Glickman v. Wileman Brothers & Elliott, Inc.
Glickman v. Wileman Brothers & Elliott, Inc.
Opinion of the Court
delivered the opinion of the Court.
A number of growers, handlers, and processors of California tree fruits (respondents) brought this proceeding to challenge the validity of various regulations contained in marketing orders promulgated by the Secretary of Agriculture. The orders impose assessments on respondents that cover the expenses of administering the orders, including the cost of generic advertising of California nectarines, plums, and peaches. The question presented to us is whether the requirement that respondents finance such generic advertising
I
Congress enacted the Agricultural Marketing Agreement Act of 1937 (AMAA), ch. 296, 50 Stat. 246, as amended, 7 U. S. C. § 601 et seq., in order to establish and maintain orderly marketing conditions and fair prices for agricultural commodities. § 602(1). Marketing orders promulgated pursuant to the AMAA are a species of economic regulation that has displaced competition in a number of discrete markets; they are expressly exempted from the antitrust laws. § 608b. Collective action, rather than the aggregate consequences of independent competitive choices, characterizes these regulated markets. In order “to avoid unreasonable fluctuations in supplies and prices,” § 602(4), these orders may include mechanisms that provide a uniform price to all producers in a particular market,
Marketing orders must be approved by either two-thirds of the affected producers or by producers who market at
Among the collective activities that Congress authorized for certain specific commodities is “any form of marketing promotion including paid advertising.” 7 U. S. C. § 608c(6) (I).
The regulations at issue in this litigation are contained in Marketing Order 916, which regulates nectarines grown in California, and Marketing Order 917, which originally regulated peaches, pears, and plums grown in California.
Respondent Wileman Bros. & Elliott, Inc., is a large producer of these fruits that packs and markets its own output as well as that grown by other farmers. In 1987, after encountering problems with some fruit varieties under the maturity and minimum size standards in the orders, it refused to pay its assessments and filed a petition with the Secretary challenging those standards. In 1988, it filed a second petition challenging amendments to the maturity standards as well as the generic advertising regulations. The Administrative Law Judge (ALJ), in two separate decisions that are explained in a total of 769 pages, ruled in favor of Wileman on the Administrative Procedure Act (APA) issues, without resolving respondents’ First Amendment claims. App. to
In the Court of Appeals the handlers challenged the generic advertising provisions of the orders as violative of both the APA and the First Amendment. The court rejected the statutory challenge, concluding that the record contained substantial evidence justifying both the original decision to engage in generic advertising
*465 “The Nectarine Administrative Committee and the Peach Commodity Committee engage in a careful process each year prior to and during their annual spring meetings in approving the advertising program for the upcoming season. Prior to the full committee meeting, the Subcommittee on Advertising and Promotion meets to review in detail the program developed by its staff. The staff in turn uses monthly reports on price trends, consumer interests, and general market conditions in the formation of the proposed advertising program.
“[I]t is only because the handlers themselves, through the committees, recommend a budget with a generic advertising component that the program is renewed by the Secretary every year. In fact, in most years the recommendations have been unanimous. We cannot assume that the handlers — the parties with firsthand knowledge of the state of their industry — would make recommendations that have an adverse effect on their businesses. Of course, the interests of the voting committee members may not always coincide with those of every handler in the industry. However, this court has previously noted that the Supreme Court ‘upheld the constitutionality of the system despite the fact that it may produce results with which some growers or handlers will disagree.’ Saulsbury Orchards and Almond Processing, Inc. v. Yeutter, 917 F. 2d 1190, 1197 (9th Cir. 1990) (citing United States v. Rock Royal Coop., 307 U. S. 533 ... (1939)).” Wileman Bros. & Elliott, Inc. v. Espy, 58 F. 3d 1367, 1375-1376 (CA9 1995) (footnote omitted).
The Court of Appeals concluded, however, that Government enforced contributions to pay for generic advertising violated the First Amendment rights of the handlers. Relying on an earlier Ninth Circuit decision that had cited our
The Court of Appeals’ disposition of the First Amendment claim is in conflict with a decision of the Court of Appeals for the Third Circuit that rejected a challenge to generic advertising of beef authorized by the Beef Promotion and Research Act of 1985, 7 U. S. C. §§ 2901-2911. United States v. Frame, 885 F. 2d 1119, 1136, 1137 (1989). Characterizing that statute as “legislation in furtherance of an ideologically neutral compelling state interest,” id., at 1137, and noting that the “Cattlemen’s Board is authorized only to develop
We granted the Secretary’s petition for certiorari to resolve the conflict, 517 U. S. 1232 (1996), and now reverse.
III
In challenging the constitutionality of the generic advertising program in the Court of Appeals, respondents relied, in part, on their claimed disagreement with the content of some of the generic advertising. 58 F. 3d, at 1377, n. 6. The District Court had found no merit to this aspect of their claim,
For purposes of our analysis, we neither accept nor reject the factual assumption underlying the Court of Appeals’ invalidation of the program — namely, that generic advertising may not be the most effective method of promoting the sale of these commodities. The legal question that we address is whether being compelled to fund this advertising raises a First Amendment issue for us to resolve, or rather is simply a question of economic policy for Congress and the Executive to resolve.
