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Supreme 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:

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 very well.

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 will.

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 groups.

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 speech.

The Supremes will be hearing another commercial speech case next week involving the tobacco industry and restrictions on outdoor and indoor advertising in Massachusetts.

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