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.