IV
Three characteristics of the regulatory scheme at issue distinguish it from laws that we have found to abridge the freedom of Speech protected by the First Amendment. First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience.
Respondents advance several arguments in support of their claim that being required to fund the generic advertising program violates the First Amendment. Respondents argue that the assessments for generic advertising impinge on their First Amendment rights because they reduce the amount of money that producers have available to conduct their own advertising. This is equally true, however, of assessments to cover employee benefits, inspection fees, or any other activity that is authorized by a marketing order. The First Amendment has never been construed to require heightened scrutiny of any financial burden that has the incidental effect of constraining the size of a firm’s advertising budget. 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.
The Court of Appeals, perhaps recognizing the expansive nature of respondents’ argument, did not rely on the claim that the assessments for generic advertising indirectly limit the extent of the handlers’ own advertising. Rather, the Court of Appeals apparently accepted respondents’ argument that the assessments infringe First Amendment rights because they constitute compelled speech. Our compelled speech case law, however, is clearly inapplicable to the regulatory scheme at issue here. The use of assessments to pay
Although this regulatory scheme may not compel speech as recognized by our case law, it does compel financial contributions that are used to fund advertising. As the Court of Appeals read our decision in Abood, just as the First Amendment prohibits compelled speech, it prohibits — at least without sufficient justification by the government — compelling an individual to “render financial support for others’ speech.” 58 F. 3d, at 1377. However, Abood, and the cases that follow it, did not announce a broad First Amendment right not to be compelled to provide financial support for any organization that conducts expressive activities. Rather, Abood merely recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one’s “freedom of belief.” 431 U. S., at 235. We considered, in Abood, whether it was constitu
Here, however, requiring respondents to pay the assessments cannot be said to engender any crisis of conscience. None of the advertising in this record promotes any particular message other than encouraging consumers to buy California tree fruit. Neither the fact that respondents may prefer to foster that message independently in order to promote and distinguish their own products, nor the fact that they think more or less money should be spent fostering it, makes this case comparable to those in which an objection rested on political or ideological disagreement with the content of the message. The mere fact that objectors believe their money is not being well spent “does not mean [that] they have a First Amendment complaint.” Ellis v. Railway Clerks, 466 U. S. 435, 456 (1984).
Moreover, rather than suggesting that mandatory funding of expressive activities always constitutes compelled speech in violation of the First Amendment, our cases provide affirmative support for the proposition that assessments to fund a lawful collective program may sometimes be used to pay for speech over the objection of some members of the
As we pointed out in Keller, “Abood held that a union could not expend a dissenting individual’s dues for ideological activities not ‘germane’ to the purpose for which compelled association was justified: collective bargaining. Here the compelled association and integrated bar are justified by the State’s interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.” Id., at 13-14. This test is clearly satisfied in this case because (1) the generic advertising of California peaches and nectarines is unquestionably germane to the purposes of the marketing orders and, (2) in any event, the assessments are not used to fund ideological activities.
V
The Court of Appeals’ decision to apply the Central Hudson test is inconsistent with the very nature and purpose of the collective action program at issue here. The Court of
On occasion it is appropriate to emphasize the difference between policy judgments and constitutional adjudication.
Generic advertising is intended to stimulate consumer demand for an agricultural product in a regulated market. That purpose is legitimate and consistent with the regulatory goals of the overall statutory scheme. See § 602(1). At least a majority of the producers in each of the markets in which such advertising is authorized must be persuaded that it is effective, or presumably the programs would be discontinued.
As with other features of the marketing orders, individual producers may not share the views or the interests of others in the same market. But decisions that are made by the majority, if acceptable for other regulatory programs, should be equally so for promotional advertising. Perhaps more money may be at stake when a generic advertising program
The judgment of the Court of Appeals is reversed.
It is so ordered.
See, e. g., United States v. Rock Royal Co-operative, Inc., 307 U. S. 533 (1939); West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 188-189 (1994).
Congress amended the AMA A in 1954 to authorize the Secretary to establish “marketing ... development projects.” See Agricultural Act of 1954, § 401(c), 68 Stat. 906.
Those regulations include provisions minimizing the risk that the generic advertising might adversely affect the interests of any individual producer. See 7 U. S. C. § 608c(16)(A)(i) (providing for termination or suspension of an order that does not “effectuate the declared policy” of the AMAA); § 608e(16)(B) (providing for termination of an order if a majority of producers does not support a regulation); § 608c(15)(A) (allowing handlers subject to a marketing order to petition for modification or exemption from an order that is inconsistent with the statute). For the purpose of this case, we assume that those regulations accomplish their goals, and that the generic advertising programs therefore further the interests of
The original marketing order for California peaches and plums was first issued in 1939. See 4 Fed. Reg. 2135 (1939). The marketing order for California nectarines was issued in 1958. See 7 CFR § 937.45 (1959).
The plum portion of Order 917 was terminated in 1991 after a majority of plum producers failed to vote for its continuation, see 56 Fed. Reg. 23772, but because some of the respondents are seeking a refund of 1991 assessments for plum advertising, the validity of that portion of the program is not moot.
The ALJ indicated that if respondents “were not to succeed in their nonconstitutional arguments” she would rule in their favor on the First Amendment claim. App. to Brief in Opposition 393a.
