United States v. L. Robert Frame, Sr. And Vintage Sales Stables, Inc.

SLOVITER, Circuit Judge,

dissenting.

I.

The Beef Promotion and Research Act (the Act) is so unique in the annals of our case law that there is no true analytic analog. To understand what the program is, it is necessary to outline what it is not. This is, first of all, not a regulatory program. This is not representative of those *1144 programs where Congress, primarily for the national interest and secondarily for the interest of the industry, has determined that regulation of some aspects of the production, price, or standardization of a commodity is required. See, e.g., United States v. Sullivan, 332 U.S. 689, 698 , 68 S.Ct. 331, 336 , 92 L.Ed. 297 (1948) (federal law requiring standardized drug product labels upheld); Wickard v. Filburn, 317 U.S. 111, 128-29 , 63 S.Ct. 82, 90-91 , 87 L.Ed. 122 (1942) (wheat production quotas upheld); United States v. Wrightwood Dairy Co., 315 U.S. 110, 121 , 62 S.Ct. 523, 527 , 86 L.Ed. 726 (1942) (fixing of minimum prices for milk upheld); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 393-94 , 60 S.Ct. 907, 912-13 , 84 L.Ed. 1263 (1940) (fixing of minimum prices for bituminous coal upheld). Neither the Beef Promotion and Research Act nor its offspring, the Cattlemen’s Board and the Operating Committee, perform any regulatory role with respect to beef or cattle prices, production, standardization or testing. Therefore, the majority’s statement that this program “resembles a number of recent congressional enactments designed to make various federal regulatory programs partially or entirely self-financing,” maj. op. at 1122, is, I respectfully note, unsupportable.

The only “regulatory” aspect of this program which the majority has been able to identify is the “attempt to bolster the public image of a product in order to increase consumer demand.” Id. at 1126. The advertising of a product does not fit within the accepted meaning of “regulation.” See, e.g., “regulate: ... 1: to govern or direct according to rule ... 2a: to reduce to order, method, or uniformity ... 3: to fix the time, amount, degree, or rate of.” Webster’s Third New International Dictionary 1913 (1976). I do not view the compulsion that all sellers of cattle contribute financially to the industry message by proclaiming in Madison Avenue style the value of beef over the radio and television stations of the United States to be a regulatory program.

Of course, trade associations routinely perform such functions, but never before to my knowledge has any court held that an industry member must be forced to contribute to such a program, and to do so at the pain of a suit by the United States Justice Department seeking to collect the substantial payment assessed and a penalty of 2% a month.

Although I believe that this statute can be challenged on more than one ground, I believe that it is sufficient to rest this dissent on the statute’s incompatibility with the principles protected by the First Amendment. Specifically, I believe that the central provision of the Act which assesses a mandatory non-refundable fee for general promotional advertising of the benefits of beef consumption violates Frame’s First Amendment right to freedom to refrain from engaging in commercial advertising. Even if the First Amendment rights implicated in this case are not absolute, I believe that the government has failed to show that the scheme is carefully tailored to pose no greater burden than necessary in light of the government interest asserted.

II.

Contribution of money to further the projection of a message is a form of speech, see Buckley v. Valeo, 424 U.S. 1, 16-17 , 96 S.Ct. 612, 633-34 , 46 L.Ed.2d 659 (1976), and it follows, as the majority recognizes, that mandated contribution of money for purposes of funding advertisements implicates Frame’s rights against forced speech. We can thus begin our analysis' with the line of cases which have struck down government requirements that individuals endorse particular ideas, whether through a pledge of allegiance, West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943), mandated display of a state motto on automobile license plates, Wooley v. Maynard, 430 U.S. 705 , 97 S.Ct. 1428 , 51 L.Ed.2d 752 (1977), or payment of dues for a labor union’s political activities, Abood v. Detroit Bd. of Educ., 431 U.S. 209 , 97 S.Ct. 1782 , 52 L.Ed.2d 261 (1977); see also Galda v. Rutgers, 772 F.2d 1060 (3d Cir.1985), cert. denied, 475 U.S. 1065 , 106 S.Ct. 1375 , *1145 89 L.Ed.2d 602 (1986) (university’s requirement that students contribute to nonpartisan student lobbying organization violates First Amendment). A variation of these principles was recently applied in Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1, 9, 15 , 106 S.Ct. 903, 908, 911 , 89 L.Ed.2d 1 (1986), where the Court held unconstitutional a state Public Utility Commission requirement that a private utility provide access in its billing envelopes to other views. The plurality explained that a state may not require a utility company to "associate with speech with which [it] may disagree.” Id. at 15 , 106 S.Ct. at 911 .

