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Farming, checkoffs and freedom of expression By Robert Schubert
(April 2, 2002 – CropChoice opinion) – Some family farmers react less than enthusiastically when a portion of their income is funding programs that they think financially harm their operations and violate their freedom of expression.
Some Tennessee mushroom growers certainly felt that the latter applied, so they took the matter to court. The farmers emerged victorious from the Supreme Court in 2001 (United States v. United Foods, Inc.); http://a257.g.akamaitech.net/7/257/2422/28jun20011200/www.supremecourtus.gov/opinions/00pdf/00-276.pdf
A Nebraska lawyer thinks that soybean and corn growers might find similar judicial system success. A number of such farmers have contacted this publication to voice what they regard as the unfairness of paying money to organizations promoting genetically engineered crop technology that harms their operations both agronomically,
through crop contamination from transgenic varieties, and economically, in terms of markets lost as consumers increasingly reject such foods.
After World War II, various agricultural crop and commodity sectors wanted to promote their products domestically and internationally, so they created checkoff programs. A wool checkoff – the first such nationwide effort – began in the 1950s. The egg, beef, cotton, honey, mushroom, dairy, fluid milk, pork, potato, watermelon, popcorn and soybean growing industry have since created such mechanisms for raising money to further their commodity crops. Various state checkoff programs exist, as well.
In the case of corn, 20 states have funds that collect anywhere from a quarter of a cent to half a penny on each bushel that farmers deliver to the elevator. An elected or appointed board invests the money into research and breeding to improve the crop and then into marketing to increase sales and profits for the industry.
In deciding the mushroom case, the Court framed the question as "one of whether the government may underwrite and sponsor speech with a certain viewpoint using special subsidies exacted from a designated class of persons, some of whom object to the idea being advanced," says Dan Alberts, a lawyer from Lincoln, Neb.
As in the mushroom case, he says, the Nebraska corn check-off is a required assessment on all corn producers. The board of directors administering the checkoff uses the money to promote both commercial speech and political speech; the latter gets more protection under the First Amendment.
Of the money that the Nebraska checkoff raises, 71 percent goes toward marketing (commercial speech) and up to 25 percent toward federal lobbying (political speech).
This being the case, Alberts says, an individual corn producer, or a group of producers, could sue on that basis.
"Governmental requirement that growers pay an assessment that is used primarily for specific viewpoint speech (both political and commercial) to which they object, would make for a valid case to have the check off requirement thrown out as unconstitutional under first amendment law," he says. "In political speech, many corn producers object to the lobbying for legislation that promoted the Freedom to farm policy. On a commercial basis, a farmer of white corn could easily argue that the promotion of yellow corn is objectionable."
Whether it be mushrooms, poultry, pork or grains, a growing number of family farmers are frustrated with paying money to checkoff boards that are supposed to help them, but in reality, they say, benefit the rapidly consolidating agribusiness establishment working to control inputs and outputs from seed to plate.
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