                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-24-2004

ANN VENEMAN, Secretary, U.S. Department of
Agriculture,NATIONAL DAIRY PROMOTION
BOARD
Precedential or Non-Precedential: Precedential

Docket No. 03-2522




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Paper 940.
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   UNITED STATES COURT OF                       Argued: January 12, 2004
          APPEALS
    FOR THE THIRD CIRCUIT                 Before: Sloviter, Rendell and Aldisert,
                                                     Circuit Judges.

            No. 03-2522                         (Filed: February 24, 2004)


     JOSEPH S. COCHRAN;
     BRENDA S. COCHRAN,                  Steven M. Simpson (Argued)
                                         Institute for Justice
                          Appellants     1717 Pennsylvania Ave., N.W. Suite 200
                                         Washington, DC 20006
                  v.
                                         Walter T. Grabowski
  ANN VENEMAN, Secretary, U.S.           Holland, Grady & Grabowski
    Department of Agriculture;           61 North Washington Street
 NATIONAL DAIRY PROMOTION                Wilkes-Barre, PA 18701
           BOARD
                                         ATTORNEY FOR APPELLANTS
                          Appellees
                                         Thomas A. Marino,
                And                      United States Attorney
                                         Matthew M. Collette (Argued)
 FRED LOVELL; LEE GREENWALT;             Douglas N. Letter
JACKIE ROOT; EARNEST NORMAN;             Attorneys, Appellate Staff
   STEPHEN MASHALL; CECIL                Civil Division, Room 9008
  MOYER; JAMES VANBLARCOM                Department of Justice
                                         Washington, D.C. 20530-0001
            Intervenors-Appellees
                                         ATTORNEY FOR APPELLEES

                                         Richard T. Rossier (Argued)
Appeal from the United States District   Alex Mendez
  Court for the Middle District of       McLeon, Watkinson & Miller
           Pennsylvania                  One Massachusetts Ave. N.W. Suite 800
                                         Washington, D.C. 20001
    (D.C. Civil No. 02-cv-00529)
                                         ATTORNEY FOR INTERVENORS-
         District Judge:                 APPELLEES
    Honorable John E. Jones, III
                                                  creating the National Dairy Promotion and
                                                  Research Board (“Dairy Board”) to
                                                  administer the program. To finance the
      OPINION OF THE COURT                        promotional projects and the Dairy
                                                  Board’s administration of them, the Dairy
                                                  Act and implementing order require every
                                                  milk producer in the United States to pay
                                                  mandatory assessments of 15 cents per
ALDISERT, Cicuit Judge.                           hundredweight of milk sold.1         Id. §
                                                  4504(g); 7 C.F.R. § 1150.152. Neither the
        The American public is very
                                                  Dairy Act nor the order permits dissenting
familiar with the “Got Milk? ®” ads on
                                                  milk producers to withhold contributions
television and in the print media.
                                                  for advertising or promotional projects to
       This appeal requires us to decide          which they object.
whether a federal statute may compel a
                                                         The Cochrans object to paying
small dairy farm in Pennsylvania to help
                                                  these assessments and filed an action in the
pay for the white-mustache milk
advertisements and other dairy promotions.
Implicated here are general First                        1
                                                             The Dairy Act provides:
Amendment precepts that protect the right
to refrain from speaking and the right to
                                                         The order shall provide that each
refrain from association, and the specific
                                                         person making payment to a
issue of whether the government may
                                                         producer for milk produced in the
compel individuals to fund speech with
                                                         United States and purchased from
which they disagree.
                                                         the producer shall . . . collect an
      Joseph and Brenda Cochran are                      assessment based upon the
independent small-scale dairy farmers.                   number of hundredweights of
They are not members of any dairy                        milk for commercial use handled
manufacturing or marketing cooperative.                  for the account of the producer
They alone determine how much milk to                    and remit the assessment to the
produce, how to sell and market it and to                Board.
whom it will be sold.                                    ...
                                                         The rate of assessment for milk . .
       The Dairy Promotion Stabilization
                                                         . prescribed by the order shall be
Act of 1983, 7 U.S.C. § 4501 et seq.
                                                         15 cents per hundredweight of
(“Dairy Promotion Act,” “Dairy Act,” or
                                                         milk for commercial use or the
“Act”), provides for the creation of the
                                                         equivalent thereof, as determined
Dairy Promotion Program and authorizes
                                                         by the Secretary.
the Secretary of the Department of
Agriculture (“Secretary”) to issue an order
                                                  7 U.S.C. § 4504(g).

                                              2
United States District Court for the Middle         where and how it is produced, and thereby
District of Pennsylvania seeking a                  forces them to subsidize speech with
declaration that the Dairy Act violates their       which they disagree.
First Amendment rights of free speech and
                                                             As the First Amendment may
association.
                                                    prevent the government from prohibiting
       The Cochrans operate a small                 speech, it may also prevent the government
commercial dairy farm with approximately            from compelling individuals to express
150 cows on about 200 acres of land in              certain views, Wooley v. Maynard, 430
Tioga County, north-central Pennsylvania.           U.S. 705, 714 (1977); West Virginia State
In contrast to ma ny larger-scale                   Bd. of Educ. v. Barnette, 319 U.S. 624,
commercial dairy farms, the Cochrans                642 (1943), or pay subsidies for speech to
employ what is known as “traditional”               which individuals object, Keller v. State
methods of dairy farming. Traditional               Bar of California, 496 U.S. 1, 9-10 (1990);
dairy farming is less aggressive than               Abood v. Detroit Dep’t of Educ., 431 U.S.
larger-scale commercial farming, as it              209, 234 (1977).
allows cows more room to move and graze
                                                             The Cochrans’ lawsuit named as
and does not use the recombinant Bovine
                                                    defendants Ann Veneman in her official
Growth Hormone (rBGH). 2 The Cochrans
                                                    capacity as Secretary of the United States
believe that their methods result in
                                                    Department of Agriculture (“USDA”) and
healthier cows, a cleaner environment and
                                                    the National Dairy Promotion Board, and
superior milk. The Cochrans object to the
                                                    sought declaratory and injunctive relief
advertising under the Dairy Act because it
                                                    from the remittance of compelled
conveys a message that milk is a generic
                                                    assessments by all dairy producers to
product that bears no distinction based on
                                                    finance generic dairy advertisements.
                                                    Alleging that th e D air y A ct
       2
                                                    unconstitutionally compels them to
         rBGH, also known as
                                                    subsidize speech with which they disagree,
recombinant bovine somatotropin
                                                    the Cochrans filed a motion for summary
(rBST), is a genetically engineered
                                                    judgment contending that their case was
growth hormone administered to dairy
                                                    controlled by the teachings of United
cows to boost milk production.
                                                    States v. United Foods, Inc., 533 U.S. 405
Although the Food and Drug
                                                    (2001), in which the Supreme Court held
Administration has approved the use of
                                                    that compelled subsidies under the
rBGH for dairy production in the United
                                                    Mushroom Promotion, Research, and
States, consumer advocates and small
                                                    Consumer Information Act of 1990
dairy producers have questioned the
                                                    (“Mushroom Act”), 7 U.S.C. § 6101 et
longterm effects of the growth hormone
                                                    s e q ., vio l a t ed F i r s t A m e n d m e n t
on humans, cows and the environment.
                                                    protections.
See Barnes v. Shalala, 865 F. Supp. 550,
554 (W.D. W is. 1994).                                      The Government filed a motion to

