Compelled Speech Next on Court's Agenda as Fruit Growers Challenge Generic AdsBy Daniel E. Troy, Esq.
Did the Secretary of Agriculture violate the First Amendment by ordering the handlers of California plums, peaches, and nectarines to fund generic advertising? That will be the next commercial speech question facing the Supreme Court this fall in Glickman v. Wileman Brothers & Elliott, Inc. The Court will have to decide which First Amendment standard should be applied where the government compels commercial entities to contribute money directly to the formulation of messages that are not overtly political, but with which the contributor may disagree. The case's primary importance: It is the next commercial speech case the Supreme Court will hear after 44 Liquormart, and will further illuminate the implications of that decision. The Case. The Secretary of Agriculture regulates, among other things, fruit maturity and minimum size through marketing orders issued pursuant to the Agricultural Marketing Agreement Act of 1937. These orders also impose assessments on handlers for the costs of a generic advertising program. These assessments are based on the volume of fruit each grower handles. The assessments are turned over to industry committees that develop the details of the generic advertising programs. The Ninth Circuit adhered to its decision in a similar case, Cal-Almond, Inc. v. USDA, and struck down the advertising assessments as unconstitutional. The court began by noting that "[t]he First Amendment right of freedom of speech includes a right not to be compelled to render financial support for others' speech....This is also true when commercial speech is at issue." The court then applied the Central Hudson test, which the court said was not satisfied. In analyzing Central Hudson's third prong, which requires that the government's regulation directly advance its goal, the court first asserted that "the Supreme Court assumes as a matter of law that advertising increases the consumption of the product being advertised." Nonetheless, the court held that the marketing orders failed Central Hudson 's third prong because the government had failed to establish that the generic advertising did a better job at selling the product than the "specific, targeted marketing efforts of individual handlers." The court also agreed that Central Hudson's fourth prong was not met because of the less restrictive alternatives available, such as the possibility of seeking a credit for a handler's own advertising endeavors. The United States government has challenged this decision, arguing, among other things, that Central Hudson does not apply because a government order compelling contributions to commercial speech is assessed under a more forgiving standard than even Central Hudson. In particular, the government argues that the ability of every company to continue advertising as it likes makes this restriction subject to especially lenient scrutiny. Many influential amici have weighed in on behalf of the program and the Secretary of Agriculture. Amicus briefs have been filed on behalf of the United States by the National Association of State Departments of Agriculture, as well as by the attorneys general of the states of Arizona, California, Florida, Georgia, Michigan, Nebraska, New Jersey, Oregon, Vermont, Virginia, and Washington, in a joint submission. Wileman Brothers & Elliot suggests a number of important arguments that might be advanced in favor of commercial speech rights: Compelled speech should not be assessed under the Central Hudson test at all, even in its now-strengthened form. Rather, such requirements should be subjected to elevated scrutiny. The argument that the government has the power or ability to force companies to spend money on advertising, and to determine the nature and content of such advertising, is highly paternalistic in nature. (In this regard, it is worth noting that some of the handlers disagree with some aspects of the content of the government mandated advertising.) The government's orders do not fall into the category of regulations that are needed "to preserve the bargaining process," which the Supreme Court indicated in 44 Liquormart might serve as a justification for applying the Central Hudson test. Thus, under the application of 44 Liquormart, Central Hudson does not apply. A strong argument can be made that the Central Hudson test was not met. In particular, there appears to be no compelling governmental interest in such a program. This case could provide an opportunity once again to review the historical protection extended to commercial speech, and also try to answer the questions posed by Justice Scalia in 44 Liquormart. In his concurring opinion in that case, it will be recalled, Justice Scalia evinced a willingness to extend elevated protection to commercial speech. He sought evidence about a historical national consensus on this issue, specifically inquiring about (1) the practices of the states at the time the Bill of Rights was ratified; (2) the regulation and protection of advertising at the time the 1 4th Amendment was ratified; and (3) any regulation or protection of advertising before the Court became involved in the issue in the 1970s. At least one amicus brief has been filed (by advertising, publishing, and marketing interests) in an attempt to answer these questions. Daniel E. Troy is a partner at the Washington, D. C., law firm of Wiley, Rein & Fielding. He specializes in media law and appellate litigation, with an emphasis on the First Amendment. |
Which Test Should Govern Compelled Speech?In his petition for certiorari, the Solicitor General asserted that the Ninth Circuit's decisions in Wileman and Cal-Almond were in conflict with the Third Circuit's decision in United States v. Frame.The Frame ruling upheld a comparable governmental advertising program under the Beef Promotion Research Act of 1985, supported by a levy on beef producers. The petition argued that the Ninth Circuit was incorrect in evaluating such federal industry-supported advertising programs under Central Hudson, and that the Third Circuit was correct in upholding them under a three-part "associational" test ("compelling" government interest, serving an "ideologically neutral" purpose, with "slight" interference with First Amendment rights). This test derived from Abood v. Detroit Board of Education. (compelled funding of unions by members) and Keller v. State Bar of California (compelled funding of programs of integrated bar association). The petition did not cite the Court's primary compelled speech cases, West Virginia Board. Of Education v. Barnette (striking down a required flag salute), Wooley v. Maynard (holding impermissible a state license plate, "Live Free or Die"), or Pacific Gas & Electric v. Public Utilities Commission (invalidating a requirement that utilities include counter speech in billing envelopes). Those latter cases were relied upon in a May 20 decision of the California Court of Appeal in California Kiwifruit Commission v. Moss. The ultimate First Amendment debate in Wileman will center around which test will be applied to such categories of required speech: the Barnette/Wooley/ PC&E strict scrutiny test, the Central Hudson intermediate scrutiny test, or the weaker Third Circuit Frame test. -PCD
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