Court Finds Mandatory Ad Campaign Unconstitutional
the long-awaited decision in United
v. United Foods, Inc., the Supreme
Court took significant strides in undoing some of the damage caused
by its much-criticized 1997 decision in Glickman v. Wileman
Brothers & Elliot. In scoring a victory for the First Amendment,
The Court held, in an opinion by Justice Kennedy, that a federal
statute requiring mushroom growers to pay for generic advertisements
to promote mushrooms violated the First Amendment by compelling
support for speech with which at least some of the growers disagreed.
The Court distinguished the earlier Glickman case, which
had involved generic advertising for tree-fruits, because the mushroom
program involved nothing more than compelled speech, whereas the
tree-fruit program was claimed and assumed to be part of a broader
regulatory program that had collectivized the fruit market in numerous
Center for Individual Freedom had come out in support of the mushroom
growers and the First Amendment in this case and filed an
curiae brief in the Supreme Court. To the
Centers gratification, many of the arguments made in that
amicus brief appear to have been well-received by the Court.
For example, when interpreting a line of cases allowing compelled
speech that was "germane" to other programs that compelled
collective economic action for example, unions or bar associations
the Center argued:
"germaneness" test requires far more than mere
circular relation between a speech compulsion and the motivation
for its imposition. Instead, a speech compulsion must be
"germane" not to itself, but rather to the accomplishment
of some other action that Congress has properly required.
* * * Amicus suggests that it would be appropriate
to clarify that test and confirm that the germaneness of
compelled support for speech must be measured against some
underlying compelled conduct that cannot be accomplished
without a certain amount of speech incidental to that conduct.
Center went on to criticize "the empty test proposed by the
government" for misidentifying "the object of the
[germaneness] test" as being the general government purpose
motivating the compelled support for speech, rather than some primary
compelled collective activity. "But that test is meaningless,"
the Center wrote, "would fully eviscerate the germaneness requirement,"
and could not be reconciled with the results in prior cases.
to accept the Centers suggestion for clarification, the Court
rejected the Governments attempts to avoid the earlier labor
union and bar association cases. Discussing a case involving forced
support for labor unions, Justice Kennedy wrote that, even for non-ideological
speech, the "threshold inquiry must be whether there is some
state imposed obligation which makes group membership less than
voluntary; for it is only the overriding associational purpose which
allows any compelled subsidy for speech in the first place."
Turning to the bar association case, Justice Kennedy similarly wrote:
who were required to pay a subsidy for the speech of the
association already were required to associate for other
purposes, making the compelled contribution of monies to
pay for expressive activities a necessary incident of a
larger expenditure for an otherwise proper goal requiring
this clarified rule, the Court rejected the Governments defense
of the mushroom advertising program, noting that "[w]e have
not upheld compelled subsidies for speech in the context of a program
where the principle object is speech itself. * * * The only program
the Government contends the compelled contributions serve is the
very advertising scheme in question. Were it sufficient to say that
speech is germane to itself, the limits observed in [the union and
bar cases] would be empty of meaning and significance." The
Court thus held that the bare compulsion of support for speech violated
the First Amendment.
Stevens and Justice Thomas each filed a short separate concurrence
clarifying, in the case of Justice Stevens, the difference between
this case and Glickman, and, in the case of Justice Thomas,
his view that commercial speech deserved full first amendment protection.
Breyer dissented in an opinion joined by Justice Ginsburg and joined
in part by Justice OConnor. The dissent relied on certain
language in Glickman that could indeed be taken to suggest
a different result in this case, and questioned significance of
conduct regulation as a justification for the regulation of speech.
The dissent further disputed the applicability of the union and
bar association cases, arguing that they were limited to compelled
support for speech that engendered a crisis of conscience, not merely
a disagreement over message. Additionally, in a section not joined
be Justice OConnor, the dissent claimed that the compelled
support for advertising id not involve speech at all and, even if
it did, it required dissemination of valuable commercial speech
and thus should be favored rather than rejected. Finally, the dissent
claimed that the speech compulsion should be evaluated as a restriction
on commercial speech and, under the test applied to such speech,
the restriction would survive.
the dissent certainly had a plausible reading of Glickman,
it is a reading that would have rendered Glickman absurd
on its own terms and which indeed occasioned much of the criticism
of that earlier decision. The dissent thus would have enshrined
the worst conceivable interpretation of Glickman and done
great damage to First Amendment jurisprudence across the board.
The majority (which included the author of the Glickman decision,
Justice Stevens), to its credit, stepped back from some of the less
measured language in Glickman that was not necessary to the
result in that earlier case. To the extent that there remains any
tension between Glickman and United Foods,
it is ultimately the remaining errors of the Glickman decision
that are responsible for such tension. With luck, Glickman
will be treated as sui generis and thus effectively
quarantined and prevented from infecting other aspects of First
Amendment jurisprudence. United Foods is a good sign
that the Court is headed in that direction.
read the Supreme Courts decision, click
read the Centers amicus curiae, click
to Legal Archive 2001