                                                3
dismiss or, in the alternative, for summary        scrutiny. If these communications are
judgment, arguing that this case is                private speech, we must decide whether
controlled by the teachings of Glickman v.         the Dairy Act violates the First
Wileman Brothers & Elliot, Inc., 521 U.S.          Amendment free speech and association
457 (1997), in which the Supreme Court             rights of dairy farmers. In doing so, we
upheld compelled subsidies for advertising         must consider the quantum of scrutiny to
California tree fruit under two marketing          be applied to determine the validity of
orders issued pursuant to the Agricultural         regulations, such as the Dairy Act, that
Marketing and Agreement Act of 1937                compel commercial speech.
(“AM AA”), 7 U.S.C. § 608c et seq. The
                                                            For the reasons that follow we
Government argued that the generic dairy
                                                   reverse the judgment of the district court
advertising subsidized under the Dairy Act
                                                   and hold that the compelled speech
constitutes “government speech” and is
                                                   pursuant to the Dairy Act is private speech,
therefore immune from First Amendment
                                                   not government speech, and is therefore
scrutiny and, moreover, that the Dairy Act
                                                   subject to First Amendment scrutiny. We
is a species of economic regulation that
                                                   hold also that the Act violates the
does not violate the First Amendment. 3
                                                   Cochrans’ First Amendment free speech
The district court agreed with the
                                                   and association rights by compelling them
Government and granted summary
                                                   to subsidize speech with which they
judgment in its favor, holding that the
                                                   disagree. In so doing we conclude that the
Dairy Act survives the deferential First
                                                   subsequent Supreme Court decisions of
Amendment scrutiny afforded to economic
                                                   Glickman in 1997 and United Foods in
regulation. The Cochrans appeal.
                                                   2001 severely dilute the precedential
          We must decide whether the               vitality of our ultimate holding in United
challenged communications pursuant to              States v. Frame, 885 F.2d 1119 (3d Cir.
the Dairy Act are government speech and            1989), in which we concluded that the
thereby immune from First Amendment                compelled assessments pursuant to the
                                                   Beef Promotion Research Act of 1985, 7
                                                   U.S.C. § 2901 et seq., survived First
       3
         Seven Pennsylvania dairy                  Amendment scrutiny.
farmers who support the Dairy
                                                                        I.
Promotion Act and Program petitioned
the district court for leave to intervene as              In determining the side on which
defendants and the district court granted          the axe must fall – on Glickman or on
the petition for intervention under Rule           United Foods – we must start by
24(a) of the Federal Rules of Civil                examining why the Supreme Court went
Procedure. The Intervenors filed a cross           one way in its first case of Glickman and
motion for summary judgment, echoing               the other way in its subsequent decision
the arguments made by the Government               in United Foods.
in its motion.

                                               4
                    A.                          marketing orders for California fruit tree
                                                growers provided for mechanisms for
        In Glickman, producers of
                                                establishing uniform prices, limiting the
California tree fruits (including
                                                quality and quantity of tree fruit that
nectarines, plums and peaches)
                                                could be marketed, determining the grade
challenged the constitutionality of
                                                and size of the fruit and orderly
regulations contained in marketing orders
                                                disposing of any surplus. Id. at 461. The
promulgated by the Secretary pursuant to
                                                orders also authorized joint research and
the AMAA, 7 U.S.C. § 608c et seq., that
                                                development projects, quality inspection
imposed mandatory assessments on fruit
                                                procedures and standardized packaging
tree growers to cover the expenses
                                                requirements – all of which were
associated with the marketing orders,
                                                financed by the compelled assessments.
including the costs of generic
                                                Id.
advertising. 521 U.S. at 460. The Court
emphasized that besides the advertising                 The Court determined that the
decisions, the economic autonomy of the         collective arrangement of the fruit tree
fruit tree growers was otherwise                farmers was similar to the union
restricted by a broader collective              arrangement at issue in Abood v. Detroit
arrangement set forth in the marketing          Board of Education, 431 U.S. 209
orders:                                         (1977), and the bar association at issue in
                                                Keller v. State Bar of California, 496
       California nectarines and peaches
                                                U.S. 1 (1990). In Abood, the Court held
       are marketed pursuant to detailed
                                                that the infringement upon First
       marketing orders that have
                                                Amendment associational rights by
       displaced many aspects of
                                                compelled assessments for a union shop
       independent business activity that
                                                arrangement was “constitutionally
       characterize other portions of the
                                                justified by the legislative assessment of
       economy in which competition is
                                                the important contribution of the union
       fully protected by the antitrust
                                                shop to the system of labor relations
       laws. The business entities that
                                                established by Congress.” 431 U.S. at
       are compelled to fund the generic
                                                222. Similarly, in Keller, the Court held
       advertising at issue in this
                                                that the infringement upon First
       litigation do so as part of a
                                                Amendment associational rights by
       broader collective enterprise in
                                                compelled assessments for a state bar
       which their freedom to act
                                                program was constitutionally justified by
       independently is already
                                                the State’s interest in regulating the legal
       constrained by the regulatory
                                                profession and improving the quality of
       scheme.
                                                legal services. 496 U.S. at 13. Finding
Id. at 469.                                     parallels between the facts of Abood and
                                                Keller, in Glickman the Court concluded
       In addition to advertising, the
                                                that as part of the AMAA marketing

