Joseph S. Cochran; Brenda S. Cochran v. ANN VENEMAN, Secretary, U.S. Department of Agriculture; NATIONAL DAIRY PROMOTION BOARD

UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-2522
JOSEPH S. COCHRAN;
BRENDA S. COCHRAN,
Appellants
v.
ANN VENEMAN, Secretary, U.S.
Department of Agriculture;
NATIONAL DAIRY PROMOTION
BOARD
Appellees
And
FRED LOVELL; LEE GREENWALT;
JACKIE ROOT; EARNEST NORMAN;
STEPHEN MASHALL; CECIL
MOYER; JAMES VANBLARCOM
Intervenors-Appellees
Appeal from the United States District
Court for the Middle District of
Pennsylvania
(D.C. Civil No. 02-cv-00529)
District Judge:
Honorable John E. Jones, III
Argued: January 12, 2004
Before: Sloviter, Rendell and Aldisert,
Circuit Judges.
(Filed: February 24, 2004)
Steven M. Simpson (Argued)
Institute for Justice
1717 Pennsylvania Ave., N.W. Suite 200
Washington, DC 20006
Walter T. Grabowski
Holland, Grady & Grabowski
61 North Washington Street
Wilkes-Barre, PA 18701
ATTORNEY FOR APPELLANTS
Thomas A. Marino,
United States Attorney
Matthew M. Collette (Argued)
Douglas N. Letter
Attorneys, Appellate Staff
Civil Division, Room 9008
Department of Justice
Washington, D.C. 20530-0001
ATTORNEY FOR APPELLEES
Richard T. Rossier (Argued)
Alex Mendez
McLeon, Watkinson & Miller
One Massachusetts Ave. N.W. Suite 800
Washington, D.C. 20001
ATTORNEY FOR INTERVENORS-
APPELLEES

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OPINION OF THE COURT
ALDISERT, Cicuit Judge.
The American public is very
familiar with the “Got Milk? ®” ads on
television and in the print media.
This appeal requires us to decide
whether a federal statute may compel a
small dairy farm in Pennsylvania to help
pay for the white-mustache milk
advertisements and other dairy promotions.
Implicated here are general First
Amendment precepts that protect the right
to refrain from speaking and the right to
refrain from association, and the specific
issue of whether the government may
compel individuals to fund speech with
which they disagree.
Joseph and Brenda Cochran are
independent small-scale dairy farmers.
They are not members of any dairy
manufacturing or marketing cooperative.
They alone determine how much milk to
produce, how to sell and market it and to
whom it will be sold.
The Dairy Promotion Stabilization
Act of 1983, 7 U.S.C. § 4501 et seq.
(“Dairy Promotion Act,” “Dairy Act,” or
“Act”), provides for the creation of the
Dairy Promotion Program and authorizes
the Secretary of the Department of
Agriculture (“Secretary”) to issue an order
creating the National Dairy Promotion and
Research Board (“Dairy Board”) to
administer the program. To finance the
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
hundredweight of milk sold.1 Id. §
4504(g); 7 C.F.R. § 1150.152. Neither the
Dairy Act nor the order permits dissenting
milk producers to withhold contributions
for advertising or promotional projects to
which they object.
The Cochrans object to paying
these assessments and filed an action in the
1 The Dairy Act provides:
The order shall provide that each
person making payment to a
producer for milk produced in the
United States and purchased from
the producer shall . . . collect an
assessment based upon the
number of hundredweights of
milk for commercial use handled
for the account of the producer
and remit the assessment to the
Board.
. . .
The rate of assessment for milk . .
. prescribed by the order shall be
15 cents per hundredweight of
milk for commercial use or the
equivalent thereof, as determined
by the Secretary.
7 U.S.C. § 4504(g).

