Teachers’ “compelled speech” victory could spill over to farmers

Hans, you’re right that the Supreme Court’s ruling yesterday in Davenport v. Washington Education Association was a victory for the First Amendment.

After the Washington state Supreme Court turned the First Amendment, as you said, upside down, by ruling that the state initiative requiring consent of teachers for union political advocacy violates the union’s free speech rights, the U.S. Supreme Court unanimously ruled that the First Amendment gives the greater protection to individual teachers from being forced to fund speech they disagree with. In the press release CEI sent out yesterday hailing the teachers’ victory that we had argued for when we signed on to an amicus brief in the case, we again pointed to Jefferson’s adage that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.”

In the opinion written by Antonin Scalia, which was unanimous except for a few sections, the Court clearly sympathized with Jefferson’s view about the tyranny of compelled speech. Thus, it could give an indication of how the Court would rule in other cases in which the government has forced certain buisness people or professionals to pay fees to a private organization.

The one that immediately comes to my mind is mandatory checkoffs for agriculture promotion boards for certain commodities. Many farmers are forced to fund advertising campaigns for the crops they grow or livestock they raise. The generic ads calling pork “the other white meat” and presenting dancing California raisins are an example.

While these ads may be cute, it goes against the principles of a free market and free society to force farmers to fund them. Farmers may object to the ads, or may want to brand their products individually rather than as part of a group.

For instance, the “Got Milk” campaign featuring celebrities with milk mustaches has won many award and been credited with boosting milk sales. But some dairy farmers, in niche marketing such as organic products, say they would rather promote the quality standards of their farms than show Paris Hilton with a milk moustache. So they are suing, saying this is “compelled speech that violates their First Amendment rights. Producers of products from pork to peaches to plums are also filing suit.

In the past few years, the indepedent farmers have won some impressive First Amendment victories. The advertising magazine Adweek notes that “if the courts continue to line up against the checkoffs, then these famous ads could all be dead within the next couple of years.” Of course, the article notes, this depends on what the Supreme Court does.

Back in the ’90s, the Supreme Court ruled 5-4 that some of these types of collective agriculture ad schemes don’t violate the First Amendment. It was an unusual lineup, with David Souter and the court’s three most conservative justices — Scalia, Clarence Thomas, and the late Chief Justice William Rehnquist — ruling on the side of the First Amendment. But Anthony Kennedy and Sandra Day O’Connor joined the Court’s statist liberals deep-sixing the farmers’ free-speech concerns.

Now, O’Connor has been replaced by Samuel Alito, known to be sensitive to commercial free speech. And Chief Justice John Roberts would likely rule the same way as his mentor Rehnquist. So this relic of the New Deal may finally be declared to be the violation of the First Amendment that it is.