                                            5
orders, the compelled assessments for             cases involving expression by groups
generic advertising of California tree            which include persons who object to the
fruit were ancillary to a comprehensive           speech, but who, nevertheless, must
marketing program, and therefore were             remain members of the group by law or
“a species of economic regulation that            necessity.” Id. at 413 (citing Abood, 431
should enjoy the same strong                      U.S. at 209; Keller, 496 U.S. at 1). The
presumption of validity that we accord to         Court concluded that the compelled
other policy judgments made by                    assessments pursuant to the Mushroom
Congress.” 521 U.S. at 477.                       Act were unlike the situation in Abood,
                                                  Keller and Glickman, in which:
        “The opinion and the analysis of
the Court [in Glickman] proceeded upon                   Those who were required to pay a
the premise that the producers were                      subsidy for the speech of the
bound together and required by the                       association already were required
statute to market their products according               to associate for other purposes,
to cooperative rules. To that extent, their              making the compelled
mandated participation in an advertising                 contribution of moneys to pay for
program with a particular message was                    expressive activities a necessary
the logical concomitant of a valid scheme                incident of a larger expenditure
of economic regulation.” United Foods,                   for an otherwise proper goal
533 U.S. at 412.                                         requiring the cooperative activity.
                    B.                            Id. at 414.
       Four terms later, in United Foods                  Fundamentally, the Court noted
the Court held that mandatory                     that “[w]e have not upheld compelled
assessments imposed on mushroom                   subsidies for speech in the context of a
producers for the purpose of funding              program where the principal object is
generic mushroom advertising under the            speech itself.” Id. at 415. Concluding
Mushroom Act, 7 U.S.C. § 6101 et seq.,            that the only program the compelled
violated the First Amendment. 533 U.S.            contributions for advertising pursuant to
at 416. The Court distinguished the               the Mushroom Act serve “is the very
statutory context at issue in United Foods        advertising scheme in question,” the
from that in Glickman, explaining that            Court ruled that the compelled
under the stand-alone Mushroom Act                assessments were not permitted under the
“the compelled contributions for                  First Amendment. Id. at 416.
advertising are not part of some broader
                                                                      C.
regulatory scheme” and the advertising
was itself the “principal object” of the                 Guided by the express reasoning
Mushroom Act. Id. at 415. As such,                of the Court in Glickman and United
“the mandated support is contrary to the          Foods, we must first look at the broader
First Amendment principles set forth in           statutory scheme presented in the Dairy

                                              6
Act, or more specifically, we must                Enacted in 1983, the Dairy Act
ascertain whether the dairy producers are         authorizes the Secretary of Agriculture to
“bound together and required by the               establish a program for the
statute to market their products according        “advertisement and promotion of the sale
to cooperative rules” for purposes other          and consumption of dairy products [and]
than advertising, or speech. United               for research projects related thereto.” 7
Foods, 533 U.S. at 412. It is to a                U.S.C. § 4504(a). The declared purpose
description of the Dairy Act we now               of the Dairy Act is to provide for “an
turn.                                             orderly procedure for financing . . . and
                                                  carrying out a coordinated program of
                                                  promotion designed to strengthen the
                    II.                           dairy industry's position in the
                                                  marketplace . . . .” Id. § 4501(b).
        The Dairy Promotion Program set
forth in the Dairy Act is one in a long                   The Dairy Act is a stand-alone
series of federal “checkoff” programs for         law that was not passed as part of any
promoting agricultural commodities.4              other federal dairy regulatory scheme. It
                                                  directs the Secretary to appoint a Dairy
                                                  Board composed of private milk
       4
        Other stand-alone checkoff                producers to administer the Dairy
programs established by Congress which            Promotion Program. Id. §§ 4504 (b) &
have been subject to First Amendment              (c). The Act provides that every milk
challenges include: Beef Research and             producer must pay a mandatory
Information Act of 1976 (“Beef Act”), 7           assessment of 15 cents per
U.S.C. § 2901 et seq. (invalidated by             hundredweight of milk sold to finance
Livestock Marketing Ass’n v. U.S. Dep’t           the promotional programs and the Dairy
of Agric., 335 F.3d 711 (8th Cir. 2003)           Board’s administration of them.
(reh’g den. Oct. 16, 2003)); Pork
                                                         Pursuant to the authority provided
Promotion, Research, and Consumer
                                                  in 7 U.S.C. § 4503(a), the Secretary
Information Act of 1985 (“Pork Act”), 7
                                                  issued an order in March 1984
U.S.C. § 4801 et seq. (invalidated by
                                                  establishing the Dairy Board, 7 C.F.R §
Michigan Pork Producers Ass’n, Inc. v.
                                                  1150.131, and the Board proceeded to
Veneman, 348 F.3d 157 (6th Cir. 2003));
                                                  collect the mandatory assessments from
Mushroom Act, 7 U.S.C. § 6101 et seq.
                                                  all milk producers, 7 C.F.R § 1150.152.
(invalidated in 2001 by United Foods,
                                                  For the Cochrans, the compelled
533 U.S. at 405). Cf. Glickman, 521
                                                  assessments amount to roughly $3,500 to
U.S. at 457 (upholding as constitutional
                                                  $4,000 per year.
marketing orders for California tree fruits
promulgated pursuant to the AMAA, 7
U.S.C. § 608c et seq., which included
compelled assessments to fund, among              other things, generic advertising).

                                              7
        The Dairy Board is composed of           Dairy Board and the DMI Board are
commercial milk producers who are                composed entirely of private milk
nominated by “eligible associations,”            producers and other private parties, and
which are private associations of milk           the Dairy Promotion Program is funded
producers that engage in dairy promotion         entirely by private milk producers
at the state and regional level. Id. §§          through the compelled assessments. The
1150.133, 1150.273. The primary                  Dairy Promotion Program website
consideration in determining an                  explains: “Checkoff programs are funded
organization’s eligibility is “whether its       by dairy producers – NOT
membership consists primarily of milk            TAXPAYERS. They are not
producers who produce a substantial              governmental programs; rather, they are
volume of milk” and whose overriding             businesses with governmental
interests lay in the production and              oversight.” 5
promotion of fluid milk and other dairy
                                                          The Secretary’s oversight
products. Id. § 1150.274(b).
                                                 responsibilities pursuant to the Dairy Act
       In 1994, the Dairy Board created          are conducted by the Agricultural
Dairy Management, Inc. (“DMI”), a                Marketing Service (“AMS”), a division
District of Columbia corporation that            of the USDA, and are limited to ensuring
now oversees and administers the                 that the Dairy Promotion Program is in
promotional activities of the Dairy Act.         compliance with the Act. See, e.g., 7
DMI is a joint undertaking of the Dairy          U.S.C. § 4507(a) (authorizing the
Board and the United Dairy Industry              Secretary to terminate an order issued
Association (“UDIA”), which is an                under the Act only when she determines
association of state and regional dairy          that it “obstructs or does not tend to
promotional programs that are                    effectuate the declared policy of” the
considered “Qualified Programs” under            Act). AM S guidelines explain that “[i]t
the Dairy Act. “Qualified Programs” are          is the policy of AMS in carrying out the
local promotional programs, many of              oversight responsibility to ensure that
which preexisted the Dairy Act, to which         legislative, regulatory, and Department
milk producers may contribute a portion          policy requirements are met. It is not the
of the money they would otherwise pay            intent to impose constraints on board
in assessments under the Act. See 7              operations beyond these requirements.”
U.S.C. § 4504(g)(4), 7 C.F.R. §§                 AMS, Guidelines for AMS Oversight of
1150.152(c), 1150.153. The Act thus              Commodity Research and Promotion
requires dairy farmers to pay either the
full 15 cent per hundredweight
assessment to the Dairy Program or part                 5
                                                          Dairy checkoff Works! – How the
to the Dairy Program and part to a               Dairy Checkoff works, available at
Qualified Program that engages in state          http://www.dairycheckoff.com/howitworks.
or regional generic advertising. The             htm (last visited June 3, 2002 (J.A. at 231)).