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

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

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

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

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

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

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

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with regard to how much milk to
produce, sell or whether they must sell
milk at all to dairy handlers. See id. §
608c(5).7 At least 25 percent of the milk
sold in the United States is sold outside
of federal milk marketing orders. The
Cochrans are able to and do sell much of
their milk outside any milk marketing
order.
B.
The Agricultural Act of 1949, 7
U.S.C. § 1446, establishes a price
support program wherein manufacturers
and processors of cheese, nonfat dry milk
and butter can sell those products to the
federal government as buyer of last
resort. Producers of fluid milk, such as
the Cochrans, however, are not covered
by the Agricultural Act and are not
permitted to sell their product to the
government under the price support
program.
C.
Similarly, the import control
regulations under Chapter 4 of the
Harmonized Tariff Schedule of the
United States, 19 U.S.C. § 1202, subject
a multitude of commodities and products
to annual import quotas. Although
certain dairy products are included –
namely butter, dry milk and cheese –
fluid milk is not. See 7 C.F.R. Pt. 6,
Apps. 1, 2, 3.
D.
Finally, the Capper-Volstead Act,
7 U.S.C. § 291, permits producers of
agricultural products – including milk,
mushrooms and others – to enter into
manufacturing and marketing
cooperatives without fear of violating
antitrust laws. It does not, however,
require producers to enter into such
cooperatives, as federal law expressly
protects producers’ freedom not to join
any cooperative. See Agricultural Fair
Practices Act of 1967, 7 U.S.C. § 2301 et
seq.; Michigan Canners & Freezers
Ass’n, Inc. v. Agric. Mktg. & Bargaining
Bd., 467 U.S. 461, 477-478 (1984). The
Cochrans do not belong to any
cooperatives protected by the antitrust
exemption created by the Capper-
Volstead Act.
E.
7 Milk marketing orders under the
AMAA are implemented on a regional
basis. See 7 U.S.C. § 608c(11). Not all
parts of the country are covered, and
some states – including California,
Virginia, Maine and M ontana – are
outside the territory of any milk
marketing order. Portions of
Pennsylvania fall within two different
milk marketing regions, the Northeast
Area and the M ideast Area. See 7 C.F.R.
§§ 1001.1, 1033.1. Certain portions of
the state, however, including where the
Cochrans are located, fall outside of any
federal milk marketing order. The effect
of the AMAA provisions is that any
particular producer’s milk is subject to a
marketing order only if the producer
chooses to sell to a regulated handler in
an area covered by a marketing order.
See id. §§ 1001.13, 1033.13.

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

-- 11 of 21 --

12
Secretary to appoint all Cattlemen Board
members and approve all budgets, plans,
contracts and projects entered into by the
Board, this court nevertheless concluded
that “[t]he Secretary’s extensive
supervision . . . does not transform this
self-help program for the beef industry
into ‘government speech.’” We
explained:
The Cattlemen’s Board seems to
be an entity “representative of one
segment of the population, with
certain common interests.”
Members of the Cattlemen’s
Board and the Operating
Committee, though appointed by
the Secretary, are not government
officials, but rather, individuals
from the private sector. The pool
of nominees from which the
Secretary selects Board members,
moreover, are determined by
private beef industry
organizations from the various
states. Furthermore, the State
organizations eligible to
participate in Board nominations
are those that “have a history of
stability and permanency,” and
whose “primary or overriding
purpose is to promote the
economic welfare of cattle
producers.”
Id. at 1133 (quoting 7 U.S.C. §
2905(b)(3) & (4)). The government’s
role in the Dairy Promotion Program is in
all material respects the same as it was in
the Beef Promotion Program, and under
the precedent established in Frame, the
Secretary’s supervisory responsibilities
are not sufficient to transform the dairy
industry’s self-help program into
“government speech.” On the dairy
checkoff website, the government itself
describes the Dairy Promotion Program
as a non-governmental program,
financed and directed by dairy farmers.
Although this court’s First
Amendment discussion and ultimate
holding in Frame have been abrogated by
Glickman and United Foods, none of the
Court’s subsequent decisions regarding
“government speech” undermine our
analysis of that issue in Frame.10
10Notwithstanding the
Government’s assertions to the contrary,
we are not convinced that any decisions
rendered by the Court in the years
following our decision in Frame require
us to cast aside the government speech
analysis we performed in Frame. See
Legal Servs. Corp. v. Velazquez, 531
U.S. 533 (2001) (concluding that
restrictions placed on the private speech
of a lawyer receiving government
funding from the Legal Services
Corporation were unconstitutional); Bd.
of Regents of the Univ. of Wis. Sys. v.
Southworth, 529 U.S. 217 (2000) (stating
in dicta, in a case where the government
affirmatively disavowed any connection
to the speech involved, that a
government speech analysis might apply
if a state university used general tuition
money to fund speech attributed to the
school or its administrators); Lebron v.
Nat’l R.R. Passenger Corp., 513 U.S. 374

