining in interest pursuant promotional pro- sessments expanding proves markets ... com- beef rejected application the of grams and have pellingU” and “[m]aintenanee beef See, e.g., Michigan Hudson. Central industry preservation ensures of the Pork, (noting at 163 that “[e]ven 348 F.3d way American cattlemen’s traditional advertising the funded assuming that (cita- Frame, life.” 885 F.2d at 1134-1135 is indeed commercial the [Pork] omitted). tions more lenient standard of re- speech, the to limits on commercial applied view Sloviter, however, Judge dissented on applied speech— speech has never been in this issue Frame: otherwise —that is com- commercial or I type compelled doubt the pelled”); Washington Apple In re State justified can on issue here be Comm’n, 257 F.Supp.2d

Adver. Nonetheless, I any basis. do not reach (E.D.Wash.2003) (concluding that majority’s stringent the associational “[bjecause assessments the Commission’s rights standard because I believe that speech, inappropriate it is do not restrict found, justification no can be even under Hudson test for re- apply the Central exacting adopted by the less criteria the speech”). on commercial strictions Supreme evaluating per- in the however, Marketing, missibility regulation In the of commercial Livestock adapta- that an Central Eighth [in ].... Circuit concluded Hudson While applied, government general tion the Hudson test the has a interest in Central industry, that “Central Hudson and the the health of the beef it does explaining government involve inter- not follow that has a case at bar both speech in a commer- in private compelling ference with substantial interest industry at 722. All support cial context.” 335 F.3d beef to make and such same, Instead, promotion campaign. concluded that the Beef ... the court messages represent Act did the intermediate scru- the economic inter- not survive popula- dairy producers ue is controlled segment of one via ests process. ... referendum tion. 4506(a). § (Sloviter, J., dissenting) at 1146-1147 omitted).

(citations quotations internal conclude, therefore, that the govern- We n Frame, in the Government As ment’s interest in promoting in- inter argues here has sufficient dustry sufficiently not jus- substantial to agri for an increasing the demand est tify infringement on the Cochran’s Moreover, the Govern product. cultural First Amendment free and associa- that it has an interest ment contends rights. Judge suggested tion As Sloviter obligation purchase dairy decreasing its Frame, promotional pro- her dissent pro products price support grams such as the Act seem to gram, previously 1446. We U.S.C really special legislation be interest on be- however, emphasized, have industry’s half of the interest more so than holding in subsequent Court’s United government’s. We believe that that clarified and limited the teach Foods Supreme Court reached the same conclu- Glickman, away underpin cut ings by ruling sion in United Foods that analysis in Frame. ning of this court’s pursuant assessments gov makes clear that United Foods permitted Mushroom Act are not by the may compel individuals to ernment First Amendment. program for the support advertising an increasing purpose sole demand for B. product. 533 U.S. at the Court concluded that United In light Supreme of the reluctance of the Act’s subsidies the Mushroom Court in Foods to enter contro would unconstitutional even under the be versy applicable scrutiny over the for com scrutiny accorded to commercial lesser cases, however, pelled speech commercial 410, 121 speech. Id. at S.Ct. 2334. we will follow suit. find no basis “[W]e Although prece the Government’s contention under either or our other Glickman a in de- compelled it has substantial interest dents to sustain the assess creasing obligation its in sought ments this case.” 533 U.S. at unique 410, 121 price support program is somewhat S.Ct. 2334.13 in from the interest asserted generic compelled assessments Foods, United this interest is undermined dairy advertising Dairy under the Act re- statute, by the fact that as a stand-alone Indeed, speech speech. late to and to conjunc- Dairy operate Act does not in “almost all of the funds collected under the price program. In- support tion with the mandatory pur- are for one assessments deed, liquid milk such as the pose: generic advertising.” Id. at support are not covered Cochrans Moreover, reductions in the program. by any degree scrutiny Measured set government’s obligations price under the discussion,- foregoing forth in the we con support program insignificant are to the existence, runs on all fours Dairy Program’s as clude this case with Foods, compelled teachings holding whether the assessments eontin- United accept- We sion in- United that standard is not reach this conclusion whether ing explicitly expressed the standard in Frame longer controlling. deciding that in view of the Court’s discus- in Dairy that the Pro- with a direction to enter a decree favor accordingly hold Appellants in accordance with the fore- Act of 1983 does not motion Stabilization challenge going. First Amendment survive the by Appellants Joseph and Brenda