                                             8
Programs 1 (1994). The Secretary’s               bound together and obligated by statute
oversight functions for the Dairy                to market their products according to
Program are funded by the compelled              some set of cooperative rules. The
assessments. 7 U.S.C. § 4504(g)(2); 7            district court held that such a cooperative
C.F.R. § 1150.151(b). Moreover, the              arrangement exists for dairy producers,
dairy producers, not the government,             but we conclude otherwise.
control whether the Dairy Promotion
                                                                     A.
Program continues via a referendum
process. 7 U.S.C. § 4506(a).                             The AMAA, 7 U.S.C § 608c,
                                                 permits the Secretary to issue marketing
       All advertising and promotional
                                                 orders that regulate the handling and
programs that are financed by the
                                                 sales of various agricultural
compelled assessments under the Dairy
                                                 commodities, including milk, in different
Act and created by the Dairy Board and
                                                 regions of the country. For milk, the
DM I promote milk as a generic product.
                                                 marketing orders establish a
7 C.F.R. § 1150.114. Among
                                                 classification system and set minimum
advertising campaigns financed by the
                                                 prices that handlers must pay in the
Dairy Promotion Program are “Got milk?
                                                 regions in which the orders apply. See 7
®” and “Ahh, the power of cheese.”
                                                 U.S.C. § 608c(5); 7 C.F.R. § 1000.1 et
                                                 seq. The AM AA applies only to
                                                 “handlers”6 of the covered commodities.
                   III.
                                                 7 U.S.C. §§ 608c(1) & (5)(A).
        In addition to the Dairy Act, the        “Producers,” such as dairy farmers in
dairy industry is subject to a patchwork         general, and Joseph and Brenda Cochran
of federal and state regulatory laws. The        in particular, are specifically exempted
district court noted four federal laws in        from the application of marketing orders.
particular that it deemed relevant to this       Id. § 608c(13)(B) (stating that no
case: (1) the Agricultural Marketing             marketing order “shall be applicable to
Agreement Act of 1937 (“AM AA”), 7               any producer in his capacity as a
U.S.C. § 608c et seq.; (2) the Agriculture       producer”).
Act of 1949, 7 U.S.C. § 1446; (3) import
                                                         Although milk marketing orders
control regulations under 19 U.S.C. §
                                                 restrict the decisions of dairy handlers,
1202; and (4) the Capper-Volstead Act, 7
                                                 they do not interfere with the decisions
U.S.C. § 291.
                                                 of dairy producers, such as the Cochrans,
         An examination of the provisions
of these statutes is crucial to determine
                                                        6
whether these legislative acts, in                      A handler is a person who
conjunction with the Dairy Act, bring the        purchases milk from a producer in an
case at bar within the rubric of Glickman        unprocessed form for the purpose of
– i.e., requiring that milk producers are        processing it.

                                             9
with regard to how much milk to                   the Cochrans, however, are not covered
produce, sell or whether they must sell           by the Agricultural Act and are not
milk at all to dairy handlers. See id. §          permitted to sell their product to the
608c(5).7 At least 25 percent of the milk         government under the price support
sold in the United States is sold outside         program.
of federal milk marketing orders. The
                                                                     C.
Cochrans are able to and do sell much of
their milk outside any milk marketing                    Similarly, the import control
order.                                            regulations under Chapter 4 of the
                                                  Harmonized Tariff Schedule of the
                   B.
                                                  United States, 19 U.S.C. § 1202, subject
        The Agricultural Act of 1949, 7           a multitude of commodities and products
U.S.C. § 1446, establishes a price                to annual import quotas. Although
support program wherein manufacturers             certain dairy products are included –
and processors of cheese, nonfat dry milk         namely butter, dry milk and cheese –
and butter can sell those products to the         fluid milk is not. See 7 C.F.R. Pt. 6,
federal government as buyer of last               Apps. 1, 2, 3.
resort. Producers of fluid milk, such as
                                                                     D.

       7
                                                         Finally, the Capper-Volstead Act,
          Milk marketing orders under the
                                                  7 U.S.C. § 291, permits producers of
AMAA are implemented on a regional
                                                  agricultural products – including milk,
basis. See 7 U.S.C. § 608c(11). Not all
                                                  mushrooms and others – to enter into
parts of the country are covered, and
                                                  manufacturing and marketing
some states – including California,
                                                  cooperatives without fear of violating
Virginia, Maine and M ontana – are
                                                  antitrust laws. It does not, however,
outside the territory of any milk
                                                  require producers to enter into such
marketing order. Portions of
                                                  cooperatives, as federal law expressly
Pennsylvania fall within two different
                                                  protects producers’ freedom not to join
milk marketing regions, the Northeast
                                                  any cooperative. See Agricultural Fair
Area and the M ideast Area. See 7 C.F.R.
                                                  Practices Act of 1967, 7 U.S.C. § 2301 et
§§ 1001.1, 1033.1. Certain portions of
                                                  seq.; Michigan Canners & Freezers
the state, however, including where the
                                                  Ass’n, Inc. v. Agric. Mktg. & Bargaining
Cochrans are located, fall outside of any
                                                  Bd., 467 U.S. 461, 477-478 (1984). The
federal milk marketing order. The effect
                                                  Cochrans do not belong to any
of the AMAA provisions is that any
                                                  cooperatives protected by the antitrust
particular producer’s milk is subject to a
                                                  exemption created by the Capper-
marketing order only if the producer
                                                  Volstead Act.
chooses to sell to a regulated handler in
an area covered by a marketing order.                                E.
See id. §§ 1001.13, 1033.13.

