So how is it again that the acquittal of Vernon Hershberger favorably impacts the fight for food rights? It’s not a legal opinion from a judge, so technically, it doesn’t comprise legal precedent or otherwise extend beyond freeing Hershberger from penalties connected to the dairy and retail licensing charges. 

But it will have a potentially significant impact for two primary reasons: 

1. It will discourage prosecutors from taking on these kinds of cases as criminal cases. Prosecutors are usually elected officials, charged with fighting violent crime and corruption. They want to establish themselves in the public eye as guys (or gals) who are tough on serious crime, and who get menacing criminals locked up for long prison terms, so the prosecutors can get re-elected, or run for higher office.  

Going after the Vernon Hershbergers of the world doesn’t help win votes. It only helps the regulators with the Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP) look good to their handlers in the dairy industry. That may be good for them, but not necessarily for a local  prosecutor. 

Indeed, it came out at Hershberger’s trial that DATCP regulators tried to convince the local Sauk County prosecutor to file as many as thirty criminal counts against the farmer in connection with his violation of the holding order (presumably separate charges for each of many items of food he moved and distributed to his food club members). Those potential charges came to naught when the prosecutor demurred on getting involved in the case. She knew enough to understand that, even if she was successful in convicting Hershberger, throwing him in jail wouldn’t win votes–in fact, it might lose votes. Moreover, she knew what had happened in Minnesota last September to Alvin Schlangen–that he had been acquitted of similar licensing charges. A criminal case against Hershberger was far from a slam-dunk. 

The Wisconsin attorney general then made the fateful decision to appoint a “special prosecutor” to allow his Department of Justice to pursue the matter, which it did via the four criminal misdemeanor charges. Now that fellow, Attorney General J.B. Van Hollen, must be asking his smooth-talking lawyers, Eric DeFort and Phillip Ferris, along with the DATCP lawyers, Cheryl Daniels and David Meany, what the hell went wrong. How could their judgment have been so far off that they couldn’t even get a single juror to hold out on behalf of the state’s case, and possibly precipitate a hung jury, which would have allowed the state to walk away with at least a touch of respect, rather than the humiliation that befell the top Dairy State prosecutors. 

2. It will embolden other farmers to resist the State. By refusing to obey administrative orders from DATCP, or orders from judges in civil cases, the farmers will invite criminal cases. Barb Smith of Meadowsweet Farm in New York said it very well in a comment following my previous post: “Steve and I here in NY (Meadowsweet Farm) decided after we lost our [civil] case three years ago now that the best tactic for all of us is to try to force the State to go for criminal charges. This means total noncooperation with their threats and bargains and compromises. Noncooperation all the way out to the end of the rope! It means NOT getting milk permits, NOT allowing inspections, NOT trying in any way to work with the enemy. They need to be pushed to the point of having no other recourse but criminal charges.”

The Hershberger acquittal may even embolden a politician to challenge J.B. Van Hollen in the next election. An eager pol could question Van Hollen: Why did you spend hundreds of thousands, or even millions, pursuing this dubious case against a hard-working farmer, just because you didn’t like the fact he was selling raw milk to a private club? How many violent criminals were allowed to do their violent thing while you were obsessed with this law-abiding and God-fearing man? 

In their eagerness for control and retribution, these scheming lawyers may well have unleashed the law of unintended consequences.  It will be up to supporters of food rights and raw milk to stand behind farmers who will likely be harassed in new ways, until regulators finally get the message that these efforts are part of a losing proposition. 

**

For the prosecutors and regulators in Wisconsin, the Hershberger case had a related side effect: It attracted more media attention than they could have imagined–media attention for Vernon Hershberger and his supporters. The Wall Street Journal had a couple of articles, and the Wisconsin media were all over it. For some in-depth coverage, WSJ Live had an interview with Liz Reitzig about food rights and the benefits of raw milk.  

Elizabeth Rich provides excellent context about the case in an interview on InfoWars, starting at the 21-minute mark. 

I wrote a couple of articles for Modern Farmer, a preview and after-the-event account. 

**

Finally, regular readers of this blog will find very interesting Michael Pollan’s excursion into the “microbiome.” His first-person account of learning about his own gut flora is insightful and educational…and the fact that it is in the New York Times speaks volumes about how quickly trends in this arena are progressing.  In my new book on food rights, I devote significant space to the emergence of research about the microbiome, and the politics of why the public health community has been so slow to incorporate the knowledge into aiding food safety efforts.