Free Speech for Mushrooms but Not Peaches: Economic Regulations After United Foods, Inc

• Jurisdiction: United States,Federal
• Citation: Vol. 31 No. 4 Pg. 61
• Pages: 61
• Publication year: 2002

31 Colo.Law. 61 Colorado Lawyer 2002.

2002, April, Pg. 61. Free Speech for Mushrooms but Not Peaches: Economic Regulations After United Foods, Inc

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Vol. 31, No. 4, Pg. 61

The Colorado Lawyer
April 2002
Vol. 31, No. 4 [Page 61]

Specialty Law Columns
Government and Administrative Law News
Free Speech for Mushrooms but Not Peaches: Economic Regulations After United Foods, Inc.
by F. J. "Rick" Dindinger

This column provides information to attorneys dealing with various state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law

About The Author

This month's article was written by F. J ("Rick") Dindinger II, Englewood, a lawyer at Burns, Figa & Will, P.C. - (303) 796-2626.

This article analyzes a U.S. Supreme Court free-speech decision, United Foods, Inc., and discusses its import on government-sponsored advertising campaigns that promote agricultural products.

The 2001 U.S. Supreme Court decision in United States v. United Foods, Inc.1 holds that mandatory monetary assessments on handlers of fresh mushrooms for the purpose of generic advertising violates the First Amendment. This holding appears to be inconsistent with Glickman v. Wileman Bros. & Elliot, Inc.2 The 1997 Glickman decision held that mandatory assessments on growers, handlers, and processors of California fruit trees for generic advertising did not violate the First Amendment. This article analyzes these two cases and their impact on certain economic regulations, particularly in the agricultural sector, in the context of established First Amendment jurisprudence. The article then attempts to synthesize these two cases and surmise how courts might rule in the future.

Freedom of Speech:
The First Amendment

Freedom of speech often is considered a cornerstone of the First Amendment and of individual liberty. The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances.3

Justice Cardozo characterized freedom of speech as "the matrix, the indispensable condition of nearly every other form of freedom."4 Although the First Amendment's language employs absolutist terms ("Congress shall make no law . . . the freedom of speech . . ."),5 some speech generally receives less First Amendment protection, such as speech that creates "a clear and present danger,"6 defamatory speech,7 obscene speech,8 and commercial speech.9 Further, as discussed below, courts have held that the First Amendment prohibits compelled speech - and its corollary, compelled contributions to speech - except in limited circumstances.

Compelled Speech and Mandatory Assessments

The First Amendment guarantees "freedom of speech," a term "necessarily comprising the decision of both what to say and what not to say."10 For example, in Wooley v. Maynard, the U.S. Supreme Court held that the state of New Hampshire could not compel individuals to display the motto "Live Free or Die" on their automobile license plates.11 The Court observed that "[a] system which secures the right to proselytize religions, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts."12

As a corollary to this freedom not to speak, the First Amendment affords individuals certain rights protecting them from making mandatory monetary contributions for speech to which they object. In Abood v. Detroit Board of Education, a teacher challenged mandatory union dues required of all employees as a condition of employment, in part because she objected to some of the union's ideological activities.13 The U.S. Supreme Court held that the state may require a government employee to pay union dues insofar as the dues serve to finance activities "germane" to the union's core duties, such as collective bargaining, contract administration, and grievance issues.14 The Court, however, ruled that a state may not mandate financial contributions for the expression of political views on behalf of political candidates or toward the advancement of other ideological causes "not germane" to the union's duties as a collective-bargaining representative.15

Similarly, Keller v. State Bar of California held that the State Bar of California may not use mandatory bar dues to finance political and ideological causes opposed by some of its members.16 The California Bar performed a variety of functions, such as examining applications for admission to the bar, regulating attorney conduct, formulating and promulgating ethical rules, and seeking to improve procedural laws.17 In addition, the Bar engaged in various political and ideological causes by lobbying and filing certain amicus curiae briefs.18 The Court ruled that the Bar may constitutionally fund activities "germane" to the goals of regulating the legal profession and improving the quality of legal services.19 However, the California Bar may not use such funds for political causes not germane to the legal profession, such as advancing a gun control initiative or promoting an anti-nuclear weapons campaign.20

Comparison of Glickman And United Foods, Inc.

Prior to United Foods, Inc., the U.S. Supreme Court addressed mandatory monetary assessments of an agricultural commodity in Glickman.21 The Supreme Court reached...