The end of compelled contributions for subsidized advertising?

• Author: Schoenhard, Paul M.

THE END OF COMPELLED CONTRIBUTIONS FOR SUBSIDIZED ADVERTISING?: United States v. United Foods, 533 U.S. 405 (2001).

1. INTRODUCTION

   Until the Supreme Court's opinion in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., (1) commercial speech was not treated as a distinct category within First Amendment free speech jurisprudence. (2) That commercial speech should be granted lesser protection is a murky concept, supported by a tenuous balancing act between public and private interests. The marketing of goods produced in regulated industries is a prime breeding ground for this clash of public interests (the government's regulation) and private interests (freedom of speech and action). When the federal or state government thus compels contributions for subsidized industry-wide advertising, the result is complaints of forced commercial speech in contravention of the First Amendment. (3)

   Seemingly, this issue was laid to rest in Glickman v. Wileman Brothers & Elliot, Inc., (4) in which a divided Supreme Court held that compelled contributions of this sort do not violate the Constitution? Last year, however, only four years after Glickman, in United States v. United Foods, (6) the Court held that in an otherwise unregulated industry, compelled contributions for subsidized advertising are unconstitutional. (7) Despite this apparent departure, rather than overturn their decision in Glickman, the Court chose to distinguish Glickman and cabin its earlier holding. (8) As a result, instead of clarifying or broadening the scope of protection for commercial speech under the First Amendment, United Foods further clouds the waters of constitutional law.

2. A BRIEF REVIEW OF GLICKMAN

   Four years ago, in a case factually similar to United Foods, the Supreme Court decided that no First Amendment issues were raised in Glickman v. Wileman Bros. & Elliot, Inc. (9) Glickman involved a First Amendment challenge to compelled contributions for generic advertising by California fruit growers. (10) Writing for the Court, Justice Stevens determined that "criticisms of generic advertising provide no basis for concluding that factually accurate advertising constitutes an abridgement of anybody's right to speak freely." (11) Because of the close connection between the legal questions addressed in Glickman and United Foods, it will be useful to review the Glickman Court's arguments.

   Justice Stevens posited the legal question in Glickman as "whether being compelled to fund this [collectivized] 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." (12) Already, this formulation of the question indicated the Court's conclusion that in certain contexts commercial speech receives no consideration under the First Amendment. With this mentality, it was easy for Justice Stevens to restrict the precedential value of the Court's earlier commercial speech cases to their specific fact patterns. Granting the government's regulatory scheme a presumption of validity, Justice Stevens argued:

   First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views. (13) Justice Stevens used these distinctions to distinguish Glickman from the Court's previous First Amendment decisions. (14) In particular, the Court considered the precedent set in Abood v. Detroit Board of Education, (15) a political speech case in which the Court invalidated a union requirement that teachers subsidize speech with which they disagreed. (16) Referring again to the generic nature of the collectivized advertising implicated in Glickman, however, Justice Stevens concluded that "[n]either 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." (17) With all the Court's precedent neatly swept aside, (18) Justice Stevens placed the final nail in the coffin: "[a]lthough one may indeed question the wisdom of such a program, its debatable features are insufficient to warrant special First Amendment scrutiny." (19) After Glickman, the First Amendment was no longer a protection of all speech, as limited only by a few specific exceptions, but instead a protection of a few specific classes of speech.

   The Glickman decision was, however, by no means unanimous. Rather, Justice Stevens's opinion is followed by a lengthy dissent by Justice Souter, (20) which was joined by the Chief Justice and Justices Scalia and Thomas, and a brief additional dissent by Justice Thomas, (21) which was joined again by Justice Scalia. These dissents questioned the majority's understanding of First Amendment jurisprudence generally and their application of Abood and other precedents specifically. In contrast to the conclusions drawn by and from Justice Stevens's majority opinion, Justice Souter started his analysis with the premise "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." (22) It was to this same divided Court that United Foods was presented four years later.

3. FACTS AND PROCEDURAL HISTORY OF UNITED FOODS

   1. Background to the Case

      Congress enacted the Mushroom Promotion, Research, and Consumer Information Act (the "Mushroom Act" or the "Act") (23) in 1990 with a goal of "maintaining and expanding existing markets and uses of mushrooms." (24) This vague purpose was bolstered by even more vague desires to improve Americans' eating habits and benefit the environment. Operating with the power of these noble goals and fearing free-rider problems, the Mushroom Act authorizes the Secretary of Agriculture to create the Mushroom Council to pursue these ends. (25) The Act then allows the Council to fund its efforts by imposing assessments on mushroom growers. (26) These monies are spent on generic mushroom advertising. (27)

      In 1996, United Foods, a large, Tennessee-based agricultural enterprise, refused to pay its mandatory assessments under the Mushroom Act. Instead, arguing that the forced subsidization of advertising violated the First Amendment, United Foods filed a petition with the Secretary of Agriculture. This matter and the United States's subsequent action in district court were stayed pending the Supreme Court's decision in Glickman. After the Glickman decision was announced, United Foods's petition was rejected, and the district court upheld the Act and the government's ability to compel payments into the program. (28) United Foods appealed.

   2. The Appeal

      On appeal, the Sixth Circuit reversed the judgment of the district court and held that (a) Glickman was not controlling; and (b) the advertising scheme in question violated United Foods' First Amendment protection against compelled speech. (29) Writing for the Sixth Circuit, Judge Merritt clarified the relevant issue:

      The issue before us is whether the answer to the First Amendment question presented here should be the same as in the recent case of Glickman v. Wileman Bros. & Elliot, Inc. ... in which the Supreme Court in a controversial 5-4 decision upheld a similar agricultural advertising program in the heavily regulated California tree fruits business (peaches, plums and nectarines). (30) This formulation identifies the Sixth Circuit Court's hesitancy to grant Glickman precedential effect and its acceptance that in United Foods there is a First Amendment question. Judge Merritt further distilled the question to "whether the degree of government regulation of an industry controls the outcome or whether the government is right that...