By David L. Hudson, Jr.

A federal marketing order that imposes fees on individual almond handlers to fund generic advertising does not violate the First Amendment, the U.S. Court of Appeals for the Ninth Circuit ruled recently.

A group of almond handlers led by Cal-Almond, Inc. argued that the mandatory fees compelled their speech and prevented them from engaging in the advertising of their choice.

The U.S. Department of Agriculture defended the program, saying that the mandatory, generic advertising program was not a speech restriction but an economic regulatory effort.

The Ninth Circuit had ruled in 1993 that the law violated the First Amendment. "The First Amendment right of free speech includes a right not to be compelled to render financial support for others' speech," the court said in Cal-Almond, Inc. v. U.S. Dep t. of Agriculture ("Cal-Almond I").

However, the U.S. Supreme Court sent the case back to the lower court after the High Court agreed to hear a similar case involving mandatory advertising for fruit handlers -- Glickman v. Wileman Bros. & Elliott, Inc.

The USDA's defense cited the 1997 Wileman decision, in which the High Court upheld a federal program forcing fruit producers to pay for generic ads to promote their industry.

"The fact that an economic regulation may indirectly lead to a reduction in a handler's individual advertising budget does not itself amount to a restriction on speech," wrote the Supreme Court in its 5-4 decision.

In its Sept. 21 opinion in Cal-Almond, the Ninth Circuit relied on the High Court's reasoning in Glickman to hold that the advertising program, which requires contributions for generic advertising, does not violate First Amendment free-speech rights.

Cal-Almond argued that its free-speech rights were limited because the mandatory assessments decreased its advertising budget.

The Ninth Circuit rejected that argument, citing the U.S. Supreme Court in Wileman that "[b]ecause almond handlers remain free to choose whether and how to advertise directly, it cannot be said to constitute compelled speech."

The appeals court noted that the Wileman decision "makes plain that such challenges to the wisdom or effectiveness of a promotional program raise questions of economic policy, rather than questions of constitutional import."

Cal-Almond attempted to distinguish Wileman by noting that, unlike the mandatory marketing order in Wileman, the Almond Order challenged in Cal-Almond provided for certain credit-back programs. Cal-Almond argued it was less likely to receive credit for its chosen method of advertising and was, therefore, disadvantaged vis-à-vis its competitors.

The Ninth Circuit rejected this distinction as constitutionally insignificant, writing that "the flexibility provided by the creditable and credit-back programs instead supports the conclusion that the assessments here are constitutional."

In fact, the Ninth Circuit noted that the credit-back program, if anything, compared favorably in a constitutional sense with the more rigid assessments in Wileman.