The U.S. Supreme Court decided in November 2000 to revisit the topic of generic advertising programs for agricultural products -- a subject it last tackled in 1997. The High Court will decide if a mandatory national ad campaign for mushrooms is compelled speech that implicates the First Amendment, or is merely a form of economic legislation that should not receive special First Amendment scrutiny.

    On Nov. 23, 1999, the U.S. Court of Appeals for the Sixth Circuit ruled that certain provisions of the Mushroom Promotion, Research, and Consumer Information Act of 1990, 7 U.S.C. Sec. 6101 et seq., violated the commercial speech rights of United Foods. United Foods, Inc. v. United States, 197 F.3d 221 (1999), cert. granted, 121 S. Ct. 562 (Nov. 27, 2000) (No. 00-276). The Tennessee-based company had argued that the generic advertising program in which it was required to participate under the Act amounted to compelled speech, and that other mushroom producers were shaping the content of the advertising to United’s disadvantage.

    Judge Gil Merritt distinguished the mushroom case from what he termed the U.S. Supreme Court’s "controversial 5-4 decision" in Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997). In that decision Justice Stevens ruled for the majority that generic advertising funded by California fruit growers subject to government marketing orders did not constitute compelled speech, but was merely an aspect of broader economic regulation. Justice Stevens ruled that the Ninth Circuit had erred in analyzing the compelled ad program for California fruits under the familiar Central Hudson standard so commonly employed in commercial speech cases.

    Justice Stevens determined that the marketing order did not restrain producers from communicating "individual messages to consumers," "compel any person to engage in any actual or symbolic speech," or force anyone to "endorse or to finance any political or ideological views." Justice Stevens concluded: "In sum, what we are reviewing is a species of economic regulation that should enjoy the same strong presumption of validity that we accord to other policy judgments made by Congress."

    Justice Souter, joined by Chief Justice Rehnquist, wrote a dissenting opinion finding that the mandatory ad program should be analyzed under the Central Hudson standard. Justice Thomas, joined by Justice Scalia, also wrote a dissenting opinion. Justice Thomas reiterated his view that commercial speech should not be afforded second-class status in First Amendment jurisprudence -- a view he first advanced in the 1996 decision 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518-28 (Thomas, J., concurring). The dissenting justices viewed the majority opinion in Wileman as finding no First Amendment right to be free from coerced subsidization of commercial speech.

    In its November 1999 decision, the Sixth Circuit took pains to distinguish Justice Stevens’s opinion in Wileman Bros. The appeals court ruled that mushroom growers could not be forced to finance a national mushroom ad campaign under the Mushroom Promotion, Research, and Consumer Information Act of 1990.

    The Sixth Circuit did not read Justice Stevens’s opinion as foreclosing any First Amendment analysis of compelled ad programs. "We do not read the majority opinion in Wileman as saying that any compelled commercial speech that is nonpolitical or nonsymbolic or nonideological does not warrant First Amendment protection," Judge Merritt wrote. "The Court’s holding in Wileman, we believe, is that nonideological compelled, commercial speech is justified in the context of the extensive regulation of an industry but not otherwise."

    The Sixth Circuit panel then went to some length to distinguish what it called the "unregulated" mushroom business from the "collectivized California tree fruit business." The court noted that "the mushroom market has not been collectivized, exempted from antitrust laws, subjected to a uniform price, or otherwise subsidized through price supports or restrictions on supply." In such an unregulated environment, mandatory contributions to generic marketing efforts amount to compelled speech, the court concluded.

    Judge Merritt’s opinion for the panel appears to take issue with the Supreme Court’s 1997 decision. His opening sentence begins: "In this case of compelled commercial speech...." In addition to calling Justice Stevens’s opinion "controversial," Judge Merritt quotes Justice Souter’s dissenting opinion in Wileman Bros. with favor in a footnote.

    After a petition for en banc review was denied on March 23, 2000, the government appealed to the Supreme Court, which agreed on Nov. 27, 2000 to review the Sixth Circuit panel’s decision. In its petition for certiorari, the government argued that the Sixth Circuit erred in its interpretation of the majority opinion in Wileman Brothers. According to the government, "the Sixth Circuit’s decision creates considerable uncertainty about the constitutionality of other federal and state generic advertising programs."

    Observers hope the High Court will clarify its 1997 Wileman Bros. decision by the summer of 2001. Oral argument was slated for April 17, 2001.