# Amicus Curiae Brief — Johanns v. Livestock Marketing Assn. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0740%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 - **Citation:** 544 U.S. 550 ## Text Supreme Court US. (») FILED JQ A Nos. 03-1164 & 03-1165 G26 2004 IN THE Supreme Cont of the United States ANN M. VENEMAN, SECRETARY OF AGRICULTURE, et a/., Petitioners, LIVESTOCK MARKETING ASSOCIATION, et a/., Respondents. NEBRASKA CATTLEMEN, INC., ef a/., Petitioners, LIVESTOCK MARKETING ASSOCIATION, ef a/., Respondents. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR AMICUS CURIAE THE CALIFORNIA AGRICULTURAL ISSUES FORUM SUPPORTING PETITIONERS SETH P. WAXMAN Counsel of Record RANDOLPH D. Moss ; TODD ZUBLER BRIAN M. BOYNTON WILMER CUTLER PICKERING HALE AND DORR LLP 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000 QUESTION PRESENTED. TABLE OF AUTHORITIES STATEMENT OF INTEREST SUMMARY OF ARGUMENT ARGUMENT TABLE OF CONTENTS MANDATORY CONTRIBUTIONS FOR COMMOD- ITY PROMOTION PROGRAMS Do Not IMPLI- CATE PRODUCERS’ FIRST AMENDMENT RIGHTS BECAUSE THE SPEECH FUNDED IS THAT OF THE GOVERNMENT. SSSR RHEE HEHEHE eee SSSR HSER HEHEHE eH Ee sa liliadiacliadiadatieeeiaiede dati tadaieieieal A MANDATORY COMMODITY PROMOTION PRO- GRAM IS CONSTITUTIONAL IF IT SATISFIES INTERMEDIATE SCRUTINY. .....c.cccscececscocosesessssersserereseeees MOST MANDATORY COMMODITY PROMOTION PROGRAMS WILL SURVIVE INTERMEDIATE SCRUTINY. aaa eeenerneeee A. Mandatory Commodity Promotion Pro- grams Further Substantial Governmental Interests in Supporting Agricultural In- dustries and Remedying Market Failures. ........... 1. Commodity Promotion Programs Maintain and Expand Agricultural In- CC 2. Ccummodity Promotion Programs Cor- rect the Market Failure Caused by “Free Riding.” B. Mandatory Commodity Promotion Pro- grams Directly Advance an Important Governmental Purpose and Are Narrowly Tailored. (iii) 11 13 14 . 18 iv TABLE OF CONTENTS—Continued 1V. COMMODITY PROGRAMS THAT REQUIRE PRO- DUCERS TO ASSOCIATE FOR IMPORTANT REA- SONS APART FROM CONDUCTING GENERIC ADVERTISING SATISFY THE “GERMANENESS” TEST OF ABOOD. .. CONCLUSION........... . 2 & — sew ST nn TABLE OF AUTHORITIES CASES Page(s) 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) i) Abood v. Detroit Board of Education, 431 U.S. 209 (1977) 3, 11, 27, 30 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) 1l Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000) 4,6 Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989) 12, 25 Burson v. Freeman, 504 U.S. 191 (1992) 7 Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) x Charter v. USDA, 230 F. Supp. 2d 1121 (D. Mont. 2002) 6 FEC v. Beaumont, 539 U.S. 146 (2003) 10 Gerawan Farming, Inc. v. Kawamura, 90 P.3d 1179 (Cal. 2004) 12, 13, 14, 25, 26 Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997) passim Keller v. State Bar of California, 496 US. 1 (1990) 4, 5, 18, 27 Lathrop v. Donohue, 367 U.S. 820 (1961) 11 Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995) 4, 5,6 Lehnert v. Ferris Faculty Ass'n, 500 US. 507 (1991) 11,18 Livestock Marketing Ass’n v. USDA, 207 F. Supp. 2d 992 (D.S.D. 2002) 6 McConnell v. FEC, 124 8S. Ct. 619 (2003) 10 Near v. Minnesota, 283 U.S. 697 (1931) . 7 Pelts & Skins, LLC v. Landreneau, 365 F.3d 423 (5th Cir. 2004) 26 Railway Employees’ Department v. Hanson, 351 US. 225 (1956) ll vi TABLE OF AUTHORITIES—Continued Page(s) Turner Broadcasting System, Inc. v. FCC, 512 US. 622 (1994) 11, 12 United States v. Frame, 885 F.2d 1119 (3d Cir. 1989) 12 United States v. O’Brien, 391 U.S. 367 (1968) 7 United States v. United Foods, 533 U.S. 405 (2001) .....passim Waters v. Churchill, 511 U.S. 661 (1994) 3] Webster v. Fall, 266 U.S. 507 (1925) 9 Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) 9, 10, 25 STATUTES Beef Promotion and Research Act of 1985, 7 U.S.C. §§ 2901 et seq. passim Agricultural Adjustment Act, ch. 25, 48 Stat. 31 (1933) 15 Federal Agriculture Improvement and Reform Act of 1996, Pub. L. No. 104-127, 110 Stat. 888......... 15, 16, 23 Cal. Food & Agric. Code § 63901 16, 23 Cal. Food & Agric. Code § 63901.4 16 Cal. Food & Agric. Code § 65500 et seq. 29, 30 OTHER AUTHORITIES 2002 Census of Agriculture, available at http://www.nass.usda.gov/census/ (last visited Aug. 20, 2004) . 