These cases proceed from the recognition that compulsion of speech can be equated with suppression of speech because the two are “complementary components of the broader concept of ‘individual freedom of mind.’ ” Wooley, 430 U.S. at 714 , 97 S.Ct. at 1435 (quoting Barnette, 319 U.S. at 637 , 63 S.Ct. at 1185 ); see also Riley v. National Fed’n of the Blind, — U.S. -, 108 S.Ct. 2667, 2677 , 101 L.Ed.2d 669 (1988) (“ ‘freedom of speech’ [is] a term necessarily comprising the decision of both what to say and what not to say”) (emphasis in original).

In Abood , the case most apposite to the facts here, the Court held that although a public employee, as well as a private employee, can be required to contribute to the costs of exclusive union representation despite the employee’s “ideological objections” to the union’s activities, 431 U.S. at 222 , 97 S.Ct. at 1792, it was unconstitutional to mandate assessment of funds to finance the union’s political and ideological activities that were extraneous to its collective bargaining duties. Quoting from precedent and from Madison and Jefferson, id. at 234-35 & n. 31, 97 S.Ct. at 1799, n. 31 (“ ‘ “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical” ’ ”), the Court found that the principles of the First Amendment “prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose.” Id. at 235, 97 S.Ct. at 1799.

Admittedly, there is a lesser impact on the freedom of conscience and belief which underlay the Bamette-Wooley line of cases where, as here, the compelled speech is of a commercial nature. The Court’s opinions analyzing commercial speech stress, however, that important First Amendment values are at stake even in the commercial speech context.

Even though the rationale often given for the protection of commercial speech which focuses on the “consumer’s interest in the free flow of commercial information,” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763 , 96 S.Ct. 1817, 1826 , 48 L.Ed.2d 346 (1976), is inapplicable here, this cannot mean that the government is free to compel its citizens to support commercial speech. It can no more compel me to advertise a product on the outer wall of my home than it can compel me to carry a similar sign on the back of my jacket. Similarly, it cannot compel me to contribute my money to permit a private group to perform that function. The fact that, as the government stresses, I may retain my right “to criticize any aspect of the government’s promotional program,” Brief for the Appel-lee at 32, does not alter the unassailable fact that the compulsion to utter or support commercial speech would “force [me] ... to alter [my] speech to conform with an agenda [I have] not set.” Pacific Gas, 475 U.S. at 9 , 106 S.Ct. at 908 .

I believe it is immaterial whether Frame’s objection is for ideological reasons or libertarian ones, or even whether such reasons may also be in part colored by economic considerations. The government in its motion for summary judgment did not argue that Frame’s objection is frivolous or not sincerely held. If the genuineness of his objection were a material issue, then he would be entitled to a hearing for that purpose.

Forced speech must, of course, be distinguished from government speech. I agree with the majority’s analysis leading it to the conclusion that the “self-help program for the beef industry” is not transformed *1146 “into ‘government speech.’ ” Maj. op. at 1134-35. Regardless of whether the industry board should be considered a public or private organization, see L. Tribe, American Constitutional Law § 12-4 at 807 n. 14 (2d ed. 1988), it is clear that the message in this case is not one by the government as “representative of the people,” but reflects speech by “one segment of the population, with certain common interests.” Abood, 431 U.S. at 259 n. 13, 97 S.Ct. at 1811-12 n. 13 (Powell, J., concurring).

This is an important step in our understanding of what is involved in this case. For example, if the government were to use general revenue funds to proselytize the proposition, well established through medical/scientific studies, that smoking is harmful to one’s health and general well being, surely the tobacco industry would not be able to argue that the use of government funds for that purpose violated the First Amendment rights of those who disagree with the message. The almost unlimited right of the government to spend general revenue funds would preclude such an argument even if the government speech were less soundly based, such as, for example, were it to promote the converse proposition encouraging smoking. Applying this proposition more directly here, if the Secretary of Agriculture had determined that maintenance and growth of the cattle industry were necessary to the well-being of the industry and the general welfare, and accordingly used funds appropriated tm his department from general revenues to promote consumption of beef, those who disagreed with the message, such as vegetarians or animal rights advocates, could not complain on First Amendment grounds. Once we pass, however, from government speech, financed by general revenues, to forced speech, effected through the compelled monetary contribution from a discrete group to support a private business advertising campaign, the reasoning that precludes challenge to government speech no longer applies.

Because, as I noted above, there is no precedent for the kind of compelled commercial speech at issue here, it is difficult to find the appropriate framework for analysis. The majority’s framework, which would examine if the regulations are “adopted to serve compelling state interests, that are ideologically neutral, and that cannot be achieved through means significantly less restrictive of free speech or associational freedoms,” maj. op. at 1134, comes primarily from cases analyzing when infringements on the right to associate for expressive purposes may be justified. I doubt that the type of compelled speech at issue here can be justified on any basis. Nonetheless, I do not reach the majority’s more stringent associational rights standard because I believe that no justification can be found, even under the less exacting criteria adopted by the Supreme Court in evaluating the permissibility of regulation of commercial speech. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980).

