A mushroom producer from Tennessee accomplished what California fruit growers could not do four years earlier: convince the U.S. Supreme Court that mandatory assessments for generic advertising violated the First Amendment and constituted impermissible compelled speech.

     In Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997), the High Court ruled 5 to 4 that generic advertising programs funded by California fruit growers subject to government marketing orders did not constitute compelled speech, but were merely an aspect of broader economic regulation.

     The majority determined that the marketing orders in Wileman 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.”  The majority concluded that the marketing orders were “a species of economic regulation” that should “enjoy the same strong presumption of validity that we accord to other policy judgments made by Congress.”

     The Department of Justice argued that the ruling in Wileman controlled the analysis in the mushroom case.  The government argued that the generic advertising mandated by the Mushroom Promotion, Research, and Consumer Information Act was similar to that of the California tree fruit industry.  The government argued that the generic ads furthered the government’s legitimate purpose of increasing consumption of mushrooms generally.

     United Foods argued that the mandatory generic advertising program amounted to compelled speech, and that other mushroom producers were shaping the content of the advertising to its disadvantage.  United Foods also argued that the mushroom market was much less regulated than the highly collectivized market of California tree fruits.

     The Supreme Court agreed with United Foods and distinguished the Wileman decision.  Writing for the majority, Justice Anthony Kennedy noted: “The program sustained in [Wileman] differs from the one under review in a most fundamental respect.”  He explained that the forced advertising in the California tree fruit case was a secondary element of a much broader scheme of economic regulation.  In the case of mushrooms, however, he wrote that “for all practical purposes, the advertising itself, far from being ancillary, is the principal object of the regulatory scheme.”

     The majority noted that there were no marketing orders regulating how mushrooms can be produced, no exemption from antitrust laws, and nothing preventing individual mushroom producers from making their own marketing decisions.

     The majority relied on a line of compelled speech cases concerning union dues and state bar fees.  Abood v. Detroit Board of Education, 431 U.S. 209 (1977); Keller v. State Bar of California, 496 U.S. 1 (1990).  Those cases stand for the principle that objecting members of an association cannot be forced to fund speech for matters not germane to the larger regulatory purpose.

     In the United Foods case, however, there was no larger regulatory purpose other than generic ads for mushrooms.  “We have not upheld compelled subsidies for speech in the context of a program where the principal object is speech itself,” the Court wrote.

     Interestingly, the majority decided the case on the compelled speech line of cases rather than its commercial speech line of cases and the familiar test for commercial speech regulations developed in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).  The majority did note the controversy over whether commercial speech should receive less protection than other forms of speech.  The majority wrote that it “need not enter the controversy, for even viewing commercial speech as entitled to lesser protection, we find no basis under either [Wileman] or our other precedents to sustain the compelled assessments sought in this case.”

     Justice Clarence Thomas continued his strong stance in commercial speech jurisprudence, writing in his short concurring opinion: “Any regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny.”