Delano Farms Company v. California Table Grape Commiss

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DELANO FARMS COMPANY, a 

Washington corporation; THE

SUSAN NEILL COMPANY, a

California corporation; LUCAS No. 08-16233

BROS PARTNERHSHIP, a California D.C. No.

partnership,

Plaintiffs-Appellants,

 1:96-cv-06053-

OWW-DLB

v. OPINION

CALIFORNIA TABLE GRAPE

COMMISSION,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, District Judge, Presiding

Argued and Submitted

April 15, 2009—San Francisco, California

Filed November 20, 2009

Before: Stephen Reinhardt, John T. Noonan and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;

Concurrence by Judge Reinhardt

15463

DELANO FARMS v. CALIFORNIA TABLE GRAPE 15467

COUNSEL

Brian C. Leighton (argued), Clovis, California, for the appel-

lants.

Robert D. Wilkinson and Kendall L. Manock, Baker, Manock

& Jensen, Fresno, California, for the appellee.

Seth P. Waxman, Randolph D. Moss (argued), Todd C.

Zubler, Brian M. Boynton, and Amy Oberdorfer Nyberg, Wil-

mer Cutler Pickering Hale and Dorr LLP, Washington, DC,

for the appellee.

OPINION

McKEOWN, Circuit Judge:

We are again faced with the question whether a state statu-

tory scheme requiring growers to fund generic advertising for

promotion of an agricultural product violates the First

Amendment. Here, we consider the case of compelled assess-

15468 DELANO FARMS v. CALIFORNIA TABLE GRAPE

ments on California table grape1 growers, levied through the

California Table Grape Commission (the “Commission”).

Specifically, we address whether this generic advertising

scheme is the government’s own speech and is thereby

exempt from a First Amendment compelled speech challenge,

based on the Supreme Court’s analysis in Johanns v. Live-

stock Marketing Association, 544 U.S. 550 (2005), and our

decision in Paramount Land Co. LP v. California Pistachio

Commission, 491 F.3d 1003 (9th Cir. 2007). Because the

Commission’s promotional activities constitute government

speech that is immune to challenge under the First Amend-

ment, we affirm the district court’s grant of summary judg-

ment on this ground.

BACKGROUND

A. The Table Grape Commission

The Commission was established in 1967 by an act of the

California Legislature (the “Ketchum Act”), Cal. Food &

Agric. Code §§ 65500 et seq. The Legislature recognized that

“[g]rapes produced in California for fresh human consump-

tion comprise one of the major agricultural crops of Califor-

nia, and the production and marketing of such grapes affects

the economy, welfare, standard of living and health of a large

number of citizens residing in this state.” § 65500. Noting that

the “inability of individual producers to maintain or expand

present markets or to develop new or larger markets for such

grapes results in an unreasonable and unnecessary economic

waste of the agricultural wealth of this state,” the Ketchum

Act created the Commission to support the table grape indus-

1

“ ‘Fresh grapes’ also designated ‘table grapes’ means any and all varie-

ties of grapes produced in the State of California shipped for fresh human

consumption, but does not include grapes delivered to a processor for pro-

cessing or grapes processed by a processor or grapes delivered to a winery

for winemaking or grapes produced for use in the making of wine.” Cal.

Food & Agric. Code § 65523.

DELANO FARMS v. CALIFORNIA TABLE GRAPE 15469

try through centralized advertising, marketing, research, and

government relations efforts. Cal. Food & Agric. Code

§ 65572.

The Commission is governed by a regulatory scheme that

applies to all state councils and commissions that relate to

agricultural and seafood markets. Cal. Food & Agric. Code

§§ 63901-63901.3. See also Paramount Land, 491 F.3d at

1006 (explaining that California has established a regulatory

scheme that applies to many state commissions and councils).

The Commission is authorized to undertake a broad range of

activities: (1) research into production, food safety, market-

ing, trend analysis, crop protection and production materials,

(2) efforts to secure the elimination of trade barriers, (3) edu-

cational outreach about the benefits of table grape usage and

consumption, (4) enhancement of the public conception of

table grapes to increase overall demand for the product, (5)

consumer education relating to environmental protection, (6)

cooperative crisis resolution, (7) participation in negotiations

with foreign governments, and (8) industry self-regulation.

§§ 63901-63901.3, 65500, 65572. See also Paramount Land,

491 F.3d at 1006 (describing similar for California Pistachio

Commission).

The Commission’s work is funded primarily by assess-

ments imposed on all shipments of California table grapes.