The Court of Appeals quoted the following as a “typical excerpt”: “ ‘The record shows a wide consensus among the peach and pear industries that promotional activities have been beneficial in increasing demand and should be continued.
“ ‘Media generally is expensive but some things can be done selectively in this field that are inexpensive and yet create an impact on the buying trade as well as the consuming public. Trade paper ads, particularly at the beginning of the season, together with the editorial support'which trade papers are willing to accord an advertiser are helpful in launching a program for seasonal ñ'uits such as peaches and pears. Spot radio or TV commercials in the principal markets during peak movement periods have proved to be successful. It has been found in many fresh promotional programs that spot announcements, particularly when developed with a “dealer tag” at the end of each spot, have considerable influence in triggering retail promotions. 41 Fed. Reg. 14,375, 14,376-77 (1976).’ ” Wileman Bros. & Elliott, Inc. v. Espy, 58 F. 3d 1367, 1375 (CA9 1995).
Respondents also challenged other features of the collective program including the fruit maturity and minimum size requirements. Reviewing these aspects of the order pursuant to the deferential standard of review provided in the APA, the Court of Appeals found that they were not arbitrary and capricious. See 58 F. 3d, at 1382, 1384.
The plaintiff had claimed that he disagreed with the point of view expressed in advertising that the consumption of beef is “ ‘desirable, healthy, nutritious’”; the court concluded that his claim was not “a dispute over anything more than mere strategy.” Frame, 885 F. 2d, at 1137.
The District Court stated: “Scattered throughout plaintiffs’ briefs are additional objections which are difficult to characterize or quantify. They assert that the advertising condones ‘lying’ in that it promotes the ‘lie’ that red colored fruit is superior, that it rewards mediocrity by advertising all varieties of California fruit to be of equal quality, that it promotes sexually subliminal messages as evidenced by an ad depicting a young girl in a wet bathing suit, and that it promotes the ‘socialistic programs’ of the Secretary. It is impossible from these ‘vague claims’ to determine that plaintiffs’ first amendment rights have been significantly infringed.” Wileman Bros. & Elliott, Inc. v. Madigan, Civ. No. F-90-473-OWW (ED Cal. 1993), reprinted in App. to Pet. for Cert. 91a-92a.
Respondents argue that assessments were used to fund advertisements conveying the message that red nectarines are superior to other nectarines, Brief for Respondents Wileman Brothers et al. 33, and advertisements conveying the message that “all California fruit is the same,” ibid.; Brief for Respondents Gerawan Farming, Inc., et al. 46. They contend that they object to these messages because some of respondent companies grow varieties of nectarines that are not red, and because they seek to promote the fact that the commodities are highly varied. See Brief for Respondents Wileman Brothers et al. 33; Brief for Respondents Gerawan Farming, Inc., et al. 46. Respondents’ argument concerning promotion of red varieties appears to confuse complaints concerning maturity standards imposed on peach and nectarine growers with complaints concerning advertising. See, e. g., App. 233; id., at 692. The argument that the advertising promotes a view that all California fruit is the same is premised upon no particular advertisement, but rather upon testimony by respondents’ executives concerning their general opposition to paying for generic advertising. See, e. g., id., at 588; id., at 662-663.
Respondents also suggest that assessments were improperly used to fund materials promoting fruit varieties grown exclusively by their competitors. Brief for Respondents Wileman Brothers et al. 19-20. The claim, however, arises simply from a single reference to Red Jim nectarines, listed among 25 varieties, on a 1989 chart illustrating the availability of mid- to late-season summer tree fruits. App. 531.
These complaints, if they have any merit, are all essentially challenges to the administration of the program that are more properly addressed to the Secretary.
This fact distinguishes the limits on commercial speech at issue in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447 U. S. 557 (1980), Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), and 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484 (1996).
This fact distinguishes the compelled speech in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), Wooley v. Maynard, 430 U. S. 705 (1977), Riley v. National Federation of Blind of N. C, Inc., 487 U. S. 781 (1988), and the compelled association in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995).
This fact distinguishes cases like Machinists v. Street, 367 U. S. 740 (1961), Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), and Keller v. State Bar of Cal., 496 U. S. 1 (1990).
See n. 10, supra.
The generic advertising program at issue here is even less likely to pose a First Amendment burden than the programs upheld in Lehnert v. Ferris Faculty Assn., 500 U. S. 507 (1991). Lehnert involved collective programs in the context of a union agency-shop agreement which arguably always poses some burden on First Amendment rights. See id,., at 518 (noting that agency-shop agreements inherently burden First Amendment rights); see also Abood, 431 U. S., at 222 (recognizing that all compelled contributions for collective bargaining affect First Amendment interests because an employee may have ideological, moral, or religious objections to the union’s activities). By contrast, the collective programs authorized
As we have already noted, n. 8, supra, respondents failed in their challenge to the other features of the programs before the District Court and the Court of Appeals.
The Court of Appeals fails to explain why the Central Hudson test, which involved a restriction on commercial speech, should govern a case involving the compelled funding of speech. Given the fact that the Court of Appeals relied on Abood for the proposition that the program implicates the First Amendment, it is difficult to understand why the Court of Appeals did not apply Abood’s “germaneness” test.
