Amicus Curiae Brief — Nebraska Cattlemen, Inc. v. Livestock Marketing Assn.

[Supreme Coun, US)

FILED

AUG 2 8 2004

OFFICE OF THE CLERK

Nos. 03- (" & 03- @

IN THE

Supreme Court of the United States

;

ANN VENEMAN,

Secretary United States Department of Agriculture, et a/.,

Petitioners,

- and - |

NEBRASKA CATTLEMEN, INC., et al.,

Petitioners,

v.

LIVESTOCK MARKETING ASSOCIATION, et ai.,

Respondents.

On WrRiTs OF CERTIORARI TO THE

Unitep STATES Court OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF STATE OF FLORIDA, DEPARTMENT OF

CITRUS AS AMICUS CURIAE IN SUPPORT

OF PETITIONERS

Barry RICHARD HANK 8. CAMPBELL

Counsel of Record MonTEREY CAMPBELL

M. Hope KEATING Gray RoBINSON

GREENBERG TRAURIG, P.A. Post Office Box 3

101 East College Avenue Lakeland, FL 33802

Tallahassee, FL 32302 (863) 284-2200

(850) 222-6891

Counsel for Amicus Curiae

State of Florida, Department of Citrus

189175 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

l

TABLE OF CONTENTS

Page

Table of Cited Authorities ..................... ii

Interest Of Amicus Curiae State Of Florida,

TR GE GED ow cevvccceenscssvcsees l

Florida’s Interest in the Case at Bar ....... l

Florida’s Interest in the Issue of Compelled

Funding for Generic Advertising ......... 3

ED node ccuctaveccseeenunrs 6

GE, nh tons B60 cess nuwd ses 60 04e0deeuess 7

I. A Compelled Contribution to Fund a Generic

Advertising Campaign is Constitutional

if it is an Integral Part of a Broad Regulatory

Scheme Germane to a Substantial Govern-

EE 00k 0.66 caveercetesesnases 7

II. The Speech Funded by Florida’s Box Tax

Constitutes Government Speech.......... 14

Conclusion ........ binétlanndnaadukianedoteus 23

il

TABLE OF CITED AUTHORITIES

Page

Cases ’

Abood v. Detroit Bd. of Educ.,

431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261

(1977)... pcccccevssccccsesesesueweeuenens 11

Board of Regents of the Univ. of Wis. v. Southworth,

529 U.S. 217, 1208S. Ct. 1346, 146 L. Ed. 2d 193

(2000) .. nc sccccccvcceresvvcvvvvssssees 16, 17, 18

Central Hudson Gas & Elec. Corp. v.

Public Serv. Comm'n,

447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341

6:1) 14

Coca-Cola Co. v. State Dept. of Citrus,

406 So. 2d 1079 (Fla. 1981)... 6... eee ee eee 19, 22

Cochran v. Veneman,

359 F.3d 263 (3d Cir. 2004) ........ cee eee eee 2

Delano Farms Co. v. California

Table Grape Comm'n,

318 F.3d 895 (9 Cir. 2003) ©... . 6. eee eens 2

Downs v. Los Angeles Unified Sch. Dist.,

228 F.3d 1003 (9 Cir. 2000), cert. denied,

532 U.S. 994, 121 S. Ct. 1653, 149 L. Ed. 2d 636

(ZOOL) oc cvcvcvccvccvccvvcccccveseevvnns 15, 16

ill

Cited Authorities

Page

Florida Canners Ass'n v. State Dept. of Citrus,

371 So. 2d 503 (Fla. 2d DCA 1979), aff'd, 406

So. 2d 1079 (Fla. 1981) .................... 21,22

Glickman v. Wileman Brothers & Elliott, Inc.,

521 U.S. 457, 117 S. Ct. 2130, 138 L. Ed. 2d 585

EE EE passim

Hazelwood School Dist. v. Kuhimeier,

484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592

eee ec dascccccceéccccccoces 16

In re Washington State Apple Advertising Comm'n,

257 F. Supp. 2d 1290 (E.D. Wash. 2003) ...... 2

Keller v. State Bar of Cal.,

496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990)