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13
Accordingly, we conclude that this is a
private speech case, and thus is not
immune from First Amendment scrutiny.
V.
The teachings of United Foods
require us to decide whether the dairy
producers are “bound together and
required by the statute to market their
products according to cooperative
rules[,]” 533 U.S. at 412, for purposes
other than advertising, or speech. That
is our next task.
The Cochrans contend that the
Dairy Act violates their First Amendment
free speech and association rights by
compelling them to subsidize generic
advertising that promotes milk produced
by methods they view as wasteful and
harmful to the environment.
The First Amendment protects the
right to refrain from speaking and the
right to refrain from association. See,
e.g., Wooley, 430 U.S. at 714.
Moreover, the government may not
compel individuals to fund speech or
expressive associations with which they
disagree. See United Foods, 533 U.S. at
411. “First Amendment values are at
serious risk if the government can
compel a particular citizen, or a discrete
group of citizens, to pay special subsidies
for speech on the side that it favors . . . .
As a consequence, the compelled funding
for the advertising must pass First
Amendment scrutiny.” Id. The
individual’s disagreement can be minor,
as “[t]he general rule is that the speaker
and the audience, not the government,
assess the value of the information
presented.” Id. (quoting Edenfield v.
Fane, 507 U.S. 761, 767 (1993)). When,
however, regulation compelling funding
for speech is ancillary to a broader
collective enterprise that otherwise
restricts the individual’s market
autonomy, it is considered “economic
regulation,” which enjoys a “strong
presumption of validity” when facing a
First Amendment challenge. See
Glickman, 521 U.S. at 477.
We conclude that in upholding as
constitutional the compelled subsidies
under the Dairy Act, the district court
misapplied Glickman and misconstrued
the effect of the “entire regulatory
scheme applicable to milk producers . . .
.” (District Court Op. at 15 n. 5.) The
Court in United Foods made clear that
Glickman applied only in circumstances
similar to Abood and Keller – in which
individuals are “bound together” in a
collective enterprise, such as a union or
an integrated state bar, and the compelled
subsidies are the “logical concomitant of
a valid scheme of economic regulation.”
(1995) (holding that Amtrak is a
government actor for First Amendment
purposes because it was created by
statute to further government objectives
and the government maintained
substantial control over its daily
operations); Rust v. Sullivan, 511 U.S.
173 (1991) (concluding that the
government can prevent private doctors
at family planning clinics that receive
federal funding from providing abortion
counseling).

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14
533 U.S. at 412.
The provisions of the Dairy Act
do not require milk producers to
participate in a collective enterprise and
do not compel them to market their
product, fluid milk, according to any
rules of a cooperative. Although the
dairy industry is “regulated” in the sense
that it is subject to a patchwork of state
and federal laws, there is no association
that all milk producers must join that
would make the entire industry
analogous to a union, an integrated bar or
the collective enterprise at issue in
Glickman.
The Dairy Act is a free-standing
promotional program that applies to all
dairy producers regardless of whether
they are subject to marketing orders or
any other dairy regulations. It is not
ancillary to any collective enterprise or
compelled association with a non-speech
purpose because there is no such
enterprise or association for milk that
encompasses all dairy producers. Indeed,
the AMAA provision for milk marketing
orders, which preexisted the Dairy Act,
authorizes the Secretary and marketing
administrators to create dairy
promotional programs that literally
would be ancillary to the regulatory
aspects of the milk marketing orders.
See 7 U.S.C. 608c(5)(I). Congress chose
not to utilize this precise provision of the
AMAA, however, and instead adopted an
entirely separate program which does not
operate in concert with any collective
aspect of any milk marketing order.
Moreover, as independent small-
scale dairy producers, the Cochrans are
exempted from the regional marketing
orders under the AMAA and have chosen
not to enter into manufacturing and
marketing cooperatives. They, and they
alone, determine how much milk to
produce, how to sell and market it and to
whom it will be sold. Nevertheless under
the Dairy Act they are compelled to pay
assessments to subsidize generic dairy
advertising, a form of speech with which
they are in total disagreement. Cf.
Glickman, 521 U.S. at 471 (noting that
“none of the generic advertising conveys
any message with which respondents
disagree”).
Furthermore, as the Court in
United Foods determined that speech is
the principal purpose of the Mushroom
Act, so it is of the Dairy Act.11 Indeed,
11 Congress’ declared policy of the
Mushroom Act was
that it is in the public interest to
authorize the establishment,
through the exercise of the powers
provided in this chapter, of an
orderly procedure for developing,
financing through adequate
assessments on mushrooms
produced domestically or
imported into the United States,
and carrying out, an effective,
continuous, and coordinated
program of promotion, research,
and consumer and industry
information designed to – (1)
strengthen the mushroom

