Six Reasons the Hershberger Raw Milk Case Is Central to Struggle for Food Rights, and Even WI Politics



J.B. Van Hollen, Wisconsin attorney general I’ve been devoting a considerable amount of time and energy to reporting on the sometimes tedious ins and outs of the upcoming trial of Vernon Hershberger.

Why? What makes this case so important, in my view?

Here are six reasons I see it as being key:

1. It could go a long way toward determining whether Americans will retain the right to privately obtain foods the government may object to. Note, I say “retain.” Americans have always had the right to obtain food privately–whether directly from farm stores or at church suppers or via lemonade stands or from neighbors selling extra milk or cans of food. It’s just that the “right” wasn’t called a right, because it was a custom or a tradition, a part of the fabric of life in communities large and small. Elected and appointed officials didn’t even think to question it because they were getting food that way as well. But in recent years, as government at all levels has begun challenging the custom ever more often and aggressively, we the people have been forced to position this long-standing custom as a “right.”

So while Hershberger says he is making food available to members of a discrete private group of individuals, who have leased his animals and have ownership of their production, the state says there is no such distinction between the mass of shopping consumers, who are part of the public, and members of a private food group. In the dispute I wrote about over instructions to a potential Hershberger jury, prosecutors have taken dead aim at the defense proposal to separate Hershberger’s food club members from “the public.” The state noted that “…defendant requests that the jury be instructed that ‘owners or operators’ of a farm are not members of ‘the public.’…There is simply no such exception in the licensure requirements of (the Wisconsin statute) or in the definition of retail food establishment…” In a footnote, the state adds, ” ‘General Public’ means persons who are served a meal, but are not part of the household.”

2. The case can provide clues to underlying political agendas and ambitions. Political trials, in particular, are great for providing insights into the political priorities of those in charge. In Wisconsin, you have to ask why the state’s popular attorney general, J.B. Van Hollen, has fixated on the Hershberger case. Especially when his priority has been violent crime.

According to his official Wisconsin web site, “Since taking office, Attorney General Van Hollen has prioritized forensic DNA analysis at the State Crime Lab by adding 37 new positions and cutting the average turn-around time for sexual assault cases in half. Overall, the average DNA case turnaround time is a third of what it was.”

The writeup adds, almost comically, “During a time when partisan politics has increasingly polarized the people of Wisconsin, Van Hollen has kept focused on enforcing and following the laws as written without regard to the underlying political and public policy debates.”

Raw milk and food rights have become partisan and polarizing. So why would Van Hollen weigh in so gleefully and aggressively to the Hershberger case, which doesn’t offer anything like the potential public kudos that going after a rapist does?

So you wonder…the only thing the Hershberger trial could offer politically is that it could make the dairy industry happy. And if you’re thinking of running for governor, or U.S. senator, and want to raise the kind of financial war chest that’s needed, well…you have to earn your keep.

3. It is an important educational tool for Americans inside and outside of Wisconsin. Most Americans have little knowledge about the emerging struggle for food rights. The more they learn about the legal case against Vernon Hershberger, the more people will ask themselves a simple question: Why is the government of “America’s Dairy Land” expending huge resources to make this case against a humble farmer such a high priority?

4. It is an important educational tool for judges. Judges have been mostly buying into the regulator-prosecutor argument that there is no right to privately obtain whatever foods we want. The judge that bought into it most completely was Wisconsin Judge Patrick Fiedler, when he upheld the state’s case against two other farmers, Mark Zinniker and Wayne Craig, with his now infamous, “no…fundamental right to consume the milk from their own cow.” But other judges have as well, in the Morningland Dairy and Dan Allgyer cases, just to name two.  Now another judge, Guy Reynolds, is hearing the arguments, and being forced to think about hard issues here–the latest being whether Hershberger’s religious rights have been violated.Maybe some of this stuff will begin to take in the judge’s mind.

5. It could be a model for jury nullification mobilizing efforts. The judge in the Hershberger case has helped the prosecution’s effort to prevent the jury that eventually judges the farmer from learning about jury nullification. But a budding organizing effort is seeking to educate Wisconsin citizens about jury nullification. Its success could get Hershberger off the hook, and help build momentum for similar outcomes in other cases.

