Court Hears Oral Arguments In Commercial Speech Case
What follows is the Center's first-hand account of the April 17
oral arguments in United States v. United Foods, Inc. The Center
filed an amicus brief in this case, for a copy, click on: www.cfif.org/legal_current.htm
As we were leaving the Supreme Court yesterday a bewildered looking
tourist asked us if our noble Supreme Court was really concerning
itself with the mundane issue of mushroom advertising.
The answer is "yes." The reason, of course, goes much deeper....
For the past dozen or so years, the Agriculture Department has been
requiring mushroom growers to contribute to an advertising campaign
that urges Americans to eat more mushrooms.
However, to at least one mushroom grower, United Foods, Inc., this
program is in direct violation of compelled speech doctrine under
the First Amendment to the U.S. Constitution. And as such, the company
has refused to pay the "tax" since 1996.
Arguing for United Foods was the ubiquitous Professor Laurence Tribe.
Arguing for the Agriculture Department was assistant solicitor general
Barbara B. McDowell. In our humble opinion, both acquitted themselves
The Court peppered both sides with questions regarding the fine
line between permissible economic programs aimed at giving certain
commodities a boost, and forcing companies to speak (or pay for
generic advertising in this case) against their
In a lighter moment, at least one justice, Antonin Scalia, seemed
rather amused at why Congress is so concerned specifically with
mushrooms, while leaving certain other fruits and vegetables out
in the cold. Chief Justice Rehnquist joked that there must be a
"mushroom caucus" on the Hill. Justice Scalia, known for his quick
wit, fired back that it must then be "subterranean."
Once the laughter subsided, Professor Tribe explained how his client,
the mushroom producer, objected to having to pay for generic advertising
that he disagreed with, namely that all mushrooms are equal and
brand doesn't matter.
The government relied on a recent 5-4 decision (Glickman v. Wileman)
in which the Supremes upheld a similar advertising program for the
growers of California peaches, plums and nectarines. Ms. McDowell
argued that the mushroom program is also constitutional, as it serves
the same "non-speech" purpose of strengthening the market for the
whole mushroom industry.
"Not in their [United Foods] view," replied Justice Scalia.
McDowell then argued that the government's speech in this matter
is purely economic and not ideological. That set off a number of
questions on how to define ideology and led to perhaps the biggest
chuckle of the morning when Justice Scalia said, "suppose that I
belonged to the People for the Ethical Treatment of Mushrooms...and
I grow mushrooms to make me happy, not to eat them? Is that ideological?"
Professor Tribe closed with the argument that true government speech
should be funded from general revenue and not assessed to targeted
The Center's amicus brief argued that the mushroom program is a
violation of the First Amendment of the U.S. Constitution. The Center
also argued that if the Supreme Court were to view this case as
involving the government's own speech, the appropriate First Amendment
test should remain the same as applied to other forms of compelled
The Supremes will be hearing another commercial speech case next
week involving the tobacco industry and restrictions on outdoor
and indoor advertising in Massachusetts.
to Legal Archive 2001