Cal. Food & Agric. Code § 65604. The Commission pre-

scribes the time and method of payment and directly collects

the assessments. § 65604.

The Secretary (the “Secretary”) of the California Depart-

ment of Food and Agriculture (the “CDFA”) retains authority

over the Commission’s activities through a few key functions.

All of the commissioners are appointed and subject to

removal by the Secretary. Cal. Food & Agric. Code §§ 65550,

65575.1. Any person aggrieved by any action of the Commis-

sion may appeal to the Secretary. Cal. Food & Agric. Code

§ 65650.5. Through this appeal process, the Secretary has the

15470 DELANO FARMS v. CALIFORNIA TABLE GRAPE

power to reverse the action of the Commission. § 65650.5.

Further, “[u]pon the finding of 11 of the members of the

[C]ommission that the operation of the provisions of [the

Ketchum Act] has not tended to effectuate its declared pur-

poses,” the Commission may recommend to the Secretary that

its operation be suspended. Cal. Food & Agric. Code § 65660.

The Ketchum Act provides that the Secretary will then con-

duct a referendum among grape producers to determine if the

Commission’s operations should be suspended. § 65660.

In addition, like other entities in the state government, the

Commission is subject to transparency, auditing, and ethics

regulations that aim to promote public accountability. See e.g.

§ 65572 (detailing that the Commission must “keep accurate

books, records and accounts of all of its dealings, which

books, records and accounts shall be open to inspection and

audit by the Department of Finance of the State of California

or other state officer charged with the audit of operations of

departments of the State of California”).

B. PROCEEDINGS BELOW

A group of table grape growers, Delano Farms Company,

Lucas Brothers Partnership, and The Susan Neill Company

(collectively, “Delano Farms”), filed suit against the Commis-

sion in 1996, objecting “to being compelled by state law to

pay money for generic advertising campaigns.” Delano Farms

v. Cal. Table Grape Comm’n (“Delano Farms I”), 318 F.3d

895, 896 (9th Cir. 2003). The generic advertising to which

Delano Farms objects focuses on the idea that fresh California

table grapes are consumed primarily as a snack and are a

healthy alternative for consumers, as opposed to other snack

options like ice cream, chips, french fries, and buttered pop-

corn. The Commission popularizes this sentiment mainly

through outdoor billboards and radio commercials.

Delano Farms maintains that the Commission’s advertising

efforts harmfully equate all table grapes, by virtue of the “ge-

DELANO FARMS v. CALIFORNIA TABLE GRAPE 15471

neric” advertisements. Because the advertisements suggest

that all table grapes are fungible and of the same quality, Del-

ano Farms believes that the advertisements hurt Delano

Farms’s ability to distinguish its product from its competitors.

Delano Farms also objects to supporting efforts it finds

unnecessary or overly lavish, citing examples of travel and

benefits to the Commission’s employees, parties, and scholar-

ship funds. As a consequence of a hefty assessment—

$600,000 annually—Delano Farms argues that it has less

money to put towards its own promotional and other activi-

ties.

Delano Farms sought “a declaratory judgment that the

assessments violated their First Amendment rights, an injunc-

tion against collection, and for refunds.” Delano Farms I, 318

F.3d at 896. The district court rejected Delano Farms’s claim,

determining that the assessment scheme is constitutional.

In the growers’ first appeal Delano Farms I—we consid-

ered the district court’s decision in the context of two then-

recently decided Supreme Court cases Glickman v. Wileman

Brothers & Elliott, 521 U.S. 457 (1997), and United States v.

United Foods, Inc., 533 U.S. 405 (2001). As Delano Farms

I explains, in Glickman, the Supreme Court considered a chal-

lenge to federal marketing orders that charged an assessment

to tree fruit growers; “the Supreme Court held that the assess-

ments did not violate the First Amendment rights of the dis-

senting growers not to be forced to pay for speech in which

they preferred not to participate.” Delano Farms I, 318 F.3d

at 898 (internal citation omitted). The Court reasoned that the

generic advertising was “part of a broader collective enter-

prise in which [the growers’] freedom to act independently is

already constrained by the regulatory scheme.” Id. (quoting

Glickman, 521 U.S. at 469).

Delano Farms I noted that United Foods, a later Supreme

Court case, “went the other way.” Delano Farms I, 318 F.3d

at 898. The assessment at issue in United Foods concerned a

15472 DELANO FARMS v. CALIFORNIA TABLE GRAPE

program of compelled subsidies in the mushroom industry. Id.

