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Supreme Court Finds Mandatory Ad Campaign Unconstitutional

In the long-awaited decision in United States 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 ways.

The Center for Individual Freedom had come out in support of the mushroom growers and the First Amendment in this case and filed an amicus curiae brief in the Supreme Court. To the Center’s 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:

[T]he "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.

The 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.

Seeming to accept the Center’s suggestion for clarification, the Court rejected the Government’s 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:

Those 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 cooperative activity.

Applying this clarified rule, the Court rejected the Government’s 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.

Justice 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.

Justice Breyer dissented in an opinion joined by Justice Ginsburg and joined in part by Justice O’Connor. 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 O’Connor, 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.

While 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.


To read the Supreme Court’s decision, click here.

To read the Center’s amicus curiae, click here:


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