lodged RENDELL, Judge, concurring. Circuit in The district court erred sus- Cochran. taining constitutionality of the RENDELL, Judge. Circuit Act on the basis of Glickman. join I in opinion judgment our but íj! í]S t}í that, my separately register write view sum, conclude that In we having found that the assessments do not Dairy Pro- advertising pursuant pass Supreme muster under the Court’s Act of does not motion Stabilization Foods, and, analysis having in United not- government speech constitute is there- ed at the end of Pat IV that the subject scrutiny. fore to First Amendment support pro- were assessed to a subsidies hold that the Act violates the We object gram principal speech whose was Cochrans’ First Amendment free itself, engage not we need the exercise rights. Although and associational determining regarding the “standard” subject a dairy industry may laby- be government’s the extent of the interest for regulation, rinth of federal Act is purposes of a commercial speech analysis stand-alone law and as- Hudson, opinion under Central as the does generic dairy advertising sessments at Part VI-A. Twice—in both Glickman germane regulatory to a larger Supreme and United Foods—the purpose other than itself. questioned engaging has the need for And, judgment analysis.14 of the district court sus- Central Hudson I think it taining constitutionality unnecessary apply Central Hudson in light analysis Promotion Stabilization Act of 1983 will be Court’s proceedings reversed and the remanded Foods.15

14. The Court has not treated these cases as which involved a restriction on commercial issue, involving speech, govern involving a discrete commercial should a case fact, indicating question compelled funding speech”). instead ''[t]he government may appears explicitly whether the underwrite and United Foods the Court sponsor speech viewpoint using applicability with a certain endorse the of the Abood /Keller special germaneness designated party test: "It is true that the subsidies exacted from a protests persons, object required who class of some of to the assessment here is whom others, simply support speech by being idea not to advanced.” United conclude, 410, 2334; speech utter the itself. We U.S. at howev- 121 S.Ct. see also id. er, that, support contrary (stating that the mandated even if commercial is less principles the First Amendment set forth in protected speech, other than there is "no ba- involving expression by groups cases prece- sis under Glickman or our other either persons object assessments,” speech, include who to the but dents to sustain the who, nevertheless, must remain members of refusing but to consider "whether the Govern- by necessity.” group law or at 533 U.S. ment's interest could be considered substan- 413, Keller). (citing test”); 121 S.Ct. 2334 Abood and purposes tial for of the Central Hudson Glickman, 521 U.S. at 474 & n. Circuit, (noting Michigan [Ninth that was "error for the 15. The Sixth Pork Pro- Ass’n, Veneman, rely Circuit] to on Central Hudson for the Inc. v. ducers 348 F.3d 157 (6th Cir.2003), purpose constitutionality testing rejected application also market promotional order assessments for ad- the Central Hudson to an test assessment cre- vertising,” stating promotional program. ated Ninth Circuit similar I test, explain why "fails to the Central Hudson find that court's comments on this matter to n proper scrutiny distin- level of In Foods the Court is therefore un- United and, it faced from the one guished believe, the situation necessary, I dicta. by examining

it considered Glickman question: challenged Is the

the following part regulatory of a “broader

assessment that does not have as its

system” object. 533 at

primary appear parts There to be two First, inquiry. plaintiffs

this basic are the

part group together of a that is “bound UNITED of America STATES ... required products to market their cooperative rules?” according Second, is the as- S.Ct. 2334. Daryl Elliot CARTWRIGHT a/k/a regulation related to and in fur- sessment Cartwright Atkins Elliot non-speech purposes, therance of other Appellant.

carrying aspects out other to further oth- economic, societal, governmental er No. 03-1466. goals? Id. at S.Ct. 2834. Even “no,” question if Appeals, the answer first States Court of might per- assessment nonetheless be Third Circuit. if speech. mitted it is not related to 26, 2004. Argued Jan. inquiry signal This second could consider- if, fact, “germaneness” ation of other March here, But an- goals implicated. were we questions: “no” to both

swered we decid-

ed the Cochrans did not surrender independent

their freedom to make com- any

petitive choices to collective enter-

prise, and we concluded that was Thus, Dairy Act. only purpose purely “compelled speech,”

it was forbid- any

den United Foods under level of

scrutiny. fact, discussing after the various stan- here, potentially applicable

dards Judge clearly ensuing

Aldisert states Part any scrutiny, that under level of

YI-B speech only pass

assessments for do not given

constitutional muster United Foods. analysis regarding in Part VI-A inapplicable ing commercial "[W]e be instructive: find to this funded is indeed scrutiny speech, case relaxed of commercial the more lenient standard of review Central analysis Hud- provided applied has limits on commercial son, upon by Appellants. applied and relied The Pork never been —commercial directly ability compelled. thing pork Act does not limit the otherwise —that It is one mouth; express message; compels a to force close her it is someone to express message they quite them to with which do another to force her to become mouth- (citation omitted). Id. at 163 agree. assuming piece.” Even the advertis-

Case Details

Case Name: ANN VENEMAN, Secretary, U.S. Department of Agriculture,NATIONAL DAIRY PROMOTION BOARD

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 24, 2004

Citation: 359 F.3d 263

Docket Number: 03-2522

Court Abbreviation: 3rd Cir.