(internal citation omitted). We noted in Delano Farms I that

the Supreme Court struck down the assessment scheme as

unconstitutional; because in United Foods unlike in Glick-

man, there was no such “ ‘comprehensive program,’ just a

scheme that consisted mostly of generic promotion of mush-

rooms.” Delano Farms I, 318 F.3d at 898 (internal citation

omitted).

We thus considered in Delano Farms I whether the

Ketchum Act fell “on one side or the other of the Glickman-

United Foods distinction.” Delano Farms I, 318 F.3d at 899.

On the basis of the initial pleadings, we determined that the

Ketchum Act does not collectivize the industry in the same

manner as the tree fruit order at issue in Glickman. Delano

Farms I, 318 F.3d at 899. Reasoning that the “statute [is] sim-

ilar to the one at issue in United Foods,” we revived the suit,

deeming Delano Farms “entitled to First Amendment protec-

tion against state compulsion to fund generic advertising.”

Delano Farms I, 318 F.3d at 899-900.

The parties returned to the district court and resumed litiga-

tion. On remand, the Commission amended its answer to

allege that its speech and promotional activities are govern-

ment speech and are, therefore, not susceptible to a First

Amendment challenge. The parties agreed to suspend discov-

ery when the Supreme Court granted certiorari in Johanns, a

case involving compelled assessments in the beef market. In

Johanns, the Supreme Court decided the case in favor of the

Beef Board, resting on the same theory that the Commission

had added to its answer on remand: the mandatory assess-

ments for beef promotion went to fund government speech,

and thus were immune to challenge on First Amendment

grounds. Johanns, 544 U.S. at 560-62.

Following the Supreme Court’s decision in Johanns, both

sides moved for summary judgment. The district court

granted summary judgment to the Commission on the key

DELANO FARMS v. CALIFORNIA TABLE GRAPE 15473

question in this litigation—whether the Commission’s activi-

ties are government speech such that they are insulated from

First Amendment scrutiny. The district court first held that

because the Commission is a government entity, its speech is

necessarily that of the government. In the alternative, the dis-

trict court held that the State has “effective control” over the

Commission’s message, such that under Johanns, the Com-

mission’s activities are government speech.2

ANALYSIS

[1] We now consider Delano Farms’s First Amendment

claim with the benefit of the Supreme Court’s decision in

Johanns. 544 U.S. at 553; see also Paramount Land, 491 F.3d

at 1010-12. The Commission’s activities may be classified as

government speech, unencumbered by the bounds of the First

Amendment, in either of two ways: (1) if the Commission is

itself a government entity, or (2) if the Commission’s message

is “effectively controlled” by the State, see Johanns, 544 U.S.

at 560-61. We conclude that the Commission’s activities are

government speech, taking into consideration both avenues

for classification of such speech.

I. TABLE GRAPE COMMISSION AS GOVERNMENT ENTITY

Whether the Commission, a state-created body, is a govern-

ment entity for First Amendment purposes is a question we

consider in light of the Supreme Court’s guidance in Keller v.

State Bar of California, 496 U.S. 1 (1990) and Lebron v.

National Railroad Passenger Corp., 513 U.S. 374 (1995). We

conclude that the scale tips to classifying the Commission as

a government entity.

Oddly, in its brief, Delano Farms is dismissive of govern-

2

Because we rest our decision on government speech, we do not reach

the district court’s resolution of the compelled speech challenge under

Glickman and United Foods.

15474 DELANO FARMS v. CALIFORNIA TABLE GRAPE

ment entity status as a basis for First Amendment immunity—

“The Commission and the court below relied upon the weak

fact that the Commission itself is a government entity. That’s

hardly little that matters when it comes to government

‘speech’ . . . .” According to Delano Farms, the Court in

Johanns would not have engaged in extensive discussion of

government oversight of the beef program if government

entity status were an easy resolution to the case. In Johanns,

however, the Court explicitly declined to address whether the

Operating Committee—the entity that creates the beef

messaging—was a governmental or nongovernmental entity.