In Central Hudson, where the Court struck down a state utility commission’s ban on promotional advertising by electric utilities which had been imposed with the aim of reducing the demand for electricity in response to the nation’s energy crisis, the Court held that “commercial speech,” i.e., expression “proposing a commercial transaction” and “related solely to the economic interest of the speaker and its audience,” 447 U.S. at 561-63 , 100 S.Ct. at 2348-50 , is encompassed by the First Amendment, id. at 561 , albeit with “a lesser protection” than accorded to other types of expression, id. at 563 , 100 S.Ct. at 2350 . From this principle have come cases such as Virginia Board of Pharmacy, 425 U.S. at 770 , 96 S.Ct. 1829 (striking state ban on drug price advertisement); Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 532 , 100 S.Ct. 2326, 2330 , 65 L.Ed.2d 319 (1980) (invalidating state’s ban on utilities’ use of bill inserts to discuss “controversial issues of public policy”); and Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 68 , 103 S.Ct. 2875, 2881 , 77 L.Ed.2d 469 (1983) (state could not ban commercial speech advertising condoms).

*1147 The Court explained that in cases involving commercial speech, “[t]he State must assert a substantial interest to be achieved by restrictions on commercial speech”; “the regulatory technique must be in proportion to that interest”; and the “limitation on expression must be designed carefully to achieve the State’s goal.” Central Hudson, 447 U.S. at 564 , 100 S.Ct. at 2350 .

Probably the most substantial government interest that can be asserted to regulate commercial speech is in protection of the consumer. See, e.g., Central Hudson, 447 U.S. at 578 , 100 S.Ct. at 2357 (Blackmun, J., concurring). Thus, for example, to return to the tobacco example, the government or its agencies may require harmful products, such as cigarettes, to carry a warning legend. See 15 U.S.C. § 1333 (1982); see also United States v. Sullivan, 332 U.S. at 698 , 68 S.Ct. at 336 (upholding federal law requiring warning labels on drugs). Here, however, the government interest asserted is not one of protection of the public from fraud, illegal activity, or harmful health effects. The advertisements are not akin to the promotion of public welfare by public service messages concerning nutrition and health. Instead, as described variously by the majority, the government’s goal in the program is to “strengthen the beef industry’s position in the marketplace,” maj. op. at 1122, to prevent the “decay” of this industry, id. at 1134, and “to communicate [a] message that beef is good,” id. at 1131. While the government has a general interest in the health of the beef industry, it does not follow that the government has a substantial interest in compelling the beef industry to make and support such a promotion campaign. Instead, as the majority points out in rejecting the district court’s argument that the advertisements are a form of public service announcement, the messages represent the economic interests of “one segment of the population,” maj. op. at 1133 (quoting Abood, 431 U.S. at 259 n. 13, 97 S.Ct. at 1811-12 n. 13 (Powell, J., concurring)). Thus, even if the standard by which the government’s interest should be evaluated is a “substantial” interest rather than a “compelling” one, which the majority uses, I cannot conclude that the government’s interest in a program of this kind is sufficiently substantial to permit it to compel speech.

The majority argues that the purpose underlying the Act is “ideologically neutral.” Maj. op. at 1135. Although beef promotion may be less ideological than the motto “Live Free or Die,” Wooley v. Maynard, 430 U.S. at 707 , 97 S.Ct. at 1431 , I am less persuaded than the majority is that beef promotion does not implicate ideological concerns. There are exhibits in this record of an advertisement funded under the Act stating, “the lowdown on beef is probably less than you think — lower in calories, leaner on fat, lighter on cholesterol than you ever imagined,” and another quoting the actress Cybill Sheperd saying, “ T know some people who don’t eat hamburgers. But I’m not sure I trust them.’ ” These messages may be found ideologically offensive by groups which espouse vegetarianism for religious or moral reasons. Moreover, the health effect of eating substantial quantities of beef is a matter of some controversy. For centuries it has been said that, “One man’s meat is another’s poison.” 1

Turning then to the third criterion applied by the majority, the degree of infringement on First Amendment rights or, put in Central Hudson terms, whether the regulation is “not more extensive than is necessary to serve [the government] interest,” 447 U.S. at 566, 100 S.Ct. at 2351, the majority summarily concludes, without analysis, that the Act is drafted “in a way that infringes on the contributors’ rights no more than necessary.” Maj. op. at 1137. 2

*1148 This conclusion is apparently based on the majority’s earlier reasoning that the Act mandates assessments “presumably to prevent ‘free-riders’ from receiving the benefits of the promotion and research program without sharing the cost.” Maj. op. at 1135. There is, however, nothing in the record to support the assumption that there would be insufficient voluntary contributions by those cattle producers who support the program to provide the funds necessary to continue such promotion. The record shows that support for the program within the industry has grown. 3

Trade association and industry promotion programs are supported throughout the country through voluntary contributions by those in the industry convinced that the programs inure to their benefit, although they realize that non-members may also get some benefit. Therefore, even if one were to overcome the, for me insurmountable, hurdle imposed by the need to show a sufficiently substantial government interest in the promotion program, there is absolutely no basis other than speculation from which one could conclude that the contributions compelled from those who choose not to make them are necessary to the beef promotion goal.

