Court's View of Wileman as Economic Issue May Help Commercial Speech in Long Run

Robert M. O'Neil

The late-June Supreme Court decision in Glickman v. Wileman Bros. & Elliott, Inc. may seem to exemplify the maxim "When you're ahead, don't press your luck."

Everything appeared to be going beautifully for defenders and practitioners of commercial speech. Last year's stinging rebuke to state suppression of truthful commercial information, in the 44 Liquormart case, set the tone for regulation of advertising in the late '90s.

It is at such times that one should not tempt fate or defy the gods. That might appear to be what happened in the Wileman case. Appearances may, however, deceive -- even in constitutional law.

The facts and the outcome of the case have been admirably stated elsewhere (see Digest, Summer 1997, p. 2). A sharply divided (5-4) Supreme Court rejected a First Amendment challenge by California fruit growers to mandated assessments under a federal agricultural marketing agreement, portions of which were spent on generic product advertising and promotion.

While conceding that the wisdom of such a program might be "debatable," the majority found its doubts "insufficient to warrant special First Amendment scrutiny." At first, the Wileman decision seemed to deal a severe blow to commercial speech by rejecting the court of appeals' application of the Central Hudson test to a novel form of government regulation of expression. That is indeed how the dissenters saw the case.

Yet the very fact that the majority opinion was that of Justice Stevens -- author of 44 Liquormart, and staunch protector of commercial speech -- should cause us to look more closely. There are several other significant and potentially reassuring features.

First in mitigation is the very unusual nature of the case. The Supreme Court has always dealt gingerly and deferentially with agricultural marketing agreements, showing little sympathy toward malcontents and defectors who take from the cooperative what they like but spurn what they feel they could do better on their own.

In this case, the marketing program was seen as an inseparable part of a collective enterprise, for which members paid a comprehensive fee. Moreover, the speech to which the growers objected here served directly to promote their products.

There was no claim of dissonance in content, and surely (as the Court observed) no "crisis of conscience" of a type that an abhorrent or uncongenial message might have evoked. Nor was there any proof that paying the mandated assessments had abridged the growers' marketing budgets. Thus the case could hardly have been a less appealing one, even to so staunch a friend of commercial speech as Justice Stevens.

A second source of comfort was the Wileman majority's basic approach to the First Amendment issue. The Court might have said that commercial speech could be compelled or coerced under conditions where political speech was immune -- but that is precisely what Justice Stevens did not say. The distinction between commercial and noncommercial expression -- always elusive, and long troublesome to Justice Stevens -- was simply not a factor here.

Throughout the opinion, the focus was on coerced speech -- not commercial speech -- as a distinctive category of expression. What turned out to be less than fully protected was not advertising, but assessments for congenial collective expression, whatever the subject.

From this analysis emerges a rather hopeful, but entirely plausible, inference: If government compels a person to engage in abhorrent commercial speech -- let's say, to pay for counter-ads that disparage his product or service -- then the full protection of the coerced political speech decisions would be available.

Whether it is anti-smoking billboards in New York City, or anti-liquor spots on radio and television, the case against coerced commercial messages now seems to rest on even more solid ground as a direct result of the Wileman case.

Finally, the sharp split within the Court offers substantial solace. Even so unappealing a case as that pressed by the California growers drew four dissenting votes.

Those Justices would not only have adapted Central Hudson to fit this novel situation. They would also have extended the coerced speech doctrine beyond any of its historical applications to political speech -- in short, to a situation where the message being induced was essentially the one the speaker wanted to convey, but which he felt he could convey better by spending his own money than could the cooperative he had joined and from which he drew many other benefits.

Another such defeat, one might say, and we should have ample cause for celebration. Meanwhile, one should view the Supreme Court's latest pronouncement on commercial speech as far less than an unmitigated disaster.








Glickman v. Wileman Bros. & Elliott, Inc., 58 F.3d 1367 (9th Cir. 1995), __ U.S. __, __ S. Ct. __, 1997 WL 345357 (No. 95-1184).

44 Liquormart, Inc. v. Rhode Island, 517 U.S. __, 116 S. Ct. 1495 (1996).

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980).

Robert M. O'Neil is the Founding Director of The Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va. He is also a professor of law at the University of Virginia.