See id. at 560 n.4. Instead, the Court noted that the Secretary

appoints all of the members of the Beef Board—the entity to

which assessments are remitted—and concluded that the Sec-

retary effectively controlled the Operating Committee’s mes-

saging. Id. at 560 n.4, 561-62. But, Johanns is unambiguous

that the governmental entity-nongovernmental entity dichot-

omy is relevant in a compelled subsidy challenge under the

First Amendment. See 544 U.S. at 560 n.4. Thus, the govern-

mental entity analysis remains a viable ground for determin-

ing exemption from the First Amendment. And, this case

presents a cleaner statutory scheme in which to do so because

the Commission acts, in effect, as both Beef Board and Beef

Operating Committee. In other words, all of the Ketchum Act

functions are performed by a single entity, the Commission,

whose commissioners are all appointed by the Secretary.

In Keller, the Court considered a First Amendment chal-

lenge brought by attorneys who objected to the State Bar of

California’s expenditure of mandatory dues on political and

ideological campaigns. 496 U.S. at 4. The State Bar’s first

line of defense was that it is a government actor and is thus

immune to a challenge under the First Amendment concern-

ing how it chooses to express itself. In rejecting this argu-

ment, the Court emphasized several characteristics of the

mandatory California Bar that distinguish it from a govern-

ment actor: (1) its funding comes principally from dues levied

on members rather than general appropriations; (2) its mem-

DELANO FARMS v. CALIFORNIA TABLE GRAPE 15475

bers are solely lawyers, all of whom are required to join; (3)

its role is primarily advisory (e.g. the courts are responsible

for managing admission to practice and for disciplinary

action); and (4) as opposed to government officials, who “are

expected as a part of the democratic process to represent and

to espouse the views of a majority of their constituents,” the

organization “was created, not to participate in the general

government of the State, but to provide specialized profes-

sional advice to those with the ultimate responsibility of gov-

erning the legal profession.” Id. at 11-13. In light of these

factors, the Supreme Court resolved that the State Bar is not

a governmental entity whose own speech is immune to consti-

tutional challenge. Id. at 12.

[2] If Keller alone were the law, the Commission’s argu-

ment that it is a government entity would be a tougher sell.

Like the State Bar, the Commission is funded by mandatory

private assessments, and those paying the assessments come

exclusively from a single industry. § 65604. While the Com-

mission’s role is more than merely advisory, it arguably

focuses on a particular constituency, rather than the broader

citizenry of California. Cf. R.J. Reynolds Tobacco Co. v. She-

wry, 423 F.3d 906, 918 (9th Cir. 2005) (holding that a promo-

tional campaign designed by the California Department of

Health Services and funded by an excise tax on tobacco com-

panies was “government speech,” because “[w]hen California

uses funds from the tobacco surtax to produce advertisements,

it does so in the name of all of California’s citizens,” while

the arrangement in Keller, along with entities considered in

other cases, “represent[ed] only the interests of [a] particular

entity”).

A few years after Keller, however, the Supreme Court con-

sidered another case involving the question whether an entity

should be considered to be part of the federal government for

First Amendment purposes, Lebron v. Amtrak, 513 U.S. 374.

Although Lebron also involved an inquiry into whether

Amtrak was a governmental entity, the question before the

15476 DELANO FARMS v. CALIFORNIA TABLE GRAPE

Court was very different from that at issue in Keller. In Kel-

ler, the question was whether the State Bar’s speech was gov-

ernmental speech and therefore immune from constitutional

challenge, because the government is not required to be

impartial when speaking, as long as its speech is consistent

with the Establishment and Equal Protection clauses. See

Johanns v. Livestock Marketing Assn., 544 U.S. 550, 553

(2005) (“[T]he Government’s own speech . . . is exempt from

First Amendment scrutiny”); Columbia Broadcasting System,

Inc. v. Democratic National Committee, 412 U.S. 94, 139, n.

7 (1973) (Stewart, J., concurring) (“Government is not

restrained by the First Amendment from controlling its own

expression”). Although the government’s own speech is

immune from constitutional challenge, it is nonetheless

accountable under the First Amendment when it suppresses

the speech of others. See Pleasant Grove City, Utah v. Sum-

mum, ___ U.S. ___ 129 S. Ct. 1125, 1132 (2009) (“While

government speech is not restricted by the Free Speech

Clause, the government does not have a free hand to regulate

private speech on government property.”) The government is

required to provide neutral access to public fora—i.e. it may

not privilege one religious or political viewpoint over another

and it may not prevent individuals from expressing their opin-

ions, just because it disagrees with them. The denial of access

would violate the First Amendment right to freedom of

expression of the individuals whose right to speak was cur-

tailed. See Carey v. Brown, 447 U.S. 455, 463(1980).