                                             10
       Considering the foregoing                  expressed when [the government] is the
provisions of the Dairy Act and other             speaker or when [the government] enlists
statutes governing the dairy industry, we         private entities to convey its own
now turn to the First Amendment issues            message.” Rosenberger v. Rector &
that constitute the heart of this appeal.8        Visitors of the Univ. of Virginia, 515
                                                  U.S. 819, 833 (1995).
                                                          The Court has not decided
                   IV.
                                                  whether speech generated under
        We must first consider whether            commodity promotion laws such as the
the compelled assessments generated               Dairy Act constitutes government speech
under the Dairy Act constitute private or         and is thereby immune from First
government speech. Although the                   Amendment scrutiny.9 But in Frame, this
district court did not address this issue,        court did meet the issue. 885 F.2d at
the Government contended before the               1132-1133.
district court that the expressions
                                                          In line with our sister Courts of
generated under the Dairy Act constitute
                                                  Appeals in Michigan Pork Producers
government speech. Therefore, the issue
                                                  Ass’n, Inc. v. Veneman, 348 F.3d 157,
is subject to our review.
                                                  161-162 (6th Cir. 2003) and Livestock
       The First Amendment prohibits              Marketing Ass’n v. U.S. Dep’t of Agric.,
the government from regulating private            335 F.3d 711, 720 (8th Cir. 2003), we
speech based on its content, but the Court        held that the Beef Promotion Program
has “permitted the government to                  was not government speech because it
regulate the content of what is or is not         required only beef producers to fund it
                                                  and it attributed the advertising under the
       8
                                                  program to the beef producers. Frame,
          The United States District Court
                                                  885 F.2d at 1132-1133. Recognizing that
for the Middle District of Pennsylvania
                                                  the Beef Promotion Program directed the
had jurisdiction pursuant to 28 U.S.C. §
1331 based on the Cochrans’ First
                                                         9
Amendment claim. We have jurisdiction                     The two decisions of the Court
in this timely appeal pursuant to 28              involving commodity promotion
U.S.C. §§ 1291. We review de novo the             programs do not address the issue of
constitutionality of an Act of Congress.          government speech. In Glickman, the
Dyszel v. Marks, 6 F.3d 116, 123 (3d              Secretary of Agriculture waived the issue
Cir. 1993). Similarly, our review of the          by not pursuing it before the Supreme
district court's granting of judgment on          Court. 521 U.S. at 482 n.2 (Souter, J.,
the pleadings and summary judgment is             dissenting). In United Foods, the Court
plenary. Anker Energy Corp. v.                    refused to address the issue because the
Consolidation Coal Co., 177 F.3d 161,             government failed to raise it before the
169 (3d Cir. 1999).                               Court of Appeals. 533 U.S. at 416-417.

                                             11
Secretary to appoint all Cattlemen Board           Secretary’s supervisory responsibilities
members and approve all budgets, plans,            are not sufficient to transform the dairy
contracts and projects entered into by the         industry’s self-help program into
Board, this court nevertheless concluded           “government speech.” On the dairy
that “[t]he Secretary’s extensive                  checkoff website, the government itself
supervision . . . does not transform this          describes the Dairy Promotion Program
self-help program for the beef industry            as a non-governmental program,
into ‘government speech.’” We                      financed and directed by dairy farmers.
explained:
                                                          Although this court’s First
       The Cattlemen’s Board seems to              Amendment discussion and ultimate
       be an entity “representative of one         holding in Frame have been abrogated by
       segment of the population, with             Glickman and United Foods, none of the
       certain common interests.”                  Court’s subsequent decisions regarding
       Members of the Cattlemen’s                  “government speech” undermine our
       Board and the Operating                     analysis of that issue in Frame.10
       Committee, though appointed by
       the Secretary, are not government
       officials, but rather, individuals                 10
                                                             Notwithstanding the
       from the private sector. The pool           Government’s assertions to the contrary,
       of nominees from which the                  we are not convinced that any decisions
       Secretary selects Board members,            rendered by the Court in the years
       moreover, are determined by                 following our decision in Frame require
       private beef industry                       us to cast aside the government speech
       organizations from the various              analysis we performed in Frame. See
       states. Furthermore, the State              Legal Servs. Corp. v. Velazquez, 531
       organizations eligible to                   U.S. 533 (2001) (concluding that
       participate in Board nominations            restrictions placed on the private speech
       are those that “have a history of           of a lawyer receiving government
       stability and permanency,” and              funding from the Legal Services
       whose “primary or overriding                Corporation were unconstitutional); Bd.
       purpose is to promote the                   of Regents of the Univ. of Wis. Sys. v.
       economic welfare of cattle                  Southworth, 529 U.S. 217 (2000) (stating
       producers.”                                 in dicta, in a case where the government
Id. at 1133 (quoting 7 U.S.C. §                    affirmatively disavowed any connection
2905(b)(3) & (4)). The government’s                to the speech involved, that a
role in the Dairy Promotion Program is in          government speech analysis might apply
all material respects the same as it was in        if a state university used general tuition
the Beef Promotion Program, and under              money to fund speech attributed to the
the precedent established in Frame, the            school or its administrators); Lebron v.
                                                   Nat’l R.R. Passenger Corp., 513 U.S. 374

                                              12
Accordingly, we conclude that this is a         expressive associations with which they
private speech case, and thus is not            disagree. See United Foods, 533 U.S. at
immune from First Amendment scrutiny.           411. “First Amendment values are at
                                                serious risk if the government can
                   V.
                                                compel a particular citizen, or a discrete
        The teachings of United Foods           group of citizens, to pay special subsidies
require us to decide whether the dairy          for speech on the side that it favors . . . .
producers are “bound together and               As a consequence, the compelled funding
required by the statute to market their         for the advertising must pass First
products according to cooperative               Amendment scrutiny.” Id. The
rules[,]” 533 U.S. at 412, for purposes         individual’s disagreement can be minor,
other than advertising, or speech. That         as “[t]he general rule is that the speaker
is our next task.                               and the audience, not the government,
                                                assess the value of the information
       The Cochrans contend that the
                                                presented.” Id. (quoting Edenfield v.
Dairy Act violates their First Amendment
                                                Fane, 507 U.S. 761, 767 (1993)). When,
free speech and association rights by
                                                however, regulation compelling funding
compelling them to subsidize generic
                                                for speech is ancillary to a broader
advertising that promotes milk produced
                                                collective enterprise that otherwise
by methods they view as wasteful and
                                                restricts the individual’s market
harmful to the environment.
                                                autonomy, it is considered “economic
        The First Amendment protects the        regulation,” which enjoys a “strong
right to refrain from speaking and the          presumption of validity” when facing a
right to refrain from association. See,         First Amendment challenge. See
e.g., Wooley, 430 U.S. at 714.                  Glickman, 521 U.S. at 477.
Moreover, the government may not
                                                       We conclude that in upholding as
compel individuals to fund speech or
                                                constitutional the compelled subsidies
                                                under the Dairy Act, the district court
(1995) (holding that Amtrak is a                misapplied Glickman and misconstrued
government actor for First Amendment            the effect of the “entire regulatory
purposes because it was created by              scheme applicable to milk producers . . .
statute to further government objectives        .” (District Court Op. at 15 n. 5.) The
and the government maintained                   Court in United Foods made clear that
substantial control over its daily              Glickman applied only in circumstances
operations); Rust v. Sullivan, 511 U.S.         similar to Abood and Keller – in which
173 (1991) (concluding that the                 individuals are “bound together” in a
government can prevent private doctors          collective enterprise, such as a union or
at family planning clinics that receive         an integrated state bar, and the compelled
federal funding from providing abortion         subsidies are the “logical concomitant of
counseling).                                    a valid scheme of economic regulation.”