DUPPPPPMEEEEdubGeeeéecceccescceece 11, 12, 13,17

Knights of Ku Klux Klan v. Curators of Univ. of Mo.,

203 F.3d 1085 (8" Cir. 2000), cert. denied,

531 U.S. 814, 121 S. Ct. 49, 148 L. Ed. 2d 18

EE 15

Legal Servs. Corp. v. Velazquez,

531 U.S. 533, 121 S. Ct. 1043, 149 L. Ed. 2d 63

eae sec cecccccccececes 17

Livestock Marketing Ass'n v. United States

Dept. of Agriculture,

335 F.3d 711 (8" Cir. 2003) ................. 16

iv

Cited Authorities

Page

National Endowment for the Arts v. Finley,

$24 US. 569, 118 S. Ct. 2168, 141 L. Ed. 2d 500

CIDDED oc cccccccccccccccccvccssccesccccss 16

Pelts & Skins, LLC v. Landreneau,

365 F.3d 423 (5" Cir. 2004) ........ 6.605 2, 16, 17

Rosenberger v. Rector & Visitors of Univ. of Va.,

$15 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700

(2199S) onc cccccccncccccccrsesccsccccsceess 15, 16

Rust v. Sullivan,

$00 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233

(1D) 2 cc ccccccccccccccecccccsccccess 14, 15, 16

Sligh v. Kirkwood,

237 U.S. 52, 35S. Ct. 501, 59 L. Ed 2d 835 (1915)

Sons of Confederate Veterans, Inc. v.

Commissioner of Va. Dep t of Motor Vehicles,

288 F.3d 610 (4 Cir. 2002) ........- eee eee 14-15

State of Florida, Department of Citrus v.

Graves Bros. Co.,

No. 2D03-2276 (Fla. Dist. Ct. App. 2d 2004) ... 2

Summit Medical Ctr. Of Alabama, Inc. v. Riley,

284 F. Supp. 2d 1350 (M.D. Ala. 2003) ....... 2

Vv

Cited Authorities

Page

United States v. Frame,

885 F.2d 1119 (3d Cir. 1989), cert. denied, 493

U.S. 1094, 110 S. Ct. 1168, 107 L. Ed. 2d 1070

EEE 4:6 405cee6eudeudnesounlcabugiaeeceas 15

United States v. United Foods, Inc.,

533 U.S. 405, 121 S. Ct. 2334, 150 L. Ed. 2d 438

NE atevenndacenedhictcetek sdcece waded passim

Wells v. City & County of Denver,

257 F.3d 1132 (10" Cir. 2001), cert. denied,

534 U.S. 997, 122 S. Ct. 469, 151 L. E. 2d 384

NG Wate du uekdeedees boukscuceusilse.’, 15

Statutes, Rules and Constitutional Provisions

Fe BEE nc ccccccccccccccccececcccnce. 4

FU BOD nc cc ccccccccccccccccesecac 9

PRUE bh bdcekbusencedenGuncesesua: |

Art. IV, § 6, Fla. Const. .............0......... 18

RU, wa cdo vccscecvecececececenec 18

§ 20.02(2), Fla. Stat. ......................... 18

a 18

vi

Cited Authorities

Page

§ 20.055, Fla. Stat. .......--0ee esse eee eee eees 18

§ 581.181, Fla. Stat. ©... .. 660s cere eee eee: 5

§ 581.184, Fla. Stat. ....... 00s eee eee cence: 5

§ 601.10, Fla. Stat. ......-- 00s cece reece eeees 5, 18

§ 601.15, Fla. Stat. .......- 2c eee cece eee eeees 3,4, 5

§ 601.15(2), Fla. Stat. ©... 2... eee eee eee eens 4,19

§ 601.15(2)(a), Fla. Stat. ©... .----- eee eee eee: 5

§ 601.15(2)(b), Fla. Stat. .....-. secre eee e eres 4

§ 601.15(3), Fla. Stat. ©... 0... - 0. eee eee eee eres: 4

§ 601.154, Fla. Stat. ©... 0... 2c eee eee eee eeees 5

§ 601.16, Fla. Stat. .... 0... 0c eee ee eee e ee eeees 6

§ 601.17, Fla. Stat. ......---0eeee cece eeeeeees 6

§ 601.18, Fla. Stat. .......- 00sec cence eee: 6

§ 601.19, Fla. Stat. 2.2.6... eee cece eee neers 6

§ 601.20, Fla. Stat. .......- 0c eee cece ee eeeeees 6

§ 601.21, Fla. Stat. .......- 0c eee cere reer eeees 6

vil

Cited Authorities

Page

PORTO, niisvivickcdedccaccscde: oe

RNC STEN Lesh) OMe 6

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PUTS. Sivnadededad dk cccctecudncn. 6