6. It could be a key component of a growing volume of legal precedent in favor of food rights, building on the Alvin Schlangen acquittal. As we saw in that case, a jury last September laughed at the government arguments nearly as hard as Fiedler laughed at the farmers’ arguments, as the jury quickly acquitted the farmer of similar charges as being faced by Hershberger.

The Wisconsin prosecutors are understandably terrified to be going before a jury of ordinary people, who understandably will wonder why the hell the state is expending so much effort against a single farmer committing the crime of making healthy food available to a small community of eager eaters. Now that the Hershberger trial has been delayed yet again, it is essential that we not fall into the trap of tuning out on the many legal technicalities, and potentially losing sight of the forest for all the crazy and difficult-to-comprehend stuff happening in the trees.

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64 Comments on "Six Reasons the Hershberger Raw Milk Case Is Central to Struggle for Food Rights, and Even WI Politics"

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December 27, 2012 12:54 pm

I expect there to be laws, few and far between, only on the most important points of moral behaviour (individual and community), strictly and honestly built up from that base as necessary but only as necessary, not casting into the stone of law matters of the market or passing custom, matters, the changing of which must never be interfered with at the high and mighty level of the law else the law become a tool of mere personal oppression of this day’s business climate (so to speak) thus retarding change that may come ‘from below.’ The changes afoot… Read more »

Sylvia Gibson
Sylvia Gibson
December 27, 2012 1:48 pm

Having recalled briefly, something about church ladies taking on the state a year or so ago, I asked google if church suppers are legal. I received a lot of vague responses and that each state varies greatly.
In some states, I could rent a church kitchen, and bake stuff and then sell it to anyone. No inspections needed, also cuts down on business costs for me. I think I read, in the past, some state outlawed kids selling lemonade. Sad

You are so very right, “Most Americans have little knowledge about the emerging struggle for food rights.”… Read more »

December 27, 2012 8:40 pm

Absolutely. I just mean that our support should be based first and last on the fact that we the people have the right to grow, process, distribute, get, and eat our food regardless of the alien law, while an alien regime has no legitimate place at all.

December 27, 2012 11:37 pm

since you asked : ‘what properly IS the business of Caesar?’, : anything with the image of Caesar wrapped-around it. Mister Hershberger entered-in to commerce, when he took Federal Reserve notes for milk and other products. Congress has the power to regulate commerce = End of story. He cannot have one foot in his religious compound, and one foot in the Babylonian system. ….. Well, he can, but not for long = this ship is leaving the dock, so he’d better figure out which way to jump. Better men than he is, have wound up… Read more »

Dave Milano
December 28, 2012 12:15 am

It is a practical reality that involving oneself in the money economy has become a virtual invitation to government “partners.” Also true is that those who find themselves on the government’s leash, wittingly or not, are relegated to legal hair-splitting to carve out some semblance of freedom.

It’s extremely unfortunate that our social structures rely so heavily on money—money is so convenient in a complex society—since bypassing money transactions obviates so many problems. (Perhaps if we understood just how many problems money causes, it wouldn’t appear to be such a convenient tool.)

A question to those who have thought about such… Read more »

December 28, 2012 4:21 am

You are totally right on, Russ.

December 28, 2012 12:20 pm

“If goods and services were remunerated with, say, non-coin silver or gold, would there be a legal basis for government control of the transactions?”

Anything which functions as a stable medium of exchange, including barter, is legally taxable and controllable in every other way. Just like with anything else, it’s a measure of people’s willingness to reject the control of an alien “law” and engage in civil disobedience.

For an alternative to any kind of medium of exchange, time banking not only works, but is a transitional form toward natural economies of community credit.

As far as the legal technicalities, when… Read more »

Shana Milkie
December 28, 2012 2:16 pm

Thank you for this insightful analysis, David.

D. Smith
December 28, 2012 3:59 pm

The Amish use cell phones. Heck, they even use computers.

We’ve let the legal racketeers take over america. It’s too late to change that now and even though the Amish may try not to become a part of the system, it happens subtly, just like everything else our gubment wants to have happen. They let a few win (just for looks, mind you) but the majority lose. That majority includes us.

What do you see as the outcome for the real milk situation?