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15
“almost all of the funds collected under
the mandatory assessments are for one
purpose: generic advertising.” United
Foods, 533 U.S. at 412. In United
Foods, the Court made clear that
compelled subsidies may not be upheld
where they are only germane to a
program whose “principal object is
speech itself.” Id. at 415.
We conclude, therefore, that being
compelled to fund advertising pursuant
to the Dairy Act raises a First
Amendment free speech and
associational rights issue. But our
determination that the Act’s compelled
assessments for generic advertising
implicate the Cochrans’ First
Amendment rights does not end our
inquiry. As this court held in Frame,
“[t]he rights of free speech and
association are not absolute. Thus, we
must next identify the proper standard for
evaluating whether the statute . . .
nevertheless passes constitutional
muster.” 885 F.2d at 1133.12
industry’s position in the
marketplace; (2) maintain and
expand existing markets and uses
for mushrooms; and (3) develop
new markets and uses for
mushrooms.
7 U.S.C. § 6101(b). Congress’ declared
purpose for the Dairy Act is
that it is in the public interest to
authorize the establishment . . . of
an orderly procedure for financing
(through assessments on all milk
produced in the United States for
commercial use and on imported
dairy products) and carrying out a
coordinated program of promotion
designed to strengthen the dairy
industry’s position in the
marketplace and to maintain and
expand domestic and foreign
markets and uses for fluid milk
and dairy products.
7 U.S.C. § 4501(b).
12 Upon concluding that milk
producers are regulated to a similar
degree as the California tree fruit
growers in Glickman, the district court
applied a three-part test set forth by the
Supreme Court in Glickman: (1) whether
the Act imposes a restraint on the
freedom to communicate; (b) whether the
Act compels any person to engage in any
actual or symbolic speech; (c) whether
the Act compels dairy producers to
endorse or finance any political or
ideological views. (District Court Op. at
16-18.) This test, however, is
inappropriate because, like the Supreme
Court in United Foods, we have
concluded that the Dairy Act is not a
species of economic regulation, as it is
not ancillary to a more comprehensive
program restricting the marketing
autonomy of dairy farmers. In United
Foods the Court did not apply this three-
part test. Nor do we.