See, e. g., Appalachian Coals, Inc. v. United States, 288 U. S. 344, 359-360 (1933); Northern Pacific R. Co. v. United States, 356 U. S. 1, 4 (1958); Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623, 647 (1977) (Stevens, J., dissenting).
The Secretary must terminate an order if he determines that it does not further the policies of the AMAA, see 7 U. S. C. § 608c(16)(A)(i), or that a majority of producers does not support it, see § 608e(16)(B). The committee voted unanimously for generic advertising assessments in each of the years at issue here. See 58 F. 3d, at 1376.
Dissenting Opinion
with whom The Chief Justice and Justice Scalia join, and with whom Justice Thomas joins except as to Part II, dissenting.
The Court today finds no First Amendment right to be free of coerced subsidization of commercial speech, for two principal reasons. First, the Court finds no discernible element of speech in the implementation of the Government’s marketing orders, beyond what it sees as “germane” to the undoubtedly valid, nonspeech elements of the orders. Second, the Court in any event takes the position that a person who is neither barred from saying what he wishes, nor subject to personal attribution of speech he dislikes, has no First Amendment objection to mandatory subsidization of speech unless it is ideological or political or contains a message with which the objecting person disagrees. I part company with the Court on each of these closely related points. The legitimacy of governmental regulation does not validate coerced subsidies for speech that the government cannot show to be reasonably necessary to implement the regulation, and the very reasons for recognizing that commercial speech falls within the scope of First Amendment protection likewise
I
The nub of the Court’s opinion is its reading of the line of cases following Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977):
“Abood, and the cases that follow it, did not announce a broad First Amendment right not to be compelled to provide financial support for any organization that conducts expressive activities. Rather, Abood merely recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one’s 'freedom of belief.’ ” Ante, at 471 (quoting Abood, supra, at 235).
While I certainly agree with the Court that a proper understanding of Abood is necessary for the disposition of this case (and will dwell on the scope of its holding at some length below), it seems to me that Abood appears more readily in its proper size if we begin our analysis with two more basic, principles of First Amendment law: that speech as such is subject to some level of protection unless it falls within a category, such as obscenity, placing it beyond the Amendment’s scope, and that protected speech may not be made the subject of coercion to speak or coercion to subsidize speech.
A
Even before we first recognized commercial speech protection in Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), we had stated a basic proposition of First Amendment protection, that “[a]ll
What stood against the claim of social unimportance for commercial speech was not only the consumer’s interest in receiving information, id., at 763-764, but the commercial speaker’s own economic interest in promoting his wares. “[W]e may assume that the advertiser’s interest is a purely economic one. That hardly disqualifies him from protection under the First Amendment.” Id., at 762. Indeed, so long as self-interest in providing a supply is as legitimate as the self-interest underlying an informed demand, the law could hardly treat the advertiser’s economic stake as “utterly without redeeming social importance” and isolate the consumer’s interest as the exclusive touchstone of commercial speech protection.
Nor is the advertiser’s legitimate interest one-dimensional. While the value of a truthful representation of the product offered is central, advertising’s persuasive function is cognizable, too. Like most advertising meant to stimulate demand, the promotions for California fruit at issue here do more than merely provide objective information about a product’s availability or price; they exploit all the symbolic and emotional techniques of any modern ad campaign with messages often far removed from simple proposals to sell fruit.
B
Since commercial speech is not subject to any categorical exclusion from First Amendment protection, and indeed is
As a familiar corollary to the principle that what may not be suppressed may not be coerced, we have recognized (thus far, outside the context of commercial speech) that individuals have a First Amendment interest in freedom from compulsion to subsidize speech and other expressive activities
C
The Court recognizes the centrality of the Abood line of authority for resolving today’s case, but draws the wrong conclusions from it. • Since Abood struck down the mandatory “service fee” only insofar as it funded the union’s expression of support for “ideological causes not germane to its duties as collective-bargaining representative,” 431 U. S., at 235; see also id., at 232, the Court reads Abood for the proposition that the First Amendment places no limits on government’s power to force one individual to pay for another’s speech, except when the speech in question both is ideological or political in character and is not germane to an otherwise lawful regulatory program. Ante, at 471-473.
rH
The Courts first mistaken conclusion lies in treating Abood as permitting any enforced subsidy for speech that is germane to permissible economic regulation, in the sense that it relates to the subject matter of the regulation and
Decisions postdating Abood have made clear, however, that its limited sanction for laws affecting First Amendment interests may not be expanded to cover every imposition that is in some way “germane” to a regulatory program in the sense of relating sympathetically to it. Rather, to survive scrutiny under Abood, a mandatory fee must not only be germane to some otherwise legitimate regulatory scheme; it must also be justified by vital policy interests of the government and not add significantly to the burdening of free speech inherent in achieving those interests. Lehnert v. Ferris Faculty Assn., 500 U. S., at 519; accord, Ellis, supra, at 456.