Ron Klein
December 28, 2012 4:51 pm

Control of “non-monetary transactions. . . .
The simple answer to government control—is yes, and they even include barter. You can check out the IRS requirements at their “Bartering Tax Center”—yes it does exist . Hard to predict how this sort of control will play out as times are getting tougher and the Long Emergency begins to take shape.

December 28, 2012 6:54 pm

George Gordon has been thinking about that issue, and commenting on it, for about 2 decades. His answer is : “quit dealing in income and start dealing in property” … meaning, quit using the specie paper of the Federal Reserve System, and learn how to exchange ‘this for that’. Avoiding the use of FRNotes, cuts the govt. out of the transaction. Of course that’s almost completely impractical in today’s world, yet there are those who make it work.

A very important point is that FRN bills are not properly “money”. They’re credit instruments, a form of… Read more »

D. Smith
December 28, 2012 9:08 pm

@ Gordon: Yep, and here’s the larger disaster. A real barnbuster. You’ll quickly notice there was not a word mentioned about raw milk markets or producers. If it wasn’t such a sad state of affairs, it might actually be funny. I say let them fall over the dairy price support cliff, they deserve the fall and the ultimate landing on their kiester.

Sylvia Gibson
Sylvia Gibson
December 29, 2012 4:08 pm

I had heard on the news that milk may go up to $6-$8/gal. I agree, let them fail. Milk sales down from factory farms anyway. Maybe the farmers can then start over without servitude to the govt?

“In other words, the true cause of the “milk cliff” is Congress’s endless attempts to manipulate markets in favor of the various farm lobbies. ”

A response from a poster on the above link:”Until we outlaw institutional bribery of Congress, the money flow will always buy what the lobbyists want/pay for.”

This is true.


Sylvia Gibson
Sylvia Gibson
December 29, 2012 4:14 pm

So, trading a basket of tomatoes for a basket of peaches from my neighbor means we are supposed to claim the value to the irs? LMAO

December 30, 2012 2:35 am

The great wall of China was built to control and tax trade. I hope we’re not battling that kind of resolve in the healthy food fight.

December 30, 2012 2:43 am

“FRN bills are not properly “money”. They’re credit instruments” Wow that’s right, that means it isn’t fiat money.

Sylvia Gibson
Sylvia Gibson
December 30, 2012 4:22 am

With incomes already low, and lack of job security, most won’t buy mild at exploded prices. If I had small children, I’d resort to finding the best multivitamins for my kids, and push the greens/vegetables on them.

Milk is added to many processed phoods, in many forms. If the cost of milk goes up, so will other processed phoods. A snowball affect.

December 31, 2012 12:11 pm

Bill Marler saddens me, and makes me want to vomit (on all the industrial food we would be left with if people like him ran the show and had their way and could tell us sheeple what we could and could not do, because you know, they all know what is best for us… look at what a great job they are doing running the country… into the ground…)

“It’s a form of civil disobedience. They think that freedom trumps public health,” Marler said.

Yes, Bill, it does – ever hear of the Constitution, the Declaration of Independence, read the founding… Read more »

Sylvia Gibson
Sylvia Gibson
December 31, 2012 1:51 pm

From JohnM’s link: “Those who oppose raw milk sales say the public shouldn’t be exposed to a product that may contain pathogens such as E. coli, campylobacter, salmonella and listeria.”

If this is the case, then so many other ‘foods’ would need to be banned-lunch meats, all dairy products, produce, all meats/poultry/sea food, etc. After all, the public is “exposed”, right?

“She wants testimony from an expert witness from Michigan who would argue that fresh, unprocessed milk has health benefits and is safe when handled properly.”

She needs an “expert” to inform her? I question her thinking capacity. Just think;… Read more »

December 31, 2012 2:02 pm

“”It’s a form of civil disobedience. They think that freedom trumps public health,” Marler said.”

The truthful and politically effective response to this kind of lie is always the same: Human freedom is always on the side of public health.

(Meanwhile corporate/government license, which is often fraudulently called “freedom”, is always an assault on public health. The Marlers, NGOs, etc., whether out of conscious evil or useful idiocy, are all effectively pro-Monsanto.)