2, 13, 20 Alston, Julian M., et al., The California Prune Board’s Promotion program: An Evaluation (Giannini Foundation Research Report No. 344, Mar. 1998) 17 vii TABLE OF AUTHORITIES—Continued Julian M. Alston et al., The California Table Grape Commission's Promotion Program: An Evaluation (Giannini Found. Research Report No. 43, Nov. 1997) (finding substantial returns to table grape advertising and promotion over the period 1968-1993), available at http:// giannini.ucop.edu/Monographs/43-grapes. (last visited Aug. 20, 2004) = Page(s) 17, 18 California Department of Food and Agriculture List of Marketing Programs, available at http://www.cdfa.ca.gov/mkt/mkt/mktbrds.html . (last visited Aug. 20, 2004) wo BY California Table Grape Commission, Brand Survey, available at http://www. freshcaliforni -com/consumer_research.pdf (last visited Aug. 20, 2004) 21 California Table Grape Commission website, avail- able at http//www.freshcaliforniagrapes.com (last visited Aug. 20, 2004) Carman, Hoy F. & R. Kim Craft, An Economic Evaluation of California Avocado Industry Marketing Programs 1961-1995 (Giannini — Research Report No. 345, July 17 Commodity Advertising and Promotion (Henry W. Kinnucan et al. eds. 1992) Crespi, John M., Promotion Checkoffs, Why So Controversial? The Evolution of Generic Ad- vertising Battles (National Institute for Com- modity Promotion Research & Evaluation 2001), available at http://www. aem.cornell.edu /special_programs/commodity/nicpre/bulletins/ rb0104.pdf (last visited Aug. 20, 2004) 15, 21 viii TABLE OF AUTHORITIES—Continued Page(s) Economic Research Service, USDA, State Fact Sheets, available at http://www.ers.usda.gov /StateFacts/US.HTM (last visited Aug. 20, 2004)... 13, 17 Forker, Olan D. & Ronald Ww. Ward, Commodity Advertising: The Economics and Measurement of Generic Programs (199B).....rererereneneees 15, 16, 19, 23 Kinnucan, Henry W., A Critique of the Promotion Evaluations Submitted in Fulfillment of the $906 PP AIDR AGP cccccecsccececcecsssscessssesssnsscsscssossnsososscssessssssesseee 17 Kinnucan, Henry W. & @ystein Myrland, Free- Rider Effects of Generic Advertising: The Case of Salmon, 19 Agribusiness 315 (2003) ...........-0-0e0e0 21, 22 Lauck, Jon, After Deregulation: Constructing Agri- cultural Policy in the Age of “Freedom To Farm,” 5 Drake J. Agric. L. 3 (2000)...... 1, 14. 15 Lee, Hyunok, et al., Mandated Marketing Pro- grams for California Commodities (Berkeley: University of California Agricultural Experi- ment Station, Giannini Foundation Information Series No. 96-1 (1996)) —_ 17 Looney, J.W., The Changing Focus of Government Regulation of Agriculture in the United States, 44 Mercer L. Rev. 763 (1993) .. 20 Market Share Reporter (Robert S. Lazich ed. 2003) ............ 20 Olson, Mancur, The Logic of Collective Action (1971). : 19 Samuelson, Robert J., A Sad Primer i in Hypocrisy, Newsweek (Feb. il, 2002) 15 The Laureates of the Univ. of Cal., Riverside, Cali- fornia Avocado Commission, available at http://www.development.ucr.edw/perpet- ual/perplaureatescac.html (last visited Aug. 20, 2004) 20 ix TABLE OF AUTHORITIES—Continued Page(s) USDA, Agricultural Mktg. Programs, available at http://www.ams.usda.gov/repromo.htm (last vi- Sited Aug. 20, 2004)........cccceccssssesssesssessessssessessseseses 16 USDA, Agricultural Mktg. Servs. List of Fed. Mktg. Orders, available at http://www.ams.usda.gov/fv/moabmotab.htm (last visited Aug. 20, 2004) .......c..cccccccsecsssesssssssssseesseeessss., 17 Vande Kamp, Phillip R. & Harry M. Kaiser, Com- modity Promotion rinencenwsn in the U itt 1800 ee sae 16 STATEMENT OF INTEREST' The California Agricultural Issues Forum (“the Fo- rum”) is a nonprofit mutual benefit corporation whose mem- bers are entities established under state or federal laws to collect mandatory assessments and to use those assessments to engage in research and promotional activities relating to particular agricultural commodities. The Forum is thus in- timately familiar with the workings of programs like that at issue in this case and has a substantial interest in the contin- ued operation and success of those programs. SUMMARY OF ARGUMENT Few issues of public policy have plagued national and state government as profoundly or as consistently as low farm prices.’ Since at least the 1930s, Congress and the States have attempted innumerable remedies, from produc- tion restrictions, to antitrust exemptions, to price supports. Fields that were already planted have been “plowed up” and millions of newborn pigs and hundreds of thousands of sows killed to drive up prices; taxpayers have shouldered the cost of hundreds of billions of dollars of farm subsidies; and the Government has taken the extraordinary step of paying farmers not to farm. As discussed more fully below, the problem of low farm prices has persisted in part because most agricultural com- modities, unlike many other goods, come from a very large number of relatively small producers and are undifferenti- ated between producers. In 2002, for example, there were more than two million farms in the United States, each with ' The parties in this case have consented to the filing of this brief. No counsel for a party authored this brief in whole or in part, and no per- son or entity, other than the Forum, its members, or its counsel, made a monetary contribution to the preparation or submission of this brief. ? See, e.g., Jon Lauck, After Deregulation: Constructing Agricultural Policy in the Age of “Freedom To Farm,” 5 Drake J. Agric. L. 3, 15 (2000) (In the 1960 presidential election, Senator John Kennedy declared that low farm prices were “our no. 1 . . . domestic problem.”). 