In Lebron, the Court considered whether Amtrak was a

government entity and could therefore be sued when it cur-

tailed the speech of an individual who wanted to display a

political message on a billboard in Pennsylvania Station.

Lebron, 513 U.S. at 376-77. In determining that Amtrak was

a government entity, the Court explained that Congress estab-

lished Amtrak for “public convenience and necessity.” Id. at

384 (internal quotation omitted). Congress created Amtrak as

a corporation and gave the President the power to appoint the

majority of Amtrak’s board members. See id. at 384-85.

DELANO FARMS v. CALIFORNIA TABLE GRAPE 15477

Viewing Amtrak as one in a “long history of corporations cre-

ated and participated in by the United States for the achieve-

ment of government objectives,” id. at 386, the Court held

that “where, as here, the Government creates a corporation by

special law, for the furtherance of government objectives, and

retains for itself permanent authority to appoint a majority of

the directors of that corporation, the corporation is part of the

Government for purposes of the First Amendment.” Id. at

400. As a result, Amtrak’s refusal to display a sign made by

the plaintiff was a decision that could be reviewed under the

First Amendment. Id.

[3] Like Amtrak, the Commission was created by the Cali-

fornia Legislature as a corporation. Cal. Food & Agric. Code

§ 65551. It was also established to further governmental

objectives. § 65500(h) (“The production and marketing of

grapes produced in California for fresh human consumption

is declared to be affected with a public interest; the provisions

of this chapter are enacted in the exercise of the police power

of this state for the purpose of protecting the health, peace,

safety and general welfare of the people of this state.”). This

invocation of the State’s police power to protect health and

safety contrasts with the general “public interest” goal

advanced by the State Bar in Keller. See Keller, 496 U.S. at

13. Although the subsidy targets a specific industry, the Com-

mission’s focus is, unlike the Bar Association’s not on profes-

sional advice for its members but rather a broader purpose of

addressing the “unreasonable and unnecessary economic

waste of the agricultural wealth” of California. § 65500(e).

Significantly, the Secretary of the CDFA has the power to

appoint all of the commissioners, similar to the President’s

power vis a vis Amtrak. §§ 65550, 65563, 65566, 65575.1.

The Commission correctly points out that the Secretary has an

additional important power over the Commission—the

authority to remove a commissioner—that the President does

not possess over Amtrak.

Delano Farms’s assertion that Lebron applies only when an

entity should be constrained by the First Amendment, and not

15478 DELANO FARMS v. CALIFORNIA TABLE GRAPE

when an entity defensively seeks immunity from suits brought

under the First Amendment, finds no support in Lebron. The

Court’s statements of the issue in Lebron and Johanns, both

authored by Justice Scalia, are strikingly similar. In 1995 in

Lebron, Justice Scalia wrote: “[W]e consider whether the

actions of . . . Amtrak [ ] are subject to the constraints of the

Constitution.” 513 U.S. at 376. Ten years later in Johanns,

Justice Scalia explained: “[W]e consider whether a federal

program violates the First Amendment . . . the dispositive

question is whether the generic advertising . . . is the Govern-

ment’s own speech and therefore is exempt from First

Amendment scrutiny.” 544 U.S. 553. Nothing in Lebron sug-

gests that the government entity analysis was limited to an

offensive plaintiff posture. Rather, Lebron, like Johanns,

speaks generally to whether the speech is government speech

“for purposes of the First Amendment.” Lebron, 513 U.S. at

400.

[4] Nevertheless, there is admittedly an uncharted gap

between Keller and Lebron. Were we to decide this appeal

based solely on whether the Commission is a government

entity, Lebron and the strong indicia of governmental status

and control would tip the balance to classifying the Commis-

sion as a governmental entity. Under the circumstances here,

however, this question is closely related to the government

control question. Because the Commission’s activities are

effectively controlled by the State of California, also render-

ing them government speech, the bottom line remains the

same—the Commission’s advertising activities are govern-

ment speech and thus beyond the restraints of the First

Amendment.

II. THE STATE’S “EFFECTIVE CONTROL” OVER THE TABLE

GRAPE COMMISSION’S ACTIVITIES

Regarding the inquiry whether the Commission’s message

is “effectively controlled” by the state government, we turn to

DELANO FARMS v. CALIFORNIA TABLE GRAPE 15479

the Supreme Court’s decision in Johanns and our decision in

Paramount Land.