                                           13
533 U.S. at 412.                                    scale dairy producers, the Cochrans are
                                                    exempted from the regional marketing
         The provisions of the Dairy Act
                                                    orders under the AMAA and have chosen
do not require milk producers to
                                                    not to enter into manufacturing and
participate in a collective enterprise and
                                                    marketing cooperatives. They, and they
do not compel them to market their
                                                    alone, determine how much milk to
product, fluid milk, according to any
                                                    produce, how to sell and market it and to
rules of a cooperative. Although the
                                                    whom it will be sold. Nevertheless under
dairy industry is “regulated” in the sense
                                                    the Dairy Act they are compelled to pay
that it is subject to a patchwork of state
                                                    assessments to subsidize generic dairy
and federal laws, there is no association
                                                    advertising, a form of speech with which
that all milk producers must join that
                                                    they are in total disagreement. Cf.
would make the entire industry
                                                    Glickman, 521 U.S. at 471 (noting that
analogous to a union, an integrated bar or
                                                    “none of the generic advertising conveys
the collective enterprise at issue in
                                                    any message with which respondents
Glickman.
                                                    disagree”).
       The Dairy Act is a free-standing
                                                           Furthermore, as the Court in
promotional program that applies to all
                                                    United Foods determined that speech is
dairy producers regardless of whether
                                                    the principal purpose of the Mushroom
they are subject to marketing orders or
                                                    Act, so it is of the Dairy Act. 11 Indeed,
any other dairy regulations. It is not
ancillary to any collective enterprise or
compelled association with a non-speech
                                                           11
purpose because there is no such                           Congress’ declared policy of the
enterprise or association for milk that             Mushroom Act was
encompasses all dairy producers. Indeed,
the AMAA provision for milk marketing                      that it is in the public interest to
orders, which preexisted the Dairy Act,                    authorize the establishment,
authorizes the Secretary and marketing                     through the exercise of the powers
administrators to create dairy                             provided in this chapter, of an
promotional programs that literally                        orderly procedure for developing,
would be ancillary to the regulatory                       financing through adequate
aspects of the milk marketing orders.                      assessments on mushrooms
See 7 U.S.C. 608c(5)(I). Congress chose                    produced domestically or
not to utilize this precise provision of the               imported into the United States,
AMAA, however, and instead adopted an                      and carrying out, an effective,
entirely separate program which does not                   continuous, and coordinated
operate in concert with any collective                     program of promotion, research,
aspect of any milk marketing order.                        and consumer and industry
                                                           information designed to – (1)
       Moreover, as independent small-                     strengthen the mushroom

                                               14
“almost all of the funds collected under           Amendment free speech and
the mandatory assessments are for one              associational rights issue. But our
purpose: generic advertising.” United              determination that the Act’s compelled
Foods, 533 U.S. at 412. In United                  assessments for generic advertising
Foods, the Court made clear that                   implicate the Cochrans’ First
compelled subsidies may not be upheld              Amendment rights does not end our
where they are only germane to a                   inquiry. As this court held in Frame,
program whose “principal object is                 “[t]he rights of free speech and
speech itself.” Id. at 415.                        association are not absolute. Thus, we
                                                   must next identify the proper standard for
       We conclude, therefore, that being
                                                   evaluating whether the statute . . .
compelled to fund advertising pursuant
                                                   nevertheless passes constitutional
to the Dairy Act raises a First
                                                   muster.” 885 F.2d at 1133.12


       industry’s position in the
                                                          12
       marketplace; (2) maintain and                          Upon concluding that milk
       expand existing markets and uses            producers are regulated to a similar
       for mushrooms; and (3) develop              degree as the California tree fruit
       new markets and uses for                    growers in Glickman, the district court
       mushrooms.                                  applied a three-part test set forth by the
                                                   Supreme Court in Glickman: (1) whether
7 U.S.C. § 6101(b). Congress’ declared             the Act imposes a restraint on the
purpose for the Dairy Act is                       freedom to communicate; (b) whether the
                                                   Act compels any person to engage in any
       that it is in the public interest to        actual or symbolic speech; (c) whether
       authorize the establishment . . . of        the Act compels dairy producers to
       an orderly procedure for financing          endorse or finance any political or
       (through assessments on all milk            ideological views. (District Court Op. at
       produced in the United States for           16-18.) This test, however, is
       commercial use and on imported              inappropriate because, like the Supreme
       dairy products) and carrying out a          Court in United Foods, we have
       coordinated program of promotion            concluded that the Dairy Act is not a
       designed to strengthen the dairy            species of economic regulation, as it is
       industry’s position in the                  not ancillary to a more comprehensive
       marketplace and to maintain and             program restricting the marketing
       expand domestic and foreign                 autonomy of dairy farmers. In United
       markets and uses for fluid milk             Foods the Court did not apply this three-
       and dairy products.                         part test. Nor do we.

7 U.S.C. § 4501(b).

                                              15
                    VI.                             be designed carefully to achieve the
                                                    State’s goal.” 447 U.S. at 564.
        This case is properly characterized
                                                    Commercial speech is “expression
as a compelled commercial speech case.
                                                    related solely to the economic interests of
See United Foods, 533 U.S. at 410;
                                                    the speaker and its audience.” Id. at 561.
Frame, 885 F.2d at 1146 (Sloviter, J.,
dissenting). The Supreme Court,                             But the Court has left open the
however, has left unresolved the standard           question of whether Central Hudson’s
for determining the validity of laws                more relaxed First Amendment test
compelling commercial speech, and the               applies to cases involving compelled
circuit courts are divided on the issue.            commercial speech. In United Foods the
There are at least four variations in the           Court stepped back from addressing the
judiciary’s cumulative experience. One              issue in ipsis verbis, explaining: “the
is the more lenient standard applied to             Government itself does not rely upon
commercial speech cases. See Central                Central Hudson to challenge the Court of
Hudson Gas & Elec. Corp. v. Pub. Serv.              Appeals’ decision, . . . and we therefore
Comm’n, 447 U.S. 557, 564 (1980).                   do not consider whether the
Another is the “germaneness” test of                Government’s interest could be
compelled speech cases. See, e.g.,                  considered substantial for purposes of the
Abood, 431 U.S. at 235-236. Still                   Central Hudson test.” 533 U.S. at 410.
another is an adaptation of the                     Nevertheless, in the earlier case of
commercial speech standard. See                     Glickman, the Court questioned the
Livestock Marketing, 335 F.3d at 722-               application of the commercial speech test
723. And, in Frame, a pre-Glickman and              to compelled speech cases:
pre-United Foods case, this court applied
                                                           The Court of Appeals fails to
the stringent level of scrutiny for
                                                           explain why the Central Hudson
associational rights cases. 885 F.2d at
                                                           test, which involved a restriction
1134. We now summarize the various
                                                           on commercial speech, should
standards.
                                                           govern a case involving the
                    A.                                     compelled funding of speech.
                                                           Given the fact that the Court of
       In Central Hudson, the Supreme
                                                           Appeals relied on Abood for the
Court held that to evaluate the
                                                           proposition that the program
constitutionality of regulatory restrictions
                                                           implicates the First Amendment, it
on commercial speech the Constitution
                                                           is difficult to understand why the
requires only intermediate scrutiny –
                                                           Court of Appeals did not apply
namely, that (1) the state must “assert a
                                                           Abood’s “germaneness” test.
substantial government interest”; (2) “the
regulatory technique must be in                     521 U.S. at 474 n. 18.
proportion to that interest”; and (3) the
                                                           Indeed, in United Foods,
incursion on commercial speech “must