2 average sales of less than $100,000.’ As a result—unlike the IBMs or GMs of the world—the average avocado, cherry, or grape farmer cannot possibly engage in the costly — and promotien necessary to increase overall consumer de- mand (and thus price) for his or her product. Experience and economic theory show, moreover, that voluntary efforts to band together to do so are destined to fail. The average avocado farmer, for example, has no incentive to advertise individually, or to join with other farmers to do 80, when the benefit of his or her expenditure or contribution will be shared over the thousands of other growers—many of whom may have themselves opted not to contribute. Mandatory agricultural research and promotion pro- grams, like that at issue in this case, represent a singular success in addressing this “collective action problem” and the plight of small farms throughout the country. There are more than one hundred existing federal and state mandatory commodity research and promotion programs, which a take, among other things, health and agriculture wongenr foreign market access initiatives, consumer education, an generic advertising—all designed to increase demand or to improve production for particular agricultural negra And they have had extraordinary success in doing so. In- deed, in some cases, the return on investment to each par- ticipant is as high as $26 for every dollar paid. No other farm policy has come close to achieving this level of success. The Eighth Circuit’s decision jeopardizes these pro- grams and the countless farm-related jobs that depend on the market demand they generate. Perhaps most disturb- ingly, the approach adopted by the Eighth Circuit would im- pose on Congress (and, presumably, state legislatures) sage gle, judicially defined recipe for agricultural promotion: Congress wants to expand demand for an agricultural com- modity by imposing mandatory assessments on growers that * See : : , vol. 1, ch. 1, tbl. 1, available at See 2002 Census of Agriculture, vol. 1, ‘ http://www.nass.usda.gov/census/census02/volume 1/us/st99_1_002_002.pdf (last visited Aug. 20, 2004). 3 are then used for advertising (along with other demand- increasing activities), it must first implement a “broader col- lective enterprise” in which growers’ “freedom to act inde- pendently” is “constrained by [a] regulatory scheme,” as in Glickman v. Wileman Bros, & Elliott, Inc., 521 U.S. 457 (1997). See United States v. United Foods, 533 U.S. 405, 412 (2001) (quoting Wileman, 521 U.S. at 469). Under the rea- soning of the Court of Appeals, any other program of this sort is per se unconstitutional. Nothing in the First Amendment or this Court’s precedents compels this re- markable conclusion. First, contrary to the Court of Appeals’ conclusion, the First Amendment does not even apply to the mandatory funding of speech by a government-established entity that delivers a message defined by the government. Second, even if the First Amendment applies, it does not impose any such per se rule. Rather, because mandatory commodity promotion programs bar no speech, but simply provide additional information to consumers; do not compel any speech, but only the payment of money; and do not con- vey an ideological message, but only commercial advertise- ments, the most stringent level of scrutiny that can possibly apply is intermediate scrutiny. Given the opportunity, the vast majority of federal and state commodity research and promotion programs will be able to show that they effec- tively further an important government interest in support- ing agricultural industries and helping to overcome tne col- lective action problem, and that they do so in a narrowly tai- lored manner. Finally, many mandatory commodity programs are also constitutional under the “germaneness” test articulated in Abood v. Detroit P-«rd of Education, 431 U.S. 209 (1977), because unlike the s.and-alone advertising program at issue in United Foods, they use advertising