A. Johanns v. Livestock Marketing Association

In Johanns, the Supreme Court considered the constitution-

ality of the Beef Promotion and Research Act of 1985 (the

“Beef Act”), Pub. L. No. 99-198, 99 Stat. 1597 (1985). The

Beef Act furthers a federal policy of promoting the marketing

and consumption of beef and beef products and funds those

activities through assessments on cattle sales and imports. See

Johanns, 544 U.S. at 553. “The statute directs the Secretary

of Agriculture to implement this policy by issuing a Beef Pro-

motion and Research Order,” id., (“Beef Order”), and speci-

fies that the Secretary should appoint a Beef Board that is to

convene an Operating Committee that is composed of 10 Beef

Board members and 10 representatives named by state beef

councils. Id. (citing 7 U.S.C. § 2904(4)(A)). The Operating

Committee is to design promotional campaigns, which are

approved by the Secretary before their release. Id.

[5] The Court held that the Operating Committee’s promo-

tional activities constitute the government’s own speech

because the message is effectively controlled by the federal

government. Johanns, 544 U.S. at 560-61. In so holding, the

Court recognized three key factors about the program. First,

Congress directed the creation of the promotional program

and specified that the program should include “paid advertis-

ing, to advance the image and desirability of beef and beef

products.” Id. at 560 (quoting 7 U.S.C. §§ 2901(b), 2902(13))

(internal quotations omitted). Second, “Congress and the Sec-

retary have also specified, in general terms, what the promo-

tional campaigns shall contain . . . and what they shall not

. . .” Id. at 561 (internal citations omitted). Specifically, the

campaigns should not refer to brand or trade names of any

beef product. Id. “Thus, Congress and the Secretary have set

out the overarching message and some of its elements, and

they have left the development of the remaining details to an

15480 DELANO FARMS v. CALIFORNIA TABLE GRAPE

entity whose members are answerable to the Secretary (and in

some cases appointed by him as well).” Id. Finally, “the

record demonstrate[d] that the Secretary exercises final

approval authority over every word used in every promotional

campaign.” Id. The Court, therefore, held that the Beef Board

and the Operating Committee could rely on the government

speech doctrine to deflect the cattle associations’ challenge.

Id. at 562.

B. Paramount Land Co. LP v. California Pistachio

Commission

[6] Following Johanns, in Paramount Land, we applied

these principles to a First Amendment challenge to the Cali-

fornia Pistachio Commission. Paramount Land, 491 F.3d at

1010. Like the Beef Act, the California Legislature enacted

the Pistachio Act and created the Pistachio Commission to

promote the economic interests of the State. Id. at 1006 (citing

Cal. Food & Agric. Code § 63901). “The Pistachio Commis-

sion is directed to ‘promote the sale of pistachios by advertis-

ing and other promotional mean[s] . . . .” Id. at 1010 (Cal.

Food & Agric. Code § 69051(i). Only one of the nine mem-

bers of the Pistachio Commission is appointed by the Secre-

tary of the CDFA. The other eight pistachio commissioners

are selected by California pistachio growers. Id. at 1006 (cit-

ing § 63901).

Although the Pistachio Commission creates the specific

messaging based on the Legislature’s general directive, more

significant to the question of the State’s control, “the Pista-

chio Commission must submit to the Secretary of the CDFA,

for his concurrence, ‘an annual statement of contemplated

activities authorized [by the Pistachio Act], including adver-

tising, promotion, marketing research, and production

research.’ ” Id. at 1010 (quoting § 69051(q)). In addition, the

Secretary retains “broad statutory authority” to attend and par-

ticipate in Pistachio Commission meetings; to review the Pis-

tachio Commission’s budget and planned activities; to

DELANO FARMS v. CALIFORNIA TABLE GRAPE 15481

conduct audits; to approve nomination and election proce-

dures; to decide appeals from grievances brought by growers;

and to suspend or discharge the Pistachio Commission’s pres-

ident. Id. at 1010-11 (citing Cal. Food & Agric. Code

§§ 69051, 69069, 69092).

[7] Ultimately, we determined that the pistachio growers’

challenge should be resolved in the same way as the beef pro-

gram in Johanns. Paramount Land, 491 F.3d at 1010. We rec-

ognized that the discussion of the specifics of the beef

promotion program in “Johanns did not set a floor or define

minimum requirements.” Paramount Land, 491 F.3d at 1011.

