WASHINGTON — Importers of cotton apparel that don’t like being required by federal law to pay some $20 million a year into a cotton advertising and research fund are hoping a case argued before the Supreme Court on Wednesday could lead to voluntary participation.
The case involves an Agriculture Department beef program similar to that for cotton. It’s being protested by a group of North and South Dakota cattle ranchers. At issue is whether the ranchers can claim First Amendment free speech protections and refuse to participate in the USDA program, or whether the government can exercise its own immunity from the First Amendment and compel participation.
The Dakotan ranchers’ argument is similar to that held by cotton apparel importers, whose payments into the Cotton Research & Promotion Program account for about a third of its $62 million budget.
The apparel importers, organized as the Coalition of Cotton Apparel Importers, filed a brief in the beef case siding with the Dakotan ranchers. It said: “The program cannot be justified as government speech. The speech is compelled and as such, unconstitutional.”
The money is collected by the USDA-appointed Cotton Board. The board contracts with Cotton Incorporated to promote consumption of cotton apparel and home furnishings, as well as research into cotton’s use in textiles and improvements in cotton agriculture.
About 200 cotton apparel importers, with pending challenges of the cotton program in the U.S. Court of International Trade in New York, contend they shouldn’t be forced, as private entities, to participate. The importers include Warnaco Inc., VF Corp., May Department Stores, Kohl’s Department Stores, Sears, Roebuck & Co., Federated Merchandising Group, Dillard’s Inc. and Target Corp.
Bill Crawford, president and chief executive officer of the Cotton Board, said cotton apparel importers benefit from Cotton Inc.’s work. He cited increased cotton product consumption and textile advances, such as Cotton Inc.’s work on wrinkle-resistant technology.
Deputy solicitor Edwin Kneedler, representing the USDA, told the justices, “To strike down this [beef] program would have disastrous consequences.” Kneedler argued that the beef program is administered by the industry but under the direction and review of federal officials, so the government’s First Amendment immunity applies.
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Harvard University law professor Laurence Tribe, representing the dissenting ranchers, said his clients are being forced into a scheme to which they disagree, such as paying for generic advertising that touts “eat beef” but doesn’t single out specific grades of meat or whether it’s U.S. meat.
“It remains unconstitutional because these individuals are forced to be part of a system,” Tribe argued.
Justice Stephen Breyer asked whether the First Amendment quandary in the beef case should be looked through the “lens” of the government already having authority to regulate interstate commerce. Justice Ruth Bader Ginsburg questioned the depth of the government-speech argument and said, “If you went to the Surgeon General, the message might be ‘eat meat modestly.’” Justice Anthony Kennedy wondered whether generic commodity advertising is truthful, since it never mentions government involvement.
Brenda Jacobs, counsel for the U.S. Association of Importers of Textiles & Apparel, said opponents of USDA commodity programs are hoping the High Court will define the legality of mandatory participation. The government’s First Amendment immunity argument “is the only argument they have left,” Jacobs contended.
This isn’t the first time the High Court has tackled the USDA’s commodity programs, which first took hold in the Depression as a means to ensure availability and quality of agricultural goods. So far, except in one case involving mushrooms, the court has upheld the legality of forced participation in the commodity programs.
In 1997, the court ruled in favor of the USDA’s peach, plum and nectarine promotion program, saying it was part of an overall industry economic plan and was within the government’s right to regulate commerce. However, in 2001 the court ruled against a USDA mushroom marketing program since its money was used solely for advertising, leading the court to decide the government had no authority to sidestep the First Amendment and compel advertising and industry contributions to pay for it.