as part of a broader effort to expand demand—including through health and ag- ricultural research and foreign market access efforts. Regardless of how any particular program might fare if subjected to the proper constitutional scrutiny, the Court of 4 i i i important federal Appeals plainly erred in setting aside an impo mi hove because it concluded that the program was not accompanied by a collectivization of the industry. ARGUMENT NTRIBUTIONS FOR COMMODITY PROMO- Te PROGHAMS DO NOT IMPLICATE PRODUCERS’ FIRST AMENDMENT RIGHTS BECAUSE THE SPEECH FUNDED IS THAT OF THE GOVERNMENT. A. The Eighth Circuit’s determination that the gov- ernment-speech doctrine does not apply in a case peat compelled funding of speech (see Pet. App. 17a-18a) S| e be rejected. This Court has recognized that it is “inevi : that funds raised by the government will be spent for = and other expression” and that the government may pay for that speech with “taxes or other exactions binding - pro- testing parties.” Board of Regents of Univ. of Wis. et v. Southworth, 529 U.S. 217, 229 (2000). Thus, the Court wo made clear that citizens compelled to fund ngage ie speech have no right under the First Amendment to : ~ to funding that speech. See Keller v. State Bar of Ca 2 “ U.S. 1, 12-13 (1990). The advertising of most comm vd promotion programs is government speech because the boards that run the ads are instrumentalities of the sap ment under this Court’s precedent and the messages they deliver are defined by Congress and the state legislatures. This Court’s decision in Lebron v. National erin Passenger Corp. makes clear that where “the nascar creates a corporation by special law, for the furtherance : governmental objectives, and retains for itself permanen + The Court of Appeals relied on Southworth in holding that the gov- ernment-speech doctrine does not apply to a case involving the = funding of speech. See Pet. App. 17a-18a. But aero — a i i hworth, too, involv e ma actly the opposite conclusion. Sout . henge oped i f speech, and although the government-speec po the Court said it did not only because “{t)he University ha{d] disclaimed that the speech is its own.” 529 U.S. at 229. 5 authority to appoint a majority of the directors of that cor- poration, the corporation is part of the Government for pur- poses of the First Amendment.” 513 U.S. 374, 400 (1995). Here, the Court of Appeals concluded that Lebron was inap- plicable because Amtrak, which was resisting a holding that its billboards were public fora, “argued that it was not part of the government,” whereas “in a government speech case the defendant typically argues that it is part of the govern- ment and therefore immune from content-related First Amendment scrutiny.” Pet. App. 18a n.5. The court did not explain, however, why this difference matters, unless the governing rule is that an entity’s governmental status must always be resolved against the entity in favor of a First Amendment challenge. But that cannot be the law. To the contrary, if an entity is a part of the government that cannot make content-based distinctions when it creates a public fo- rum for private speech, then surely that same entity remains part of the government when it is itself the speaker.” In the present context, moreover, not only is the speaker a government-created entity, with government- appointed members, but the message that it conveys is also defined by the government. The Beef Act, for example, like most commodity promotion programs, defines the speech at issue: it must be about beef—speech about politics, social issues, and anything else is not authorized—and it must con- vey a specific message about beef, namely, that consumers should buy more beef. See 7 U.S.C. §§ 2902(13), 2904(10). A commodity promotion board’s speech, in other words, is fun- damentally different from the political and ideological speech of the State Bar in Keller, which was not specified by the government and which this Court held lawyers could not be compelled to subsidize. See 496 U.S. at 13-16. For these * The fact that members of the Beef Board are nominated by state cattle associations before being appointed by the Secretary of Agriculture does not change this conclusion. Indeed, the same was true in Lebron, where the President was required to make most of his appointments from lists submitted by various groups. See 513 U.S. at 385. 