A California Supreme Court decision issued in November 2000 demonstrates conclusively that California’s Constitution provides broader protection for commercial speech than does the First Amendment. California’s high court concluded that a marketing order issued by the California secretary of food and agriculture implicates the right to freedom of speech under Article I of the California Constitution, even though it does not implicate any such right under the First Amendment to the U.S. Constitution. Gerawan Farming, Inc. v. Lyons, 101 Cal. Rptr. 2d 470 (Cal. 2000).

    The California Supreme Court took up Gerawan after the U.S. Supreme Court concluded that a federal law similar to the California law at issue did not violate the First Amendment. In that case, the High Court held that a marketing order requiring California fruit producers to pay for generic advertising did not violate the fruit producers’ First Amendment rights by compelling their speech. Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997). The marketing order had been issued by the U.S. secretary of agriculture pursuant to the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. Sec. 601 et seq. Central to the Court’s decision was its determination that the First Amendment does not protect commercial speech against compelled funding when the speech is part of a broader program of economic regulation.

    The California Supreme Court declined to adopt Glickman’s construction of the First Amendment’s Free Speech Clause. In relevant part, Article I of the California Constitution provides that "[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." Cal. Const. Art. I, Sec. 2(a).

    The California high court ruled that "Article I’s free speech clause and its right to freedom of speech are not only as broad and as great as the First Amendment’s, they are even ‘broader’ and ‘greater.’" Gerawan, 101 Cal. Rptr. 2d at 486. Specifically, the California court noted that Article I’s free speech clause is unlike the First Amendment in that Article I explicitly creates a "right" to freedom of speech rather than simply safeguarding any such right against encroachment. Second, Article I’s right to freedom of speech is broader because it is unbounded in range. Thus, it applies to all potential censors rather than only to governmental actors. Third, Article I is unbounded in scope because it explicitly embraces all subjects.

    The California Supreme Court also employed an historical analysis of Article I. Its analysis determined that, unlike the First Amendment, Article I protects commercial speech in the form of truthful and nonmisleading messages and lawful products and services. In so ruling, the court relied extensively upon the U.S. Supreme Court’s decision in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996), and a law review article, written by the author of this section, which explains the historical underpinnings of the First Amendment’s free speech clause. See Daniel E. Troy, Advertising: Not "Low Value" Speech, 16 Yale J. on Reg. 85 (1999).

    In undertaking its historical analysis, the California court noted that the U.S. Supreme Court had not yet decreased the level of protection due commercial speech when Article I’s free speech clause was drafted in 1849, or when the article was redrafted for the present California Constitution in 1879. The U.S. Supreme Court had introduced its commercial/noncommercial speech dichotomy by 1974 when Article I was first amended. However, the California Supreme Court determined that "there is no basis on which to conclude that the 1974 amendment of Article I’s free speech clause incorporated what had transpired in the intervening years." Gerawan, 101 Cal. Rptr. 2d at 490. Nor did the California court find any "reason to reject protection for commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services," when Article I was amended again in 1980. Id.

    Based upon the foregoing distinctions between the First Amendment’s Free Speech Clause and Article I’s right to free speech, the California Supreme Court concluded that the state’s marketing order did not implicate any First Amendment right. However, the order surely implicated the right to freedom of speech under Article I of the California Constitution. The court ruled that "Article I’s right to freedom of speech protects commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services." Id. at 499. The court determined that Article I "would not allow compelling one who engages in commercial speech to say through advertising what he would not otherwise say...." Id. at 500.

    The California Supreme Court remanded the case to a lower court to determine whether the marketing order at issue actually violated Article I’s free speech guarantee. A decision in the lower court case will probably be issued in the latter half of 2001.