                                               16
notwithstanding its specific disclaimer            under the Dairy Act are germane to
regarding Central Hudson, the Court                nothing but the speech itself. “[A]lmost
seemingly applied the “germaneness”                all of the funds collected under the
test:                                              mandatory assessments are for one
                                                   purpose: generic advertising.” Id. at 412.
       The only program the
                                                   It would thus seem that the Dairy Act
       Government contends the
                                                   would not survive Abood’s germaneness
       compelled contributions serve is
                                                   test.
       the very advertising scheme in
       question. Were it sufficient to say                Other courts have applied the
       speech is germane to itself, the            germaneness test to cases involving
       limits observed in Abood and                compelled assessments pursuant to
       Keller would be empty of                    promotional programs and have rejected
       meaning and significance. The               the application of Central Hudson. See,
       cooperative marketing structure             e.g., Michigan Pork, 348 F.3d at 163
       relied upon by a majority of the            (noting that “[e]ven assuming that the
       Court in Glickman to sustain an             advertising funded by the [Pork] Act is
       ancillary assessment finds no               indeed commercial speech, the more
       corollary here; the expression              lenient standard of review applied to
       respondent is required to support           limits on commercial speech has never
       is not germane to a purpose                 been applied to speech – commercial or
       related to an association                   otherwise – that is compelled”); In re
       independent from the speech                 Washington State Apple Adver.
       itself; and the rationale of Abood          Comm’n, 257 F. Supp. 2d 1274, 1287
       extends to the party who objects            (E.D. Wash. 2003) (concluding that
       to the compelled support for this           “[b]ecause the Commission’s
       speech. For these and other                 assessments do not restrict speech, it is
       reasons we have set forth, the              inappropriate to apply the Central
       assessments are not permitted               Hudson test for restrictions on
       under the First Amendment.                  commercial speech”).
533 U.S. at 415-416 (emphasis added).                     In Livestock Marketing, however,
                                                   the Eighth Circuit concluded that an
        As we previously explained, the
                                                   adaptation of the Central Hudson test
purpose of the Dairy Act is in all material
                                                   applied, explaining that “Central Hudson
respects the same as that of the
                                                   and the case at bar both involve
Mushroom Act at issue in United Foods,
                                                   government interference with private
and the Dairy Act is not ancillary to a
                                                   speech in a commercial context.” 335
broader cooperative marketing regime
                                                   F.3d at 722. All the same, the court
like the fruit tree marketing orders at
                                                   concluded that the Beef Act did not
issue in Glickman. The compelled
                                                   survive the intermediate scrutiny of
assessments for generic dairy advertising

                                              17
Central Hudson. Id. at 725-726. Relying                   Court in evaluating the
on the reasoning set forth in United                      permissibility of regulation of
Foods, the court determined that the beef                 commercial speech [in Central
checkoff program is in all material                       Hudson] . . . . While the
respects identical to the mushroom                        government has a general interest
checkoff program, and concluded that                      in the health of the beef industry,
“the government’s interest in protecting                  it does not follow that the
the welfare of the beef industry by                       government has a substantial
compelling all beef producers and                         interest in compelling the beef
importers to pay for generic beef                         industry to make and support such
advertising is not sufficiently substantial               a promotion campaign. Instead, . .
to justify the infringement on appellees’                 . the messages represent the
First Amendment free speech right.” Id.                   economic interests of one segment
                                                          of the population . . . .
       Finally, in Frame, which was
decided before the teachings of both               Id. at 1146-1147 (Sloviter, J., dissenting)
Glickman and United Foods, this court              (citations and internal quotations
applied the stringent associational rights         omitted).
standard but nevertheless upheld the
                                                          As in Frame, the Government here
constitutionality of the Beef Act, 7
                                                   argues that it has a sufficient interest in
U.S.C. § 2901 et seq. Back in 1989, this
                                                   increasing the demand for an agricultural
court concluded that the government’s
                                                   product. Moreover, the Government
interest in “maintaining and expanding
                                                   contends that it has an interest in
beef markets proves . . . compelling[,]”
                                                   decreasing its obligation to purchase
and “[m]aintenance of the beef industry
                                                   dairy products under the price support
ensures preservation of the American
                                                   program, 7 U.S.C § 1446. We previously
cattlemen’s traditional way of life.”
                                                   have emphasized, however, that the
Frame, 885 F.2d at 1134-1135 (citations
                                                   Court’s subsequent holding in United
omitted).
                                                   Foods that clarified and limited the
       Judge Sloviter, however,                    teachings of Glickman, cut away the
dissented on this issue in Frame:                  underpinning of this court’s analysis in
                                                   Frame. United Foods makes clear that
       I doubt that the type of compelled
                                                   the government may not compel
       speech at issue here can be
                                                   individuals to support an advertising
       justified on any basis.
                                                   program for the sole purpose of
       Nonetheless, I do not reach the
                                                   increasing demand for that product. 533
       majority’s stringent associational
                                                   U.S. at 415. In United Foods, the Court
       rights standard because I believe
                                                   concluded that the Mushroom Act’s
       that no justification can be found,
                                                   compelled subsidies would be
       even under the less exacting
                                                   unconstitutional even under the lesser
       criteria adopted by the Supreme