6 reasons, here, unlike in Keller, there is little doubt that the government is “accountable to the electorate and the politi- cal process for its advocacy.” Southworth, 529 U.S. at 235. As with all other government speech, those who disagree with the message can blame Congress. B. Day-to-day oversight of a commodity program by another government agency is not required for the govern- ment-speech doctrine to apply. The lower courts have dis- agreed about whether the Secretary of Agriculture per- forms any meaningful oversight of the Beef Program and have given this question significant weight in their determi- nations whether the Beef Program constitutes government speech. Compare Livestock Mktg. Ass'n v. USDA, 207 F. Supp. 2d 992, 1005-1006 (D.S.D. 2002), with Charter v. USDA, 230 F. Supp. 2d 1121, 1187-1138 (D. Mont. 2002). That inquiry, however, is wholly beside the point. If an entity like the Beef Board is itself a governmental entity that is required to deliver a government-defined mes- sage, then its speech is necessarily government speech, and oversight by a different government agency is irrelevant. This Court did not ask in Lebron, for example, whether the government-appointed directors were subject to day-to-day oversight by some other government official. Any other approach would force courts to make difficult, arbitrary de- terminations regarding precisely how much government oversight is sufficient for a particular program. For exam- ple, is attendance by a government representative at most but not all board meetings sufficient? If the government representative attends but plays no active role, is the de- fense still viable? This Court should avoid opening the door for further litigation wrestling with minutiae of this nature by holding that the advertising conducted by commodity promotion boards pursuant to a specific mandate by Con- ° To the contrary, the Court recognized that “the directors of Am- trak, unlike commissioners of independent regulatory agencies, are not, by the explicit terms of the statute, removeable by the President for cause, and are not impeachable by Congress.” Lebron, 513 US. at 398. Poti 7 gress or a State is government speech that does not impli i t impli- cate producers’ First Amendment rights. Il. A MANDATORY COMMODITY PROMOTION PROGRAM IS CONSTITUTIONAL IF IT SATISFIES I pena . NTERMEDIATE SCRU- A. It is long settled that a law is not unconstitutional merely because it implicates First Amendment rights. See eg., United States v. O'Brien, 391 U.S. 367, 376 (1968) Rather, before a court may declare a law unconstitutional. it must consider whether the law serves a sufficiently impor- tant governmental interest and does so with sufficient preci- sion. Even content-based restrictions on core political speech and prior restraints on speech can survive constitu- tional scrutiny in some circumstances. See Burson v. Free- man, 504 U.S. 191, 211 (1992); Near v. Minnesota, 283 U.S. 697, 716 (1931). Thus, even if a particular commodity promo- tion program implicates the First Amendment—because it does not involve government speech and is not mere “eco- nomic regulation” under the Court’s decision in Glickman v Wileman Bros. & Elliott, Inc., 521 U.S. 457, 474-475 (1997) — the program must be upheld if it survives th stitutional scrutiny. e applicable con- Rather than apply this well-established framework to the Beef Program, the Court of Appeals held that it was not required “to engage in such a line-drawing exercise” because this Court had already decided in United Foods that any mandatory commodity promotion program that is not part of a broader regulatory scheme is per se unconstitutional. See Pet. App. 26a. United Foods, of course, holds no such thing. To the contrary, the Court was unmistakably clear in stating “we ...do not consider whether the Government's interest could be considered substantial for purposes of the Central Hudson test.” 533 U.S. at 410. The notion that the Court nonetheless went on to decide this issue, not only with re- spect to the mushroom program, but also with respect to every other commodity promotion program—and did so in the context of reviewing whether the district court had 8 properly granted summary judgment in the Government’s favor—is unfounded. B. A law requiring producers of a commodity to fund generic advertising for that commodity is subject to, at most, intermediate scrutiny because such a law only mini- mally impinges on the First Amendment rights of produc- ers—if it does so at all. Six members of this Court have al- ready indicated that a mandatory commodity promotion program is constitutional if it passes the intermediate scru- tiny test established under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). In Wileman, Justice Souter, Chief Justice Rehnquist, and Jus- tice Scalia said (in dissent) that they would have applied in- termediate