Got Bilk?

Compelling speech

The federal Dairy Promotion Program is determined to help dairy farmers. With their own money. Whether they like it or not. But two traditional dairy farmers are determined to get government hands off their udders.

Pennsylvanians Joseph and Brenda Cochran like to do things the old-fashioned way. "We don't use BST, a growth hormone," explains Joseph, "and we let our cows graze a lot; they get a lot of fresh air and TLC." Since a selling point for the Cochrans' products is that they're different from those produced on larger factory farms, they don't think they benefit from generic "Got Milk?"-style ads, which imply that one bottle of the white stuff is pretty much the same as any other. The Cochrans also believe the ads tend to benefit processors and retailers, not the farmers who deliver raw dairy products.

But under the Dairy Act, they're still required to pay almost $4,000 a year to fund such ads. According to Joseph, it's as if the owner of timberland "had to pay to advertise Louisville Sluggers and broom handles."

Represented by the D.C.-based Institute for Justice, the Cochrans are fighting for the right to opt out of the program on free speech grounds. Some precedent is on their side: In 2001 the Supreme Court ruled in a similar case, concerning mushroom ads, that "First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors."

The Cochrans nevertheless lost a District Court battle in 2002 and have now turned to the U.S. Court of Appeals for the 3rd Circuit. Coming months will reveal whether the court believes free speech does a body politic good.