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16
VI.
This case is properly characterized
as a compelled commercial speech case.
See United Foods, 533 U.S. at 410;
Frame, 885 F.2d at 1146 (Sloviter, J.,
dissenting). The Supreme Court,
however, has left unresolved the standard
for determining the validity of laws
compelling commercial speech, and the
circuit courts are divided on the issue.
There are at least four variations in the
judiciary’s cumulative experience. One
is the more lenient standard applied to
commercial speech cases. See Central
Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n, 447 U.S. 557, 564 (1980).
Another is the “germaneness” test of
compelled speech cases. See, e.g.,
Abood, 431 U.S. at 235-236. Still
another is an adaptation of the
commercial speech standard. See
Livestock Marketing, 335 F.3d at 722-
723. And, in Frame, a pre-Glickman and
pre-United Foods case, this court applied
the stringent level of scrutiny for
associational rights cases. 885 F.2d at
1134. We now summarize the various
standards.
A.
In Central Hudson, the Supreme
Court held that to evaluate the
constitutionality of regulatory restrictions
on commercial speech the Constitution
requires only intermediate scrutiny –
namely, that (1) the state must “assert a
substantial government interest”; (2) “the
regulatory technique must be in
proportion to that interest”; and (3) the
incursion on commercial speech “must
be designed carefully to achieve the
State’s goal.” 447 U.S. at 564.
Commercial speech is “expression
related solely to the economic interests of
the speaker and its audience.” Id. at 561.
But the Court has left open the
question of whether Central Hudson’s
more relaxed First Amendment test
applies to cases involving compelled
commercial speech. In United Foods the
Court stepped back from addressing the
issue in ipsis verbis, explaining: “the
Government itself does not rely upon
Central Hudson to challenge the Court of
Appeals’ decision, . . . and we therefore
do not consider whether the
Government’s interest could be
considered substantial for purposes of the
Central Hudson test.” 533 U.S. at 410.
Nevertheless, in the earlier case of
Glickman, the Court questioned the
application of the commercial speech test
to compelled speech cases:
The Court of Appeals fails to
explain why the Central Hudson
test, which involved a restriction
on commercial speech, should
govern a case involving the
compelled funding of speech.
Given the fact that the Court of
Appeals relied on Abood for the
proposition that the program
implicates the First Amendment, it
is difficult to understand why the
Court of Appeals did not apply
Abood’s “germaneness” test.
521 U.S. at 474 n. 18.
Indeed, in United Foods,

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17
notwithstanding its specific disclaimer
regarding Central Hudson, the Court
seemingly applied the “germaneness”
test:
The only program the
Government contends the
compelled contributions serve is
the very advertising scheme in
question. Were it sufficient to say
speech is germane to itself, the
limits observed in Abood and
Keller would be empty of
meaning and significance. The
cooperative marketing structure
relied upon by a majority of the
Court in Glickman to sustain an
ancillary assessment finds no
corollary here; the expression
respondent is required to support
is not germane to a purpose
related to an association
independent from the speech
itself; and the rationale of Abood
extends to the party who objects
to the compelled support for this
speech. For these and other
reasons we have set forth, the
assessments are not permitted
under the First Amendment.
533 U.S. at 415-416 (emphasis added).
As we previously explained, the
purpose of the Dairy Act is in all material
respects the same as that of the
Mushroom Act at issue in United Foods,
and the Dairy Act is not ancillary to a
broader cooperative marketing regime
like the fruit tree marketing orders at
issue in Glickman. The compelled
assessments for generic dairy advertising
under the Dairy Act are germane to
nothing but the speech itself. “[A]lmost
all of the funds collected under the
mandatory assessments are for one
purpose: generic advertising.” Id. at 412.
It would thus seem that the Dairy Act
would not survive Abood’s germaneness
test.
Other courts have applied the
germaneness test to cases involving
compelled assessments pursuant to
promotional programs and have rejected
the application of Central Hudson. See,
e.g., Michigan Pork, 348 F.3d at 163
(noting that “[e]ven assuming that the
advertising funded by the [Pork] 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”); In re
Washington State Apple Adver.
Comm’n, 257 F. Supp. 2d 1274, 1287
(E.D. Wash. 2003) (concluding that
“[b]ecause the Commission’s
assessments do not restrict speech, it is
inappropriate to apply the Central
Hudson test for restrictions on
commercial speech”).
In Livestock Marketing, however,
the Eighth Circuit concluded that an
adaptation of the Central Hudson test
applied, explaining that “Central Hudson
and the case at bar both involve
government interference with private
speech in a commercial context.” 335
F.3d at 722. All the same, the court
concluded that the Beef Act did not
survive the intermediate scrutiny of