                                              18
scrutiny accorded to commercial speech.                                B.
Id. at 410.
                                                           In light of the reluctance of the
       Although the Government’s                   Supreme Court in United Foods to enter
contention that it has a substantial               the controversy over the applicable
interest in decreasing its obligation under        scrutiny for compelled commercial
the dairy price support program is                 speech cases, however, we will follow
somewhat unique from the government                suit. “[W]e find no basis under either
interest asserted in United Foods, this            Glickman or our other precedents to
interest is undermined by the fact that as         sustain the compelled assessments sought
a stand-alone statute, the Dairy Act does          in this case.” 533 U.S. at 410.13
not operate in conjunction with the price
                                                          The compelled assessments for
support program. Indeed, producers of
                                                   generic dairy advertising under the Dairy
liquid milk such as the Cochrans are not
                                                   Act relate to speech and only to speech.
covered by the support program.
                                                   Indeed, “almost all of the funds collected
Moreover, reductions in the
                                                   under the mandatory assessments are for
government’s obligations under the price
                                                   one purpose: generic advertising.” Id. at
support program are insignificant to the
                                                   412.
Dairy Promotion Program’s existence, as
whether the compelled assessments                         Measured by any degree of
continue is controlled by the dairy                scrutiny set forth in the foregoing
producers via the referendum process. 7            discussion, we conclude that this case
U.S.C. § 4506(a).                                  runs on all fours with the teachings and
                                                   holding of United Foods, and
       We conclude, therefore, that the
                                                   accordingly hold that the Dairy
government’s interest in promoting the
                                                   Promotion Stabilization Act of 1983 does
dairy industry is not sufficiently
                                                   not survive the First Amendment
substantial to justify the infringement on
                                                   challenge lodged by Appellants Joseph
the Cochran’s First Amendment free
                                                   and Brenda Cochran. The district court
speech and association rights. As Judge
                                                   erred in sustaining the constitutionality
Sloviter suggested in her dissent in
                                                   of the Dairy Act on the basis of
Frame, promotional programs such as the
                                                   Glickman.
Dairy Act seem to really be special
interest legislation on behalf of the                              *****
industry’s interest more so than the
government’s. We believe that the
                                                          13
Supreme Court reached the same                               We reach this conclusion
conclusion by ruling in United Foods that          whether accepting the standard explicitly
the compelled assessments pursuant to              expressed in Frame or deciding that in
the Mushroom Act are not permitted by              view of the Court’s discussion in United
the First Amendment.                               Foods, that standard is not longer
                                                   controlling.

                                              19
        In sum, we conclude that the                 at Part VI-A. Twice – in both Glickman
generic advertising pursuant to the Dairy            and United Foods – the Supreme Court has
Promotion Stabilization Act of 1983 does             questioned the need for engaging in a
not constitute government speech and is              Central Hudson analysis.14 And, I think it
therefore subject to First Amendment
scrutiny. We hold that the Dairy Act
                                                            14
violates the Cochrans’ First Amendment                         The Court has not treated these
free speech and associational rights.                cases as involving a discrete commercial
                                                     speech issue, instead indicating that “[t]he
Although the dairy industry may be
                                                     question is whether the government may
subject to a labyrinth of federal
                                                     underwrite and sponsor speech with a
regulation, the Dairy Act is a stand-alone           certain viewpoint using special subsidies
law and the compelled assessments for                exacted from a designated class of persons,
generic dairy advertising are not germane            some of whom object to the idea being
to a larger regulatory purpose other than            advanced.” United Foods, 533 U.S. at 410;
the speech itself.                                   see also id. (stating that, even if commercial
                                                     speech is less protected than other speech,
       The judgment of the district court
                                                     there is “no basis under either Glickman or
sustaining the constitutionality of the              our other precedents to sustain the
Dairy Promotion Stabilization Act of                 compelled assessments,” but refusing to
1983 will be reversed and the proceedings            consider “whether the Government’s interest
remanded with a direction to enter a                 could be considered substantial for purposes
decree in favor of Appellants in                     of the Central Hudson test”); Glickman, 521
accordance with the foregoing.                       U.S. at 474 & n.18 (noting that it was “error
                                                     for the [Ninth Circuit] to rely on Central
                                                     Hudson for the purpose of testing the
RENDELL, Circuit Judge, concurring.                  constitutionality of market order
                                                     assessments for promotional advertising,”
                                                     and stating that the Ninth Circuit “fails to
                                                     explain why the Central Hudson test, which
        I join in our opinion and judgment           involved a restriction on commercial speech,
but write separately to register my view             should govern a case involving the
that, having found that the assessments do           compelled funding of speech”). In fact, in
not pass muster under the Supreme Court’s            United Foods the Court appears to explicitly
analysis in United Foods, and, having noted          endorse the applicability of the
at the end of Pat IV that the compelled              Abood/Keller germaneness test: “It is true
subsidies were assessed to support a                 that the party who protests the assessment
program whose principal object was speech            here is required simply to support speech by
itself, we need not engage in the exercise of        others, not to utter the speech itself. We
determining the “standard” regarding the             conclude, however, that the mandated
                                                     support is contrary to the First Amendment
extent of the government’s interest for
                                                     principles set forth in cases involving
purposes of a commercial speech analysis
                                                     expression by groups which include persons
under Central Hudson, as the opinion does            who object to the speech, but who,

                                                20
unnecessary to apply Central Hudson in             Second, is the assessment regulation
light of the Court’s analysis in United            related to and in furtherance of other non-
Foods.15                                           speech purposes, carrying out other aspects
                                                   to further other economic, societal, or
       In United Foods the Court
                                                   governmental goals? Id. at 415. Even if
distinguished the situation it faced from the
                                                   the answer to the first question is “no,” the
one it considered in Glickman by
                                                   assessment might nonetheless be permitted
examining the following question: Is the
                                                   if it is not only related to speech. This
challenged assessment part of a “broader
                                                   second inquiry could signal consideration
regulatory system” that does not have
                                                   of “germaneness” if, in fact, other goals
speech as its primary object. 533 U.S. at
                                                   were implicated. But here, we answered
415. There appear to be two parts to this
                                                   “no” to both questions: we decided that the
basic inquiry. First, are the plaintiffs part
                                                   Cochrans did not surrender their freedom
of a group that is “bound together and
                                                   to make independent competitive choices
required . . . to market their products
                                                   to any collective enterprise, and we
according to cooperative rules?” Id. at 412.
                                                   concluded that speech was the only
                                                   purpose of the Dairy Act. Thus, it was
                                                   purely “compelled speech,” forbidden by
nevertheless, must remain members of the           United Foods under any level of scrutiny.
group by law or necessity.” 533 U.S. at 413
                                                   533 U.S. at 410. In fact, after discussing
(citing Abood and Keller).
                                                   the various standards potentially applicable
       15
          The Sixth Circuit, in Michigan Pork      here, Judge Aldisert clearly states in the
Producers Ass’n, Inc. v. Veneman, 348 F.3d         ensuing Part VI-B that under any level of
157 (6th Cir. 2003), also rejected the             scrutiny, the assessments for speech only
application of the Central Hudson test to an       do not pass constitutional muster given
assessment created by a similar promotional        United Foods. The analysis in Part VI-A
program. I find that court’s comments on this      regarding the proper level of scrutiny is
matter to be instructive: “[W]e find               therefore unnecessary, and, I believe,
inapplicable to this case the relaxed scrutiny     dicta.
of commercial speech analysis provided for
by Central Hudson, and relied upon by
Appellants. The Pork Act does not directly
limit the ability of pork producers to express
a message; it compels them to express a
message with which they do not agree. Even
assuming that the advertising funded by the
Act is indeed commercial speech, the more
lenient standard of review applied to limits
on commercial speech has never been applied
to speech – commercial or otherwise – that is
compelled. It is one thing to force someone
to close her mouth; it is quite another to force
her to become a mouthpiece.” Id. at 163
(citation omitted).