scrutiny to commodity promotion programs. See 521 U.S. at 492-493 (Souter, J., dissenting). And in United Foods, Justices Breyer, O’Connor, and Ginsburg indicated that if the mushroom program were subject to First Amendment scrutiny at all, they would apply only interme- diate scrutiny and uphold the program. See 533 U.S. at 429 (Breyer, J., dissenting). To be sure, in neither Wileman nor United Foods did a majority apply intermediate scrutiny, but in neither case was it necessary for the Court to do so. In Wileman, the Court held that the tree-fruit marketing program did not even implicate the First Amendment. The Court questioned in a footnote why the Court of Appeals in that case had started its analysis with Central Hudson rather than “apply Abood’s ‘germaneness’ test,” Wileman, 521 U.S. at 474 n.18, but the Court never stated that a program that passed the higher Central Hudson standard would nonetheless be un- constitutional. Similarly, the Court in United Foods had no reason to address whether intermediate scrutiny was appli- cable. United Foods principally addressed and rejected the Government’s contention that the mushroom program was constitutional as economic regulation under the Court’s deci- sion in Wileman. See 533 U.S. at 411-413. The Court ex- pressly noted that the Government did “not rely upon Cen- tral Hudson to challenge the Court of Appeals’ decision,” 9 533 U.S. at 410, and the Court therefore never addressed whether a commodity promotion program could be constitu- tional based on the fact that it serves important governmen- tal purposes, independent of any connection to a broader regulatory scheme. Neither case, therefore, forecloses the application of intermediate scrutiny. See Waters v. Chur- chill, 511 U.S. 661, 678 (1994) (plurality opinion of O’Connor J.); Webster v. Fall, 266 U.S. 507, 510 (1925). ) In any event, because mandatory commodity promotion programs are particularly unikely to impose significant burdens on free speech, no standard more demanding than intermediate scrutiny should apply. First, commodity promotion programs involve - pelled funding of only amare nonideological, ce. cial speech. Whatever the level of scrutiny applicable to a restriction on commercial speech that deprives consumers of truthful, nonmisleading information, see 44 Liquormart, Inc v. Rhode Island, 517 U.S. 484, 501-504 (1996) (plurality opin. ion of Stevens, Kennedy, and Ginsburg, JJ.); id. at 517 (Scalia, J. concurring in part and concurring in judgment); id. at 518 (Thomas, J., concurring in part and concurring in judgment), this Court’s precedents are clear that a regula- tion of commercial speech that results in more, rather than less, speech implicates First Amendment rights to only a limited degree. As a plurality of the Court noted in 44 Li- quormart, the principal reason commercial speech even war- rants First Amendment protection is because consumers have an interest in receiving product information. See id. at 496 (plurality opinion of Stevens, Kennedy, Souter, Gins- burg, JJ.). A law that provides consumers with more infor- mation therefore should be analyzed differently than a law that limits the flow of information. In Zauderer v. Office of Disciplinary Counsel, 471 U.S 626 (1985), for example, the Court applied highly deferential review in upholding a requirement that an attorney’s adver- tisement disclose that clients must pay costs in contingent fee cases because it was “reasonably related to the State’s interest in preventing deception of consumers.” Jd. at 651. 10 Although the State’s interest in that case focused on pre- venting consumer deception, see United Foods, 533 U.S. at 416, the Court made clear that “[bJecause the extension of First Amendment protection to commercial speech is justi- fied principally by the value to consumers of the information such speech provides, . . . [a person’s] constitutionally pro- tected interest in not providing any particular factual infor- mation in his advertising is minimal.” 