And, comparing the Beef Act and the Pistachio Act, we held

that the differences in statutorily provided oversight were “le-

gally insufficient” to distinguish the Pistachio Act from the

Beef Act, reasoning that “[t]o draw a line between these two

approaches to oversight risks micro-managing legislative and

regulatory schemes, a task federal courts are ill-equipped to

undertake.” Id. In short, we held that the message of the Pista-

chio Commission is “from beginning to end the message

established by the State.” Id.

C. Johanns and Paramount Land Applied to the Table

Grape Commission

The framework of statutes governing the Commission is

sufficiently similar to the schemes addressed in Johanns and

Paramount Land for us to conclude that the State exercises

effective control over the Commission’s activities. In other

words, the Commission’s message is “from beginning to end”

that of the State. See Paramount Land, 491 F.3d at 1012

(quoting Johanns, 544 U.S. at 560).

[8] The founding of the Commission, its structure, and its

relationship to the State of California is strikingly similar to

the beef program at issue in Johanns and the Pistachio Com-

mission considered in Paramount Land. Like the beef pro-

gram and the Pistachio Commission, the Commission was

15482 DELANO FARMS v. CALIFORNIA TABLE GRAPE

established by an act of the Legislature, the Ketchum Act.

§§ 65500 et seq. The California Legislature intended for the

Commission, like other commissions established by the State,

to “[i]mplement public policy through their expressive con-

duct.” § 63901(a). The Commission is tasked with

“[e]nhance[ing] the image of California agricultural and sea-

food products to increase the overall demand for these com-

modities.” § 63901(e). Also similar to the beef program in

Johanns and identical to the Pistachio Commission in Para-

mount Land, the Legislature provided an overriding directive

for the sorts of messages the state commissions should pro-

mote: “[T]he Legislature intends that the commissions and

councils operate primarily for the purpose of creating a more

receptive environment for the commodity and for the individ-

ual efforts of those persons in the industry, and thereby com-

plement individual, targeted, and specific activities.”

§ 63901(e).

The California Legislature was quite specific about its

expectations for the Commission and its messaging. The Leg-

islature declared that “[g]rapes produced in California for

fresh human consumption comprise one of the major agricul-

tural crops of California, and the production and marketing of

such grapes affects the economy, welfare, standard of living

and health of a large number of citizens residing in this state.”

§ 65500(a). The Legislature further defined the purpose of the

Commission’s work by declaring that the Commission should

focus on:

[t]he promotion of the sale of fresh grapes for human

consumption by means of advertising, dissemination

of information on the manner and means of produc-

tion, and the care and effort required in the produc-

tion of such grapes, the methods and care required in

preparing and transporting such grapes to market,

and the handling of the same in consuming markets,

research respecting the health, food, and dietetic

value of California fresh grapes and the production,

DELANO FARMS v. CALIFORNIA TABLE GRAPE 15483

handling, transportation, and marketing thereof, the

dissemination of information respecting the results

of such research, instruction of the wholesale and

retail trade with respect to handling thereof, and the

education and instruction of the general public with

reference to the various varieties of California fresh

grapes for human consumption, the time to use and

consume each variety and the uses to which each

variety should be put, the dietetic and health value

thereof . . .

§ 65500(f). The specifics contained in § 65500(f) go much

further in defining the Commission’s message than the Beef

Act and Beef Order’s general directive that the Operating

Committee’s programming should discuss different types of

beef and that it should refrain from using brand names. See

Johanns, 544 U.S. at 561.

Like the Operating Committee in Johanns and the Pistachio

Commission in Paramount Land, the Commission is tasked

with developing specific messaging campaigns. Importantly,

the Secretary of the CDFA possesses the power of nomination

over all of the table grape commissioners. §§ 65550, 65575.1.

The Secretary’s power in this respect is greater than either the

Secretary of Agriculture’s power in Johanns (the Secretary

has the power to appoint all Beef Board members, but only

half of the Operating Committee, see Johanns, 544 U.S. at

560) or the Secretary of the CDFA’s power in Paramount

Land (eight pistachio commissioners are elected by industry

and only one is appointed by the Secretary of the CDFA, see

Paramount Land, 491 F.3d at 1006). The Secretary also has

the power to remove a table grape commissioner. §§ 65550,

65575.1. The State possesses additional oversight powers

over the Commission, as the Commission is required to “keep

accurate books, records, and accounts of all of its dealings”

and must make those records open to review by the State.

§ 65572(f).

15484 DELANO FARMS v. CALIFORNIA TABLE GRAPE

[9] Of course, there are some important differences

between the Ketchum Act on the one hand and the programs

considered in Johanns and Paramount Land on the other.