December 31, 2012 2:09 pm

To keep going in for the legalistic hair-splitting of “public” vs. “private” is to want to lose this war. The only thing that can exist is the community, food must freely be produced and distributed among the community, and the community must police its own food. (Food markets are naturally local/regional.) The corporate state assaults the community. (Commodification and globalization are unnatural and forced upon communities from the top down, as a planned economy of industrial “food”.) “Public” and “private” are scam categories the state uses to cause confusion and fraternal strife among the people.

The regime couldn’t care less… Read more »

December 31, 2012 2:14 pm

Exactly Russ. Marler may say he is not for big-ag, but his and Mary and others’ agendas are solely to the benefit and empowerment of big gov and big ag, and to the harm of local communities/sovereignty.

Sometime, I would enjoy dialoguing with you about your views on the public/private. As far as I can tell, that distinction goes back very, very far; indeed, to the beginning of writing/record keeping or close to it. I think it is an important and right and helpful distinction – but I would enjoy hearing you out more, both how… Read more »

D. Smith
December 31, 2012 3:00 pm

@ Sylvia: I think we lost this food war thing when American consumers started thinking it was “natural” for food to be delivered to a supermarket in boxes on a truck. And we lost that war waaaaay back in the 1940’s or maybe even before. For milk, the death knell came with pasteurization and anyone who knows anything about food and nutrition knows that, right?

With our gubment pushing money at the farmers (as incentives and subsidies) we won’t see a major push for real foods anytime soon. And, as someone stated elsewhere, with… Read more »

December 31, 2012 4:32 pm

That kind of dialogue sounds good to me, John. Thinking offhand of stuff like Hammurabi’s code or the Hebrew scriptures, I’m not coming up with examples of power concentrations being distinguished as “public” and “private”. The earliest example I can think of where there’s any formal demarcation at all is between the medieval church and the “secular arm”. But this also wasn’t phrased in terms of “public and private”. The earliest I can think of offhand is the certified privateering and licensed monopolies of the 16th centuries. These examples are highly appropriate, since corporations have never gone much beyond… Read more »

D. Smith
December 31, 2012 4:45 pm

But our talking heads in WADC do believe this is better for us than the real thing. I don’t understand their circular form of thinking.

Personally, I’m not really as interested in “harming the environment” as I am with harming the wild salmon colonies, which the EPA claims will not happen. Well, maybe it won’t harm the environment or even the wild salmon numbers, which is highly doubtful per their record on this kind of thing, but it’s been proven that it WILL harm people. But we aren’t supposed to be concerned about that. … Read more »

December 31, 2012 5:02 pm

We have a lot of common ground. I think part of it is when I use public/private, I mean a slightly different set of circles than others, and I think many liberty minded people also use them similarly. Aka, private means to us more locally oriented community/choice/governance, and privacy from intrusions into such things.

Yes, the corporate bastardization of all things is terrible. Corporate personhood, an oxymoron and great evil…

So the question becomes, how would you frame or handle these issues? How would you practically suggest moving things forward, for instance, in Vernon’s situation?… Read more »

Sylvia Gibson
Sylvia Gibson
December 31, 2012 5:56 pm

The war is not yet lost. I think there are more “preppers” than is known. The mistrust of the govt has been growing for years. I think it was the 1930s that grocery stores, as we now know them came into being. Growing your own food is key. It takes power away from the controlling sector. Control the food and water and you control it all. I read that in some areas it is illegal to collect rain run-off from your own roof. What is the purpose of that? … Read more »

December 31, 2012 8:57 pm

when I started the Home on the Range cowshare, I did not go ask the Registrar of Companies for permission. Nor did I ask any one of the 10,000 lawyers in British Columbia, if it would be alright to convene an association of citizens, to go a’dairying, for to feed us’ns. We simply got at it.