Thus, in Lehnert eight Justices concluded that a teachers’ union could not constitutionally charge objecting employees for a public relations campaign meant to raise the esteem for teachers in the public mind and so increase the public’s willingness to pay for public education. See 500 U. S., at 528-529 (plurality opinion); id., at 559 (Scalia, J., concurring in judgment in part and dissenting in part). “Expression of this kind extends beyond the negotiation and grievance-resolution contexts and imposes a substantially greater burden upon First Amendment rights than do [collective-
The Court’s second misemployment of Abood and its successors is its reliance on them for the proposition that when government neither forbids speech nor attributes it to an objector, it may compel subsidization for any objectionable message that is not political or ideological. But this, of course, is entirely at odds with the principle that speech significant enough to be protected at some level is outside the government’s power to coerce or to support by mandatory subsidy without further justification. Supra, at 480-483. Since a commercial speaker (who does not mislead) may generally promote commerce as he sees fit, the government requires some justification (such as its necessity for otherwise valid regulation) before it may force him to subsidize commercial speech to which he objects. While it is perfectly true that cases like Abood and Keller did involve political or ideological speech, and the Court made reference to that character in explaining the gravity of the First Amendment interests at stake, nothing in those cases suggests that government has free rein to compel funding of nonpolitical speech (which might include art,
3
An apparent third ground for the Court’s conclusion that the First Amendment is not implicated here is its assumption that respondents do not disagree with the advertisements they object to subsidizing. See ante, at 470, 471. But this assumption is doubtful and would be beside the point even if true. As the Court itself notes, ante, at 467-468, and n. 11, respondents do claim to disagree with the messages of some promotions they are being forced to fund: some of the ads promote specific varieties of plums, peaches, and nectarines marketed by respondents’ competitors but not by respondents; other ads characterize California tree fruits as a generic and thus fungible commodity, whereas respondents believe that their produce is superior to most grown in California. While these points of disagreement may seem trivial to the Court, they in fact relate directly to a vendor’s recognized First Amendment interest in touting his wares as he sees fit, so long as he does not mislead. Supra, at 479. Whether the “central message,” ante, at 470, of the generic advertising is that all California peaches, plums, and nectarines are equally good, or that only the varieties and characteristics featured in the advertisements are desirable, respondents do indeed disagree with that message.
In any event, the requirement of disagreement finds no legal warrant in our compelled-speeeh cases. In Riley, for example, we held that the free-speech rights of charitable solicitors were infringed by a law compelling statements of fact with which the objectors could not, and did not profess to, disagree. See 487 U. S., at 797-798. See also Hurley,
D
The Secretary of Agriculture has a further argument for minimizing or eliminating scrutiny of this subsidization mandate, which deserves some mention even though the Court does not adopt it. The Secretary calls for lesser scrutiny of forced payments for truthful advertising and promotion than for restrictions on commercial speech, on the ground that the effect of compelled funding is to increase the sum of information to the consuming public. This argument rests, how
Although not cited by the Secretary, the closest pass at authority for his limited rationale of commercial speech protection is Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985), our only examination of a commercial speech mandate before today. The state law there required disclosures about the method of calculating a contingent fee when legal representation on that basis was advertised. In speaking of the objecting lawyer’s comparatively modest interest in challenging the state requirement, we referred to protection of commercial speech as “justified principally by the value to consumers of the information such speech provides . . . .” Id., at 651 (citation omitted); see also Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 765, 770; Rubin v. Coors Brewing Co., 514 U. S., at 481. But this proposition will not bear the weight of the Government’s position. We said “principally,” not exclusively, and proceeded to uphold the state requirement not because a regulation adding to public information is immune from scrutiny, but because the mandate at issue bore a reasonable relation to the “State’s interest in preventing deception of consumers,” 471 U. S., at 651, who might otherwise be ignorant of the real terms on which the advertiser intended to do business. Zauderer thereby reaffirmed a longstanding preference for disclosure requirements over outright bans, as more narrowly tailored cures for the potential of commercial messages to mislead by saying too little. See id., at 651-652, n. 14; see also Hurley, supra, at 573; Riley, supra, at 796, n. 9; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447
HH
For the reasons discussed above, none of the Court’s grounds suffices for discounting respondents’ interests in expression here and treating these compelled advertising schemes as regulations of purely economic conduct instead of commercial speech. I would therefore adhere to the principle laid down in our compelled-speech cases: laws requiring an individual to engage in or pay for expressive activities are reviewed under the same standard that applies to laws prohibiting one from engaging in or paying for such activities. Under the test for commercial speech, the law may be held constitutional only if (1) the interest being pursued by the government is substantial, and (2) the regulation directly advances that interest and (3) is narrowly tailored to serve it. Central Hudson, supra, at 566.
A
The express purposes of the Agricultural Marketing Agreement Act of 1937 (AMAA or Act), 7 U. S. C. § 601 et seq., including the advertising programs established under it, are to stabilize markets for covered agricultural products and maintain the prices received by farmers. §§ 602(1), (4); see also Federal Agriculture Improvement and Reform Act of 1996 (FAIR Act) §§ 501(b)(1), (3), Pub. L. 104-127, 110 Stat. 888, 1030 (finding by Congress that the purpose of agricultural commodity promotion laws is to maintain and expand the market for covered commodities).