-- 17 of 21 --

18
Central Hudson. Id. at 725-726. Relying
on the reasoning set forth in United
Foods, the court determined that the beef
checkoff program is in all material
respects identical to the mushroom
checkoff program, and concluded that
“the government’s interest in protecting
the welfare of the beef industry by
compelling all beef producers and
importers to pay for generic beef
advertising is not sufficiently substantial
to justify the infringement on appellees’
First Amendment free speech right.” Id.
Finally, in Frame, which was
decided before the teachings of both
Glickman and United Foods, this court
applied the stringent associational rights
standard but nevertheless upheld the
constitutionality of the Beef Act, 7
U.S.C. § 2901 et seq. Back in 1989, this
court concluded that the government’s
interest in “maintaining and expanding
beef markets proves . . . compelling[,]”
and “[m]aintenance of the beef industry
ensures preservation of the American
cattlemen’s traditional way of life.”
Frame, 885 F.2d at 1134-1135 (citations
omitted).
Judge Sloviter, however,
dissented on this issue in Frame:
I doubt that the type of compelled
speech at issue here can be
justified on any basis.
Nonetheless, I do not reach the
majority’s stringent associational
rights standard because I believe
that no justification can be found,
even under the less exacting
criteria adopted by the Supreme
Court in evaluating the
permissibility of regulation of
commercial speech [in Central
Hudson] . . . . While the
government has a general interest
in the health of the beef industry,
it does not follow that the
government has a substantial
interest in compelling the beef
industry to make and support such
a promotion campaign. Instead, . .
. the messages represent the
economic interests of one segment
of the population . . . .
Id. at 1146-1147 (Sloviter, J., dissenting)
(citations and internal quotations
omitted).
As in Frame, the Government here
argues that it has a sufficient interest in
increasing the demand for an agricultural
product. Moreover, the Government
contends that it has an interest in
decreasing its obligation to purchase
dairy products under the price support
program, 7 U.S.C § 1446. We previously
have emphasized, however, that the
Court’s subsequent holding in United
Foods that clarified and limited the
teachings of Glickman, cut away the
underpinning of this court’s analysis in
Frame. United Foods makes clear that
the government may not compel
individuals to support an advertising
program for the sole purpose of
increasing demand for that product. 533
U.S. at 415. In United Foods, the Court
concluded that the Mushroom Act’s
compelled subsidies would be
unconstitutional even under the lesser

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19
scrutiny accorded to commercial speech.
Id. at 410.
Although the Government’s
contention that it has a substantial
interest in decreasing its obligation under
the dairy price support program is
somewhat unique from the government
interest asserted in United Foods, this
interest is undermined by the fact that as
a stand-alone statute, the Dairy Act does
not operate in conjunction with the price
support program. Indeed, producers of
liquid milk such as the Cochrans are not
covered by the support program.
Moreover, reductions in the
government’s obligations under the price
support program are insignificant to the
Dairy Promotion Program’s existence, as
whether the compelled assessments
continue is controlled by the dairy
producers via the referendum process. 7
U.S.C. § 4506(a).
We conclude, therefore, that the
government’s interest in promoting the
dairy industry is not sufficiently
substantial to justify the infringement on
the Cochran’s First Amendment free
speech and association rights. As Judge
Sloviter suggested in her dissent in
Frame, promotional programs such as the
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
Supreme Court reached the same
conclusion by ruling in United Foods that
the compelled assessments pursuant to
the Mushroom Act are not permitted by
the First Amendment.
B.
In light of the reluctance of the
Supreme Court in United Foods to enter
the controversy over the applicable
scrutiny for compelled commercial
speech cases, however, we will follow
suit. “[W]e find no basis under either
Glickman or our other precedents to
sustain the compelled assessments sought
in this case.” 533 U.S. at 410.13
The compelled assessments for
generic dairy advertising under the Dairy
Act relate to speech and only to speech.
Indeed, “almost all of the funds collected
under the mandatory assessments are for
one purpose: generic advertising.” Id. at
412.
Measured by any degree of
scrutiny set forth in the foregoing
discussion, we conclude that this case
runs on all fours with the teachings and
holding of United Foods, and
accordingly hold that the Dairy
Promotion Stabilization Act of 1983 does
not survive the First Amendment
challenge lodged by Appellants Joseph
and Brenda Cochran. The district court
erred in sustaining the constitutionality
of the Dairy Act on the basis of
Glickman.
* * * * *
13 We reach this conclusion
whether accepting the standard explicitly
expressed in Frame or deciding that in
view of the Court’s discussion in United
Foods, that standard is not longer
controlling.