Unlike the Beef Order and the Pistachio Act, the Ketchum

Act does not require any type of review by the Secretary over

the actual messages promulgated by the Commission. Under

the Beef Order, the Beef Board and Operating Committee

send all plans to the Secretary for final approval. 7 C.F.R.

§§ 1260.68 & 1260.169. Likewise, the Pistachio Commission

must “submit to the secretary, for his or her concurrence, an

annual statement of contemplated activities . . . including

advertising, promotion, marketing research, and production

research.” § 69051(q). We recognize that final approval has

been statutorily provided to the relevant secretaries in other

commodities programs that courts have approved since

Johanns. See Am. Honey Producers Assoc., Inc. v. U.S.D.A.,

2007 WL 1345467, at *2 (E.D. Cal. May, 8, 2007) (determin-

ing that honey program funded by industry assessments

involved government speech and was therefore immune to

constitutional challenge, the court noted that the Act includes

a provision that gives the Secretary final approval power over

messages before they can be disseminated to the public); Avo-

cado Plus, Inc. v. Johanns, 421 F. Supp. 2d 45, 47-48 (D.D.C.

2006) (same, for avocado program); Cricket Hosiery, Inc. v.

United States, 429 F. Supp. 2d 1338, 1346 (Ct. Intl. Trade

2006) (same, for cotton program). We do not discount the sig-

nificance of the power over specific messaging.

[10] An additional noteworthy difference between the

Ketchum Act and the Pistachio Act, in particular, concerns

the Secretary’s power to “require the [Pistachio] commission

to correct or cease any existing activity or function that is

determined by the secretary not to be in the public interest or

to be in violation of this chapter.” Cal. Food & Agric. Code

§ 69032. The Ketchum Act does not grant a similar power to

the Secretary. Rather, under Cal. Food & Agric. Code

§ 65660, the Commission may recommend to the Secretary

that its operation be suspended, or producers may file a peti-

DELANO FARMS v. CALIFORNIA TABLE GRAPE 15485

tion with the Secretary recommending the same. At that point,

the Secretary causes a referendum to be conducted among

producers. § 65660. Although less direct, this route for review

still involves the Secretary in the oversight process. And, of

course, the ultimate power of review and oversight—the Sec-

retary’s authority to remove table grape commissioners—

cannot be discounted.

The bulk of Delano Farms’s remaining arguments distin-

guishing the State’s effective control over the Commission as

compared to the beef program and the Pistachio Act largely

rely on pointing out that the Secretary and the CDFA have, in

practice, performed virtually no supervision of the Commis-

sion. Delano Farms notes that the Secretary does not attend

meetings and does not review advertising and promotional

activities, nor does the State review the Commission’s bud-

gets. The record also reflects that the CDFA had very few

documents in its possession related to the Commission’s

work. In any event, Delano Farms’s laissez-faire argument is

foreclosed by Paramount Land, in which we underscored that

“passivity is not an indication that the government cannot

exercise authority.” 491 F.3d at 1011. Our focus in this case,

as in Paramount Land, is the statutorily-authorized control the

State has over the Commission, and not the actual level of

control evidenced in the record.

[11] While we acknowledge that there are differences in

statutorily-prescribed oversight afforded to the government in

the case of the Commission, the beef program, and the Pista-

chio Commission, these differences are legally insufficient to

justify invalidating the Ketchum Act on First Amendment

grounds. In sum, we are mindful of Paramount Land’s admo-

nition that “[t]o draw a line between these . . . approaches to

oversight risks micro-managing legislative and regulatory

schemes, a task federal courts are ill-equipped to undertake.”

Paramount Land, 491 F.3d at 1012.

15486 DELANO FARMS v. CALIFORNIA TABLE GRAPE

CONCLUSION

[12] The district court did not err in granting summary

judgment to the Table Grape Commission on the ground that

its promotional activities constitute government speech and

are thus immune to challenge under the First Amendment. We

AFFIRM the district court’s grant of summary judgment to

the Table Grape Commission on this dispositive issue.

AFFIRMED.

REINHARDT, Circuit Judge, concurring in part:

I concur in the majority opinion up to the concluding para-

graph of Part I. Rather than finding any “uncharted gap” or

performing any “tip[ping of] the balance,” I would simply

conclude that the Commission is a government entity and that

its speech is therefore government speech. For that reason, I

find Part II wholly unnecessary to the opinion, and would not

reach the question of government control. I express no view

as to any discussion or holdings contained in Part II.