Of course, when government goes no further than regulating the underlying economic activity, this sort of piecemeal legislation in answer to expressions of interest by affected parties is plainly permissible, short of something so arbitrary as to fail the rational basis test. See, e. g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 487-489 (1955). But when speech is at stake, the government fails to carry its burden of showing a substantial interest when it does nothing more than refer to a “consensus” within a limited interest group that wants the regulation. Instead, the erratic pattern of regulation itself places the reality of any public or governmental interest in question, and a correlation with nothing more than the priorities of particular interest groups gives no reassuring answer.
The oddity is most pronounced in the instance of peaches, since the statute itself authorizes forced advertising only in marketing orders for “California-grown peaches,” not in orders for peaches grown anywhere else in the country. § 608c(6)(I). Although California is the biggest peach-growing State, more than 30 others also grow peaches commercially and together typically account for about half of the
The Secretary makes no attempt to explain how the Act’s geographical scope restrictions relate to the asserted goals of the advertising programs. The general restriction of marketing orders to the smallest practicable area has been part of the Act since it became law, long before Congress permitted compelled advertising, the authorization for which was simply grafted onto the existing Act as a convenient vehicle for the funding schemes. See n. 9, supra; see also S. Rep. No. 92-295, supra, at 2 (letter from Department of Agriculture indicating that the AMAA “could provide the facility for” financing commodity advertising programs).
B
Even if the Secretary could establish a sufficiently substantial interest, he would need also to show how the compelled advertising programs directly advance that interest, that is, how the schemes actually contribute to stabilizing agricultural markets and maintaining farm income by stimulating consumer demand. To show this required causation, the Secretary relies on cases concerning governmental bans on particular advertising content, where we have accepted the unremarkable presumption that advertising actually works to increase consumer demand, so that limiting adver
For this purpose, the Secretary correctly notes that the effectiveness of the Government’s regulation must be viewed overall, considering the market behavior of growers and handlers generally, not just in its isolated application to one or a few individuals such as respondents. Edge Broadcasting, supra, at 427. The Secretary therefore argues that though respondents have voiced the desire to do more individual advertising if the system of mandatory assessments were ended, other handlers who benefit from the Government’s
C
Finally, a regulation of commercial speech must be narrowly tailored to achieving the government’s interests; there must be a “ ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends, — a fit . . . that represents not necessarily the single best disposition but one whose
The Secretary contends, however, that the purpose of individual “branded” advertising is to increase the market share of a single handler, and so is at odds with the purpose of the Government’s mandatory program, which is to expand the overall size of the market through the use of “generic” advertising for a commodity generally. See also FAIR Act §§ 501(b)(6), (7), 110 Stat. 1030-1031 (congressional finding of same). Perhaps so, but that does not tell us what to make of the credit for, say, private raisin advertising. It would be hard to imagine more effectively “branded” advertising than promotions for Sun-Maid raisins, but the statute would allow Sun-Maid a credit. Why would that be consistent with the Government’s generic objective, but a credit for respondents’ nectarine ads not be? The Government gives us no answer. Without some further explanation, the statute on raisin ad
I acknowledge that in implementing a credit program for individual advertising in an otherwise valid compulsory program, the Government would need substantial leeway in determining whether such expenditures do in fact further the goal of expanding markets generally. But where, as here, no particular evaluation has been made, and the statute dealing with other fruit apparently assumes that some private advertising does serve the common good, and everything else is left to assertion, there could be no finding that a program completely denying credits for all individual advertis
‡ * ‡
Although the government’s obligation is not a heavy one in Central Hudson and the cases that follow it, we have understood it to call for some showing beyond plausibility, and there has been none here. I would accordingly affirm the judgment of the Ninth Circuit.
Thus, commercial advertising generally and these programs in particular involve messages that go well beyond the ideal type of pure commercial speech hypothesized in Virginia Bd. of Pharmacy, which would do “ ‘no
The Secretary of Agriculture does not argue that the advertisements at issue represent so-called “government speech,” with respect to which the Government may have greater latitude in selecting content than otherwise permissible under the First Amendment, see Keller v. State Bar of Cal., 496 U. S. 1, 10-13 (1990); Abood v. Detroit Bd. of Ed., 431 U. S. 209, 259, n. 13 (1977) (Powell, J., concurring in judgment). See Brief for Petitioner 25, n. 16 (waiving argument).
That is, the Court appears to hold that a compelled subsidy of speech does not implicate the First Amendment if the speech either is germane to an otherwise permissible regulatory scheme or is nonideological, so that each of these characteristics constitutes an independent, sufficient criterion for upholding the subsidy. See, e. g., ante, at 473 (“[The Abood] test is clearly satisfied in this ease because (1) the generic advertising of California peaches and nectarines is unquestionably germane to the purposes of the marketing orders and, (2) in any event, the assessments are not used to fund ideological activities” (emphasis added)).