471 U.S. at 651. Second, laws that regulate the payment of money, even if used for speech, tread less heavily on free-speech rights than laws that regulate speech directly. The payment of money simply is not the equivalent of speech. As the Court recently explained in upholding a ban on corporate campaign contributions, “restrictions on political contributions have been treated as merely marginal speech restrictions subject to relatively complaisant review under the First Amend- ment, because contributions lie closer to the edges than to the core of political expression.” FEC v. Beaumont, 539 U.S. 146, 162 (2003) (internal quotation omitted). For this reason, the Court has held that campaign contribution limits are not subject to the “strong presumption against constitu- tionality of the sort often thought to accompany the words ‘strict scrutiny.”” McConnell v. FEC, 124 S. Ct. 619, 656 (2003). By the same token, laws that compel (rather than limit) the funding of speech implicate First Amendment rights to a lesser degree than laws that actually compel speech itself. Indeed, this Court’s cases make clear that laws compelling funding of speech do not trigger exacting scrutiny. In Abood, for example, before even reaching the germaneness inquiry, the Court invoked a relaxed form of scrutiny— citing “the legislative assessment of the important contribu- tion of the union shop to the system of labor relations estab- lished by Congress”—in reaffirming that an employee may be compelled to pay fees to a union even if the employee has ideological objections to the union’s collective bargaining ac- 11 tivities. 431 U.S. at 222;’ see also Lathrop v. Donohue, 367 U.S. 820, 843 (1961) (Wisconsin “might reasonably believe” that compelled payment of bar dues by all lawyers in the State served “legitimate interests in raising the quality of professional services”). If an employee can be compelled to pay for ideological speech relating to collective bargaining in order serve the important governmental interest in labor policy, then surely a farmer can be compelled to pay for commercial speech in order to serve the equally important governmental interest in agricultural policy. C, The Court of Appeals erred in concludin U nited Foods prevented it from undertaking an ee te determination whether the Beef Act can be sustained under intermediate scrutiny. Because the Eighth Circuit has not considered the application of intermediate scrutiny, this Court, rather than address the issue in the first instance should reverse the decision of the Court of Appeals and re- mand the case for application of that test. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (remand- ing for application of the proper level of scrutiny). Ill. MOST MANDATORY COMMODITY PROMOTION WILL SURVIVE INTERMEDIATE SCRUTINY. — Under intermediate scrutiny, a law will be upheld against constitutional challenge if “it furthers an important or substantial governmental interest,” “the governmental interest is unrelated to the suppression of free expression,” and if the restriction “is no greater than is essential to the furtherance of that interest.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994) (internal quotation omitted). . The “germaneness” inquiry of Abood and its i nes progeny is used to de- termine whether activities outside of core collective bargaining activities ~ be funded with mandatory dues. See, e.g., Lehnert v. Ferris Faculty ss'n, 500 U.S. 507, 519 (1991). The separate determination, initially pre by the Court in Railway Employees’ Department v. Hanson 351 U.S. 225 (1956), and acknowledged in Abood, that compelled funding of ive bargaining is constitutionally justified, entailed an application of a relaxed form of intermediate scrutiny. See Abood, 431 U.S. at 222. 12 “To satisfy this standard, a regulation need not be the least speech-restrictive means of advancing the Government’s interests.” Jd.; see also Board of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989). Whether a particular commodity promotion program survives First Amendment scrutiny is a fact-intensive in- quiry that must be made on a case-by-case basis. See Turner Broad., 512 U.S. at 664-665. But most, if not all, mandatory commodity promotion programs—even if they involve only or primarily generic advertising—should pass this test. Such programs further an important governmental interest in helping to sustain important agricultural industries and overcoming the structural impediments that prevent farm- ers from engaging in significant demand-expanding activ- ity—either individually or through voluntary collective ac- tion. Indeed, in United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), the Court of Appeals for the Third Circuit con- cluded that the Beef Program survived even strict scrutiny precisely because supporting the beef industry is a compel- ling governmental purpose, the Program is ideologically neutral, and the mandatory nature of the Program is neces- sary to combat the free-rider problem. See id. at 1133-1137. More recently, in a thorough and well-reasoned opinion, the California Supreme Court held that, under the State Constitution (which is generally more protective of free- speech rights than the United States Constitution), commod- ity