The free rider issue raised here is unlike the mandatory assessment of union dues. Cases upholding the latter do so because of the legislative judgment that “it would promote peaceful labor relations to permit a union and an employer to conclude an agreement requiring employees who obtain the benefit of union representation to share its cost.” Abood, 431 U.S. at 217-23 , 97 S.Ct. at 1790-93 ; see also Chicago Teachers Union, Local 1 v. Hudson, 475 U.S. 292 , 301 & n. 8, 106 S.Ct. 1066 , 1073 & n. 8, 89 L.Ed.2d 232 (1986) (citing cases). The function performed by a self-promoting industry group is hardly comparable. See Ellis v. Brotherhood ofRy., Airline & S.S. Clerks, 466 U.S. 435, 455-56 , 104 S.Ct. 1883, 1895-96 , 80 L.Ed.2d 428 (1984) (“It has long been settled that ... interference with First Amendment rights [through mandated union contributions] is justified by the governmental interest in industrial peace.”) (citations omitted).

While fees assessed for industry self-regulation, such as user fees, have been upheld as a fair allocation of the costs of regulatioh on those whose industry benefits therefrom, see Skinner v. Mid-America Pipeline Co., — U.S. -, 109 S.Ct. 1726, 1734 , 104 L.Ed.2d 250 (1989), that line of cases, relied on by the government, cannot be used to uphold a mandated contribution towards speech with which the contributor is unwilling to associate. I fear that the majority’s opinion crosses a threshold leading us to mandated contributions for speech and advertisements which we cannot presently envisage and which would *1149 make a mockery of the First Amendment protection accorded “the decision of ... what not to say.” See Riley, 108 S.Ct. at 2677 (emphasis in original).

For the reasons set forth, I respectfully dissent from the majority's opinion and judgment.

. See, e.g., Lucretius, De Rerum Natura, bk. IV, 1. 637; Beaumont and Fletcher, Love's Cure, act III, sc. ii (1647); O. Dykes, English Proverbs (1709), cited in J. Bartlett, Familiar Quotations 101 & n. 6 (15th ed. 1980).

. We note in passing that the refund provision of the original Beef Research and Information Act of 1976, see Pub.L. No. 94-294, 90 Stat. 529, 535 (1976), was deleted from the 1985 version of the statute. The new statute permitted producers to demand a one-time refund of assessments *1148 collected during the period prior to the referendum, see 7 U.S.C. § 2907 (c) (Supp. III 1985), 7 C.F.R. §§ 1260.173 -.174 (1988), but includes no provision for refunds of assessments collected sifter this referendum. In this respect, it is unlike some of the other similar programs for promoting agricultural products. See, e.g., The Cotton Research and Promotion Act of 1966, 7 U.S.C. § 2110 (1982) ("any cotton producer against whose cotton any assessment is made ... and who is not in favor of supporting the research and promotion program as provided for herein shall have a right to demand and receive from the Cotton Board a refund of such assessment."); the Watermelon Research and Promotion Act of 1985, 7 U.S.C. § 4906 (h) (Supp. III 1985) (similar); the Potato Research and Promotion Act of 1971, 7 U.S.C. § 2617 (g) (1982); the Honey Research, Promotion and Consumer Information Act of 1984, 7 U.S.C. § 4608 (h) (Supp. II 1984). Even if one were to conclude that industry members could be compelled to contribute to industry research and that the funds collected under the Act are sponsoring such research (a fact on which the record is silent), there is no reason shown why the amounts necessary to support such research, as distinguished from the amounts needed for the promotion campaign, cannot be calculated before the assessment. See Chicago Teachers Union, Local 1 v. Hudson, 475 U.S. 292, 305-06 , 106 S.Ct. 1066, 1075-76 , 89 L.Ed.2d 232 (1986).

. Originally the Act did not become operative because it received only 56.4% in 1978 rather than the two-thirds vote then needed, and in 1980 could not even reach the majority needed under the revised statute. See L. Glaser, Provisions of the Food Security Act of 1985, at 74-75 (U.S. Dep’t of Agriculture Information Bulletin No. 498, 1986). After the Act was amended to put it into effect before any vote, subject to a referendum thereafter, 78.9% of the voters approved its operation, thereby making the Act and the assessments permanent.