The Court purports to find support for its more permissive reading of the Abood “germaneness test” in a separate holding of Lehnert allowing mandatory charges for portions of the union’s internal newsletter, the Teachers’ Voice, that concerned ‘“teaching and education generally, professional development, unemployment, job opportunities, award programs ..., and other miscellaneous matters.’ ” Ante, at 473 (quoting Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 529 (1991)). But the Lehnert Court noted that these communications, though plainly speech, were not “public in nature,” ibid.; the Teachers’ Voice was the union’s means of communicating with its members, not the public at large, see Lehnert v. Ferris Faculty Assn.-MEA-NEA, 643 F. Supp. 1306, 1328 (WD Mich. 1986), aff’d, 881 F. 2d 1388 (CA6 1989), aff’d in part and rev’d in part on other grounds, 500 U. S. 507 (1991). In upholding charges for this type of internal communication, Lehnert simply followed our earlier decision in Ellis v. Railway Clerks, 466 U. S. 435 (1984), in which we reasoned that “[t]he union must have a channel for communicating with the employees, including the objecting ones, about its activities. [The union surely may] charge objecting employees for reporting to them about those activities it can charge them for doing.” Id., at 450-451. In other words, this type of internal communication about chargeable activities, unlike the public advertising campaign struck down in Lehnert, was necessary to the union’s role as collective-bargaining agent and imposed no greater burden on the em
Cf. Schad v. Mount Ephraim, 452 U. S. 61, 65 (1981) (“Entertainment, as .well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee”).
Contrary to some arguments offered by respondents, these advertising schemes are not removed from the commercial category on the grounds that they are content based, producing not mere “dissemination of ‘purely factual and uneontroversial information,’ ” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995) (quoting Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985)), but controversial and ideological messages, and even objectionable sexual imagery. Regulation of commercial speech necessarily turns on some assessment of content, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 761 (1976), yet that fact has never been thought sufficient to require a standard of strict scrutiny. And we have consistently held that advertising does not automatically lose its character as commercial speech simply because it may do much more than propose a transaction or disseminate purely factual information. See, e. g., Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 473-475 (1989); Bolger v. Youngs Drug Products
A subtitle of the FAIR Act, which was enacted on April 4,1996, authorizes promotion and advertising orders for any agricultural commodity. Its procedural mechanisms are similar to those put in place by the AMAA, although there is one noticeable difference (other than breadth of coverage) between the two laws: orders issued under the FAIR Act, unlike those under the AMAA, must be national in scope. FAIR Act §§ 511-526, 110 Stat. 1032-1048. The FAIR Act does not, however, affect or pre-empt any other federal or state law, such as the. AMAA, authorizing promotion or research relating to an agricultural commodity. § 524, id., at 1047. The FAIR Act also includes new findings in support of “commodity promotion laws,” including the advertising provisions of the AMAA. § 501, id., at 1029.
Section 608e(6)(I) currently provides that marketing orders may include terms “[establishing or providing for the establishment of production research, marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption or efficient production of any such commodity or product, the expense of such projects to be paid from funds collected pursuant to the marketing order: Provided, That with respect to orders applicable to almonds, filberts (otherwise known as hazelnuts), California-grown peaches, cherries, papayas, carrots, citrus fruits, onions, Tokay grapes, pears, dates, plums, nectarines, celery, sweet corn, limes, olives, pecans, eggs, avocados, apples, raisins, walnuts, tomatoes, or Florida-grown strawberries, such projects may provide for any form of marketing promotion including paid advertising and with respect to almonds, filberts (otherwise known as hazelnuts), raisins, walnuts, olives, and Florida Indian River grapefruit may provide for crediting the pro rata expense assessment obligations of a handler with all or any portion of his direct expenditures for such marketing promotion including paid advertising as may be authorized by the order . .. .”
The substantive terms of marketing orders under the AMAA as originally enacted were generally limited to restrictions on the total marketable quantity of the commodity, allocations among handlers, disposition of surplus quantities, and maintenance of reserve supplies. 7 U. S. C. § 608c(6) (1934 ed., Supp. III). For the first time in 1954, Congress permitted marketing orders to establish “marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption [of a] commodity or product, the expense of such projects to be paid from funds collected pursuant to the marketing order.” 68 Stat. 906; 7 U. S. C. § 608c(6)(I). Since then, Congress has repeatedly amended the Act to authorize, but only for specified commodities, “any form of marketing promotion including paid advertising.” Ibid. The first such amendment, in 1962, allowed advertising programs for cherries, Pub. L. 87-703, 76 Stat. 632; similar schemes for plums and nectarines followed in 1965, Pub. L. 89-330, 79 Stat. 1270, and for “California-grown peaches” in 1971, Pub. L. 92-120, 85 Stat. 340; and today, various authorizations cover the 25 commodities listed in § 608c(6)(I). The Act now also permits crediting some or all of a handler’s independent expenditures for advertising against his assessment obligations with respect to six commodities (but not nectarines, plums, or peaches). Ibid.
A possible exception is the proposed rulemaking for nectarines, which refers to the relative unfamiliarity of the consuming public with nectarines, due in part to the fact that new varieties that could be marketed nationally had only recently been developed. See 31 Fed. Reg. 5635, 5636 (1966). This solitary finding does not cure the other defects of the statutory scheme, however.
This does not mean that taking the views of the industry into account in itself renders a program suspect. Both the AMAA and the more general authorization of compelled agricultural advertising programs recently enacted as part of the FAIR Act require orders implementing such programs to be approved by producers and/or handlers in periodic referenda. See 7 U.S. C. §§ 608c(8)(A), (B), (9)(B)(i), (16), (19); FAIR Act § 518, 110
While plum and nectarine production is more highly concentrated in California, see U. S. Dept. of Agriculture, Agricultural Statistics, 1995-96, pp. V-21, V-27 to V-28 (Tables 288, 304-308), the AMAA’s requirement that marketing orders cover the smallest geographical area practicable still lacks any reasonable connection to the asserted purposes of the advertising programs instituted thereunder.