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20
In sum, we conclude that the
generic advertising pursuant to the Dairy
Promotion Stabilization Act of 1983 does
not constitute government speech and is
therefore subject to First Amendment
scrutiny. We hold that the Dairy Act
violates the Cochrans’ First Amendment
free speech and associational rights.
Although the dairy industry may be
subject to a labyrinth of federal
regulation, the Dairy Act is a stand-alone
law and the compelled assessments for
generic dairy advertising are not germane
to a larger regulatory purpose other than
the speech itself.
The judgment of the district court
sustaining the constitutionality of the
Dairy Promotion Stabilization Act of
1983 will be reversed and the proceedings
remanded with a direction to enter a
decree in favor of Appellants in
accordance with the foregoing.
RENDELL, Circuit Judge, concurring.
I join in our opinion and judgment
but write separately to register my view
that, having found that the assessments do
not pass muster under the Supreme Court’s
analysis in United Foods, and, having noted
at the end of Pat IV that the compelled
subsidies were assessed to support a
program whose principal object was speech
itself, we need not engage in the exercise of
determining the “standard” regarding the
extent of the government’s interest for
purposes of a commercial speech analysis
under Central Hudson, as the opinion does
at Part VI-A. Twice – in both Glickman
and United Foods – the Supreme Court has
questioned the need for engaging in a
Central Hudson analysis.14 And, I think it
14The Court has not treated these
cases as involving a discrete commercial
speech issue, instead indicating that “[t]he
question is 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.” United Foods, 533 U.S. at 410;
see also id. (stating that, even if commercial
speech is less protected than other speech,
there is “no basis under either Glickman or
our other precedents to sustain the
compelled assessments,” but refusing to
consider “whether the Government’s interest
could be considered substantial for purposes
of the Central Hudson test”); Glickman, 521
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
constitutionality of market order
assessments for promotional advertising,”
and stating that the Ninth Circuit “fails to
explain why the Central Hudson test, which
involved a restriction on commercial speech,
should govern a case involving the
compelled funding of speech”). In fact, in
United Foods the Court appears to explicitly
endorse the applicability of the
Abood/Keller germaneness test: “It is true
that the party who protests the assessment
here is required simply to support speech by
others, not to utter the speech itself. We
conclude, however, that the mandated
support is contrary to the First Amendment
principles set forth in cases involving
expression by groups which include persons
who object to the speech, but who,

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unnecessary to apply Central Hudson in
light of the Court’s analysis in United
Foods.15
In United Foods the Court
distinguished the situation it faced from the
one it considered in Glickman by
examining the following question: Is the
challenged assessment part of a “broader
regulatory system” that does not have
speech as its primary object. 533 U.S. at
415. There appear to be two parts to this
basic inquiry. First, are the plaintiffs part
of a group that is “bound together and
required . . . to market their products
according to cooperative rules?” Id. at 412.
Second, is the assessment regulation
related to and in furtherance of other non-
speech purposes, carrying out other aspects
to further other economic, societal, or
governmental goals? Id. at 415. Even if
the answer to the first question is “no,” the
assessment might nonetheless be permitted
if it is not only related to speech. This
second inquiry could signal consideration
of “germaneness” if, in fact, other goals
were implicated. But here, we answered
“no” to both questions: we decided that the
Cochrans did not surrender their freedom
to make independent competitive choices
to any collective enterprise, and we
concluded that speech was the only
purpose of the Dairy Act. Thus, it was
purely “compelled speech,” forbidden by
United Foods under any level of scrutiny.
533 U.S. at 410. In fact, after discussing
the various standards potentially applicable
here, Judge Aldisert clearly states in the
ensuing Part VI-B that under any level of
scrutiny, the assessments for speech only
do not pass constitutional muster given
United Foods. The analysis in Part VI-A
regarding the proper level of scrutiny is
therefore unnecessary, and, I believe,
dicta.
nevertheless, must remain members of the
group by law or necessity.” 533 U.S. at 413
(citing Abood and Keller).
15The Sixth Circuit, in Michigan Pork
Producers Ass’n, Inc. v. Veneman, 348 F.3d
157 (6th Cir. 2003), also rejected the
application of the Central Hudson test to an
assessment created by a similar promotional
program. I find that court’s comments on this
matter to be instructive: “[W]e find
inapplicable to this case the relaxed scrutiny
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).

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