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Oral Argument in Wileman Brothers Case Leaves Open Compelled Speech QuestionBy Daniel E. Troy, Esq. |
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The oral argument in Glickman v. Wileman Brothers & Elliott, Inc., held Dec. 2, 1996, left many observers wondering if an "easy" victory for commercial speech was suddenly much less certain. Although some of the challengers had engaged the services of Michael McConnell, one of the leading First Amendment scholars and advocates in the country, the oral argument was presented by the lawyer who handled the case in the lower court, who specializes in employment law in Fresno, Calif. |
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Post-argument analyses noted that he failed to articulate crisply a First
Amendment injury and that he made a number of unfortunate concessions. Whether
they will affect the ultimate outcome of the case remains to be seen.
The case involves the question of whether the Secretary of Agriculture violated the First Amendment by ordering the handlers of California peaches, plums, and nectarines to fund generic advertising. The U.S. Court of Appeals for the Ninth Circuit had found the assessments unconstitutional, declaring 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." Alan Jenkins, an assistant to the Solicitor General, argued the case for the United States. He sought to overturn the lower court's decision by analogizing these assessments to compelled funding of unions by their members and to compelled funding of programs of an integrated bar association by lawyers. The Supreme Court has previously said that the government may require union members to contribute to their unions and lawyers to give money to the state's bar organization.
Justice Ginsburg asked whether the government's interest in the price of fruit was comparable to the state's interest in labor peace and in an informed bar. She expressed skepticism about the need for the forced generic advertising program. Justice Souter noted the "peculiarity" of having such a program for California peach growers only, when peaches are grown in 30 states. Justice Scalia described the program as "a time warp from the 1930s," and wondered why the Court had to believe that this "industrial policy" was needed. Justice Scalia called the organized bar a "special situation," and noted that unions, unlike the committees that control this generic advertising, have a fiduciary responsibility to all of those whom they represent. Even Chief Justice Rehnquist, who often votes against those seeking to vindicate commercial speech rights, suggested that the marketing orders, which govern the size, quality, and maturity of fruit, may be justified, but not the compelled advertising. (Justice Ginsburg made a similar point as well.) The Chief Justice later remarked that the Beer Institute would undoubtedly like to be able to have the government assess fees on all those whom it regarded as "free riders," and doubtfully asked whether that trade association could get Congress to impose assessments on beer. Perhaps the most damaging question was from Justice O'Connor, often a key swing vote. She described as "amazing" the fact that the ostensibly generic advertising campaign had pushed a proprietary brand of nectarine, handled by one grower only, called "Red Jim." "Can you defend that under any test?" she asked Jenkins. "Do you defend the right of the government to take money from many to advertise one person's nectarine?" Jenkins was well prepared, and did as well as he could against this barrage of questions, given the weakness of his case. But he was forced to concede that the situation described by Justice O'Connor was indefensible.
Although an overwhelming majority of the handlers challenging the forced advertising program had favored having University of Chicago law professor Michael McConnell argue the case, Fresno lawyer Tom Campagne won a coin flip, and thus the right to present the oral argument. Campagne was asked repeatedly to articulate a First Amendment injury. His response, which frustrated the justices, was to describe the forced advertising program as irrational or arbitrary, Each time he did this, he was reminded that, as Justice O'Connor put it, he was not "here on an APA [Administrative Procedure Act] claim," which permits challenges to arbitrary governmental action, but that he needed to explain why a requirement that a handler contribute to advertising -- which leads to more speech, not less -- violated the First Amendment. Justice Ginsburg said that she was confused by his brief and that she was unclear about whether he was contending either (a) that all of the Secretary of Agriculture's forced advertising programs, which cover a wide variety of agricultural products, were unconstitutional; or (b) that some of these programs were permissible, but that the particular program at issue in this case happened to be unconstitutional because of specific facts and the way it was administered. To this query, Mr. Campagne replied that he was arguing "both" theories -- even though they are logically inconsistent propositions. As Tony Mauro reported in the Legal Times, Mr. Campagne "spent considerable time discussing varieties of fruit to make his point that generic ads for one kind of peach or plum do not benefit those who grow other varieties." He often seemed to dwell on the facts of the case, to the exclusion of making a compelling First Amendment argument. At one point, the discussion took a turn for the bizarre. Mr. Campagne pointed at Justice Scalia and said: "You ought to buy green plums and give them to your wife, and you're thinking to yourself right now that you don't want to give your wife diarrhea." Startled, Justice Scalia replied: "Green plums? I would never give my wife a green plum. I've never even seen a green plum." The day after the argument, Prof. Michael McConnell sent the Court a letter reaffirming the position of the growers he represented that the government lacks the power to impose these generic advertising programs. The letter sought to distance McConnell's clients from Campagne's concessions. Trying to predict the Supreme Court's direction from an oral argument is a perilous task. In some few cases, the positions of the justices are sufficiently well defined that the comments of one justice who represents a swing vote can serve as a solid basis for a prediction. In some other cases, the Court is sufficiently vociferous and unanimous that oral argument can support an educated guess. No such guess can be made based on the oral argument in Wileman. What seems apparent is that proponents of commercial speech lost the opportunity to be represented by one of the foremost First Amendment advocates in the country. What also seems apparent is that the justices' concerns about the nature of the First Amendment injury at issue were not resolved. A decision is expected by late June. 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. He is also an associate scholar at the American Enterprise Institute. |
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Jenkins
was intensively questioned by almost all of the justices. Justice O'Connor
expressed doubt that the government had preserved the lower-court argument it
was making. (Arguments may not be made for the first time on appeal to the
Supreme Court.)
Thus,
when Jenkins sat down, many believed the Court was disposed to render a strong
and virtually unanimous opinion affirming the lower court and finding the
program unconstitutional.