Although they do not apply the Central Hudson test, the majority does criticize the Court of Appeals’ application of it as “illogical” insofar as that court enquired whether collective advertising or purely private advertising is more effective at stabilizing markets, because the Act’s basic policy is to achieve its economic goals by compelling cooperation in lieu of independent, competitive decisionmaking. Ante, at 474-475. But the extent to which the Act eliminates competition varies among different marketing orders, and the spottiness of collective advertising schemes under the Act demonstrates that there is no necessary connection between some compelled economic cooperation and forced collective advertising. There is thus nothing “illogical” in comparing the effectiveness of collective and private advertising schemes in the context of the marketing order regime.
While even on the cost-shifting scenario the Government would have reduced the “problem” of free riders referred to by the Secretary, that would not be a sufficient freestanding justification for the program. “[Pjrivate speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for,” Lehnert v. Ferris Faculty Assn., 500 U. S., at 556 (Scalia, J., concurring in judgment in part and dissenting in part). We have never sustained a restriction on speech solely because some individuals would ride free on the private speech of others, but only when the free-rider problem arises in serving other substantial governmental interests.
The Secretary also maintains that credit programs are appropriate for market conditions specific to the almond industry, where a single producer cooperative has a 92% share of the market for direct sales to consumers, see Cal-Almond, Inc. v. United States Dept. of Agriculture, 14 F. 3d 429, 438, n. 9 (CA9 1993), because in such circumstances “certain types of individual and brand advertising may accomplish the government’s goals of market stability and increased consumption without creating a significant free-rider problem.” Brief for Petitioner 47. As with the Secretary’s other proffered justifications for the seemingly arbitrary choices made in the AMAA provisions concerning advertising, this explanation rests on nothing more than an unsubstantiated assertion, here about the effects of brand advertising. Moreover, the legislative and regulatory history provides no indication that this was the reason for permitting credits for almonds, but not plums, nectarines, or California-grown peaches. To the * extent the record says anything, it seems to say quite the contrary of what the Secretary claims. See S. Rep. No. 91-1204, p. 2 (1970) (incorporating letter from Almond Growers Council noting that credit provision for almonds “will be model legislation for other commodities”); 37 Fed. Reg. 3983 .(1972). The Secretary’s explanation only leads one to wonder about filberts, for example; is their production, too, under the domination of a large cooperative? Is the grapefruit market structured in a way that renders virtually generic the brand-specific advertising for the Indian River crop?
Dissenting Opinion
with whom Justice Scalia joins as to Part II, dissenting.
I
I join Justice Souter’s dissent, with the exception of Part II. My join is thus limited because I continue to disagree with the use of the Central Hudson balancing test and the discounted weight given to commercial speech generally. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 518-528 (1996) (Thomas, J., concurring in part .and concurring in judgment) (criticizing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447 U. S. 557 (1980)). Because the regulation at issue here fails even the more lenient Central Hudson test, however, it, a fortiori, would fail the higher standard that should be applied to all speech, whether commercial or not.
II
I write separately to note my disagreement with the majority’s conclusion that coerced funding of advertising by others does not involve “speech” at all and does not even raise a First Amendment “issue.” See ante, at 469-474. It is one thing to differ about whether a particular regulation involves an “abridgment” of the freedom of speech, but it is entirely another matter — and a complete repudiation of our precedent — for the majority to deny that “speech” is even at issue in this case.
See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447 U. S. 557 (1980) (advertising to promote the use of electricity is speech); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) (corporate advertising regarding referendum); Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977) (per curiam) (payment of dues used to engage in speech); Buckley v. Valeo, 424 U. S. 1 (1976) (contributions for political advertising). 2
See Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997) (coerced carriage of broadcast signals over cable television facilities); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1 (1986) (coerced inclusion of private messages in utility bill envelopes); PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980) (coerced creation of a speaker’s forum on private property); Abood v. Detroit Bd. of Ed., supra (coerced payment of dues used to engage in speech); Wooley v. Maynard, 430 U. S. 705 (1977) (coerced display of state license plate); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974) (coerced right of reply to newspaper editorials); Wesf Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) (coerced Pledge of Allegiance).
The majority’s grounds for distinguishing certain of our precedents are, to say the least, unpersuasive and contradictory, as Justice Souter’s dissent amply demonstrates. Moreover, the majority’s excessive emphasis on the supposed collectivization of the fruit industry, ante, at 469, 474-477, likewise fails to support its conclusion. Although the Constitution
See United States v. O’Brien, 391 U. S. 367 (1968) (draft card burning); Texas v. Johnson, 491 U. S. 397 (1989) (flag burning); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969) (armbands); Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) (prohibition on sleeping in park raises First Amendment issues); Schad v. Mount Ephraim, 452 U. S. 61 (1981) (nude dancing).
Reference
- Full Case Name
- GLICKMAN, SECRETARY OF AGRICULTURE v. WILEMAN BROTHERS & ELLIOTT, INC., Et Al.
- Cited By
- 179 cases
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- Published