A week after Michael Schmidt had prevailed in the first round, in his contest in Ontario, the Quasi-govt. “Fraser Health Authority” hauled us in to the Supreme Court of British Columbia, for having the temerity to embarrass the Stalin-ist… Read more »

December 31, 2012 9:30 pm

In re. to this “war over food,” 17 to 37 millions of souls inhabit each of the largest city/urban sites on the earth. There’s another 840 sites of greater than 500,000 souls. It is hard to think clearly if you eeat poorly. Marler’s route guarantees sickness and ill health in my opinion. Can the “industrialized” producers & processors of the food world meet the need? I do not think they can. Can governments go nuts? Well, yes they can. Only a few decades ago, forced-at-gun-point famine was the cause of death… Read more »

Sylvia Gibson
Sylvia Gibson
December 31, 2012 10:10 pm

Mr. Odegaard

I’ve heard numerous stories from both patients and physicians who stopped most or all medications of bed-ridden/wheelchair bound patients and they miraculously were able to ambulate totally on their own or with minimal assistance, their thought processes improved, etc. I’ll seek out the book.

December 31, 2012 10:20 pm

I was referring in the first place to the legalistic hair-splitting over “private” cowshares vs. selling “to the public”. That’s doomed to lose, since the system will always win battles over the technical interpretation of its own intentionally convoluted and obscure “laws”. (They’re obscure for a reason; they allow for maximum bureaucratic discretion, i.e. lawlessness, while providing the fig leaf of the “rule of law”.) More importantly, it’s defensive and apologetic. It implicitly concedes that there’s something wrong with real milk, and that an alien regime has any rightful say over our food at all. It merely begs for… Read more »

D. Smith
January 1, 2013 4:21 pm

@ Sylvia: Yes, there were grocery stores in the 1930’s but most of them were sorta like a green-grocer type thing, not selling a whole lot of boxed, pre-made foods like today. I don’t think my Mom ever shopped at a grocery store until after WWII according to stories I hear, and she didn’t shop much even then. My brothers tell a story about Mom’s first boxed cake experience (before I was born). Everyone tasted it and it went into the trash because no one liked it. Nowadays they add more “food enhancers”… Read more »

D. Smith
January 1, 2013 4:45 pm

A friend of mine is the caretaker for her Mom. I’m not sure what was wrong with her but the daughter (Lottie) took her to the doctor for something and he, of course, gave her some miracle pill. Lottie didn’t even fill the prescription, but she did make some changes in her Mom’s diet – not sure what all the changes were but I know she made her start using real butter, using sea salt, and eating more eggs – that sort of thing. When she took her Mom back to the doctor about a month… Read more »

Sylvia Gibson
Sylvia Gibson
January 1, 2013 9:13 pm

She was wise for not saying anything to the doc about not filling the meds, I would be concerned with being reported to the various social agencies too.

As an FYI some RX is done by computer and the meds are flagged if not filled/picked up- the flag goes to the doc. Also some “concerned” pharmacists may get a phoned in RX and after so many days, if it isn’t picked up, the pharmacist will notify the doc.

I had a few run-ins with Kaiser Sacramento regarding my dad. A few years ago, after taking Azithromycin, he suddenly… Read more »

January 2, 2013 1:28 am

The Doc is left ignorant of the facts, no?

Mr. J. Ingvar Odegaard

D. Smith
January 2, 2013 2:38 am

It is my opinion that if doctors want to call all the shots with these elderly patients, they can just take them into THEIR homes then and care for them. It’s like the pot calling the kettle black. They are willing to point fingers because someone doesn’t follow some decision he makes within a 3 minute span – but who’s to say his decision was right? It’s craziness. Now they want to invent pills with chips in them which can track (as Sylvia mentioned) whether patients fill their script and whether or not they actually… Read more »

Chef Jem
January 2, 2013 11:24 am

“It is a government secret that all courts administering written law in conformity with the Constitution of the United States are legislative in power and not judicial. Proprietary power is the authority exercised by the judges sitting in these courts. (See: the “O.J. Simpson …” article here:
Does the court in Baraboo, Wisconsin administer “written law in conformity with the Constitution of the United States”? If it does then the “proprietary power” should be clearly identified at the very next opportunity or at least by the very start of the court proceedings. Typically the qualification of jurors (in at… Read more »

January 2, 2013 12:52 pm

Well answered. Thanks.

Sylvia Gibson
Sylvia Gibson
January 2, 2013 1:32 pm

Unfortunately, many in the health care environment only know what they are taught and regurgitate it verbatim. Thinking for themselves is taboo. Insurance companies/corporations dictate how they are taught and how they practice. Very few think and practice on their own. The way the system is set up, makes it difficult for those who do wish to practice honorably and with conscious.