promotion programs are subject to only intermediate scrutiny. See Gerawan Farming, Inc. v. Kawamura, 90 P.3d 1179, 1192 (Cal. 2004). In considering the application of in- termediate scrutiny, the court (1) held that “the objective of maintaining and expanding markets for agricultural prod- ucts, thereby ensuring the viability of California agriculture, is a substantial objective,” id. at 1193; (2) rejected the argu- ment that “the government’s interest is not substantial sim- ply because the [California Marketing Act] has delegated the decision whether to create a marketing program in a given sector of the agricultural economy to the agricultural pro- ducers themselves,” id.; (3) accepted the State’s position that 13 if the generic advertising at issue is “an efficacious means of significantly improving the sale of agricultural products in this state,” then the challenged program directly advances the government’s interests, id.; and (4) rejected the plain- tiffs argument that a program funded from producer as- sessments is always unconstitutional because it could be funded from general tax revenues, see id. at 1194. This Court, if it rejects the government-speech defense and ad- dresses the application of intermediate scrutiny, should ap- ply a similar analysis under the federal Constitution. A. Mandatory Commodity Promotion Programs Fur- ther = ae yc ern Interests in Sup- Market Failures. an ee . Agriculture is of fundamental importance mies of the United States and satiate oe aoe over two million farms in the United States produced $200 billion worth of goods, and farm-related employment ac- counted for approximately 26 million jobs—over 15% of the total jobs in the United States.’ For California, which has the largest agricultural production of any State in the Na- tion, the total amount of sales of agricultural products was well over $25 billion in 2002, there were almost 100 million acres of farmland that year, and in 2000, farm-related em- ~~ accounted for 15.1% of the State’s over 19 million obs. 8 See 2002 Census of Agriculture, vol. 1, ch . , Vol. 1, ch. 1, tbl. 1, available at http://ww.nass.usda.gov/census/census02/volume l/us/st99_1 002 002.pdf (last visited Aug. 20, 2004); Economic Research Service, USDA, State Fact Sheets, available at http://www . -vkdien ie, ae ” See 2002 Census of Agri griculture, vol. 1, ch. 2, tbl. 2, available a http://www.nass.usda.gov/census/census02/volume 1/us/st99 2_002_002 at (last visited Aug. 20, 2004); Economic Research Service, USDA State Fact Sheets, available at http://www.ers.usda.gov/StateFacts/CA htm (last visited Aug. 20, 2004) (jobs total for 2001). ) 14 It is clear that given the importance of agriculture to the economy of the United States and various individual States, the governmental interest in supporting the agricul- tural industry is substantial. The California Supreme Court so concluded in Gerawan Farming, see 90 P.3d at 1193, and even the Justices in dissent in Wileman agreed that main- taining and expanding markets for covered commodities are “substantial government interests,” 521 U.S. at 492 (Souter, J., dissenting). Mandatory commodity promotion programs directly advance this governmental interest in two ways: (1) increasing demand for agricultural commodities, and (2) addressing market failures that result in suboptimal spend- ing on agricultural research and promotion. 1. Commodity Promotion Programs Maintain and Expand Agricultural Industries. Maintaining a vibrant and stable agricultural industry is of utmost importance both to the United States and to indi- vidual States. That task, however, is not an easy one. Weather, disease, and pests—uncontrollable and unpredict- able—can drastically affect crop output. Moreover, agricul- tural markets respond poorly to gluts in the market that de- press prices. See Jon Lauck, After Deregulation: Construct- ing Agricultural Policy in the Age of “Freedom To Farm,” 5 Drake J. Agric. L. 3, 5 (2000). “Instead of adjusting supply when prices sink to unsustainable levels, farmers often maintain production levels—believing that they need to op- erate at full-capacity in order to make up for lower prices— or increase their production.” Jd. Indeed, many farmers have turned to new technologies to increase production in an attempt to make up for lower prices. But this effort has been likened to running on a treadmill: “(G)reater produc- tion through more technology . . . compound[s] the low price problem, creating the need for even more productivity 1m- provements.” Jd. at 5-6. Furthermore, the sheer number of farmers, their small relative size, and the perishability of —~