First Amendment ferment : compelled commercial speech cases and the conflict over mandatory commodity fees

A major battle in First Amendment free speech rights is raging over the constitutionality of mandatory commodity assessments for generic product advertising (called "commodity checkoffs"). Such advertising features slogans such as "Got Milk?" "The Other White Meat" and "Beef, It's What's for Dinner." More than $750 million per year is collected in commodity checkoffs on the basis of stand-alone legislation or marketing orders that have their genesis in legislation dating back to 1937. This income directly supports generic advertising, administrative salaries, research and educational activities and indirectly supports other functions. The rationale for commodity checkoffs is to maintain and expand the market for commodities. The First Amendment challengers claim that forced payment of such fees to fund commercial speech with which they disagree is a violation of their free speech rights. The courts have addressed these arguments in a line of cases, including the 2001 Supreme Court case, United States v. United Foods. In United Foods, the Court struck down mushroom checkoffs by applying a First Amendment doctrine regarding freedom from compelled speech or compelled association, as first established in the union dues case, Abood v. Detroit Board of Education. In doing so, it avoided applying the commercial speech doctrine set forth in the Central Hudson test, a standard followed by lower courts in deciding earlier checkoff cases. United Foods triggered a spate of hotly contested cases involving challenges to commodity checkoffs, with the USDA and dominant leadership in the agricultural industry vigorously defending the checkoff programs on the grounds that the generic advertising constitutes "government speech." The decisions indicate a judicial trend toward recognizing the First Amendment rights of the challengers by holding commodity checkoffs unconstitutional unless they are part of a complex regulatory scheme. The lower courts are divided in regard to the "government speech" defense, and the issue has yet to be addressed by the U.S. Supreme Court. The legal conflict constitutes only one layer of a broader political, economic and social picture. The research revealed that the agricultural industry is experiencing dramatic shifts from competitive industry models to industry structures characterized by concentration, vertical integration, and powerful control by meat packers, dairy and meat processors and other entities higher in the "food chain." A network of close relationships among the USDA, trade associations and giant agribusiness organizations suggests the possibility of a deeply imbedded hegemony thriving off checkoff fee wealth. The central thesis of this dissertation is that the line of compelled commercial speech cases represents a fundamental hegemonic conflict within the agricultural industry in which the challengers are using the courts and the First Amendment as a mechanism to break the current hegemony of commodity checkoffs and establish countervailing power. If successful, the resulting changes will impact both the hegemony of the agricultural industry and the development of First Amendment doctrine.