There was a younger nurse who came back to our office, after doing home visits, she was pissed at a patient for putting honey on the wound. She said that was the stupidest… Read more »

D. Smith
January 2, 2013 3:39 pm

@ ingvar: And if you mean to say the doc is then left out of the loop of what’s being done with the patient (IOW, whether his instructions are being followed or whether some other course of action is being taken) . . . meh, half the time there is information missing from patient files or never noted, etc., as was the case with my Mom. And in her case I was able to go over her records and there were many things missing or mixed up, so I wasn’t too concerned about what they did or… Read more »

D. Smith
January 2, 2013 4:16 pm

@ Sylvia: I thought I read something a couple of years ago where nursing schools were going to be teaching some basic alternative things (like the honey for instance) but that was probably for show and had no substance in reality. The youngers generation today has no concept of how people used to manage before doctors. They should all have to read the books by Robert S. Mendelsohn, M.D. I mean, it should be required reading for all nursing students, if not the entire population – and his books were written in the… Read more »

Sylvia Gibson
Sylvia Gibson
January 2, 2013 5:34 pm

When I was in school, a few of my instructors were originally Diploma nurses (@3 yrs of OJT in the hospital setting, many lived at the hospitals) then they got their Masters/PHds in their later years. I feel lucky that there was a lot of common sense dished out to us students. I shudder at many of the newer graduates. I had a nursing student from UCD follow me on home visits, when the patient questioned me about the “need” for the flu shot, (he got one every year and every year came down with the flu), the student… Read more »

January 2, 2013 8:41 pm

Yes, that is my point, that the Doc, if he believes his instructions have been executed, is believing a fiction.

There’s quite a lot to be said about Perfect World Syndrome (PWS), even more so when PWS assumptions are used as a basis of legislation, codifying nonsense, enforced at the point of a gun. In the resulting world, practicing common sense can bring down on yourself fines, jail time or worse.

A good online read is the WWII experiences of private John Chistopher at Ft. Lewis, Washington. They can be found at:
I think this site has the story… Read more »

D. Smith
January 2, 2013 9:50 pm

You should read Tim Bolen’s web site and see what’s been happening with those quacks from quackwatch. They’re all in hot water up to their wazoo’s and beyond. The Maryland Board of Medicine has their number, as do many others. They have slandered more good people – but now they’ll pay for it.

Mendelsohn was a pediatrician for 30+ years and he tells it like it is. Mostly what it IS is common sense, something many of the parents today lack in a big way. He wrote the book How to Raise a… Read more »

D. Smith
January 2, 2013 10:51 pm

I wonder who inspired him to try cayenne to do himself in?!

January 30, 2013 3:36 pm

I have 24 years experience in state and federal courts as a pro se litigant, as well as being involved with the Fully Informed Jury Association, which promotes the use of the juror nullification doctrine, since near their inception in 1988. If Vernon Hershberger is depending on his attorney for a fair and fully informed jury trial, he needs to ask him point blank: “Will you instruct the jurors of their right and power to nullify the law by ignoring the judge’s trial instructions, which will probably include an instruction that says they “must” find him guilty… Read more »

January 30, 2013 6:43 pm

if you wanted to bring on a made-for-media SWAT-team standoff around the “Hershberger compound”, so the lame-stream media can portray anyone who sympathizes with raw milk / genuine free enterprise, as a raving religious fanatic … that’s how you’d go about it. What happened at Waco Tx ought to have made the point, once and for all = if you thought there was religious freedom in America : you thought wrong. The Baal-god brooks no competition. Lip-service? such as that we see from the state-licenced pulpit parrots? sure. As long as religiousity doesn’t turn in… Read more »

Chef Jem
April 15, 2014 6:49 am

Most fortunately – the jurisdiction of the Congress is proprietarily
dependent! In other words all of the jurisdiction that has been granted to
the Congress is clearly limited by the written Organic Law and restricted to
those territories and other lands that are owned by the United States of

The commerce powers that were granted to the Congress are limited and
most essentially to their proprietary-based jurisdiction. It is unfortunate
that the proprietary-based jurisdiction is not abundantly clear to the American
people. However, the truth of the matter is no longer the “big secret” that it
has been… Read more »