UR gag 5 Fe A on SN 6

SPD oo ce 6

I ideo ae 8) hs De 5

§ 601.40, Fla. Stat. .......................... 6

URI, covcnenccccdeccccéccccca, 6

§ 601.42, Fla. Stat. .......................... 6

§ 601.43, Fla. Stat. .......................... 6

§ 601.44, Fla. Stat. .......................... 6

POC AD, FOR BO, cc ccccccccccccccccccccece 5

§ 601.51, Fla. Stat. .......................... 6

§ 601.52, Fla.

§ 601.54, Fla.

§ 601.55, Fla.

§ 601.56, Fla.

§ 601.57, Fla.

§ 601.58, Fla.

§ 601.59, Fla.

§ 601.60, Fla.

§ 601.75, Fla.

§ 601.76, Fla.

§ 601.77, Fla.

§ 601.80, Fla.

§ 601.85, Fla.

§ 601.86, Fla. Stat.

§ 601.87, Fla. Stat.

vill

Cited Authorities

.) CL eReREPRBRLSA2ABRBReEB BRA REE SSS EG

''T’ PEREREREBEREBRBREBARBREABEBRE ZAR ZSASE AE SL.

eeeeeseseseevaeveeeeeseeoeseesnens e999

eeeeoeseseeoeeeeseeeeeeeeee oe

eeeeeveeeneoeeeee eevee eeoeoee2e008

ix

Cited Authorities

Page

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INI od cnuwiuCeesks cdoc ca a 5

UU, onde ed ecclcte 6

PONRUII witeducnckcenvedasocdnass 6

POPOOU PU, ccccccccccccccdccececec, 6

PGI, occnnecicdadcevdoviseces 6

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OMEN kas cncccccdencdescotedvi )

§ GO1.9914, Pla. Stat. 2.0... ccc ccc cece ceece 6

ne 6

l

INTEREST OF AMICUS CURIAE STATE OF

FLORIDA, DEPARTMENT OF CITRUS'

Florida’s Interest in the Case at Bar

The State of Florida, Department of Citrus (“Florida”),

has a vital interest in the case at bar because the outcome has

potential implications reaching far beyond the beef industry.

Florida citrus is an industry that employs over 90,000 people

and represents a $9 billion positive impact on Florida, making

it crucial to Florida’s economic welfare. As consistently

recognized by this and other courts considering the question,

Florida’s interest in protecting and preserving the industry

is paramount. Unless this case is properly analyzed pursuant

to existing United States Supreme Court precedent, Florida’s

citrus advertising campaign, which is vitally important to

the economic welfare of the State of Florida and its citrus

industry, may be jeopardized.

In the matter at hand, the Court has an opportunity to

clarify confusion created by lower courts that have seized

upon the notion of a “collectivized” industry as that term is

used by this Court in United States v. United Foods, Inc.,

533 U.S. 405, 121 S. Ct. 2334, 150 L. Ed. 2d 438 (2001) and

Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457,

117 S. Ct. 2130, 138 L. Ed. 2d 585 (1997), as the sole route

1. Pursuant to Rule 37.6 of the Supreme Court Rules, amicus

curiae states that counsel for a party has not authored this brief in

whole or in part and no person or entity, other than amicus curiae,

has made a monetary contribution to the preparation or submission

of this brief. All parties to this proceeding have provided written

consent to the filing of this brief and such written consents are filed

herewith.

2

to constitutionality.? The issue in United Foods and Glickman

was not collectivization but regulation. Included among the

courts that have misapprehended United States Supreme

Court precedent in this regard, and also as to what constitutes

government speech, is a Florida trial court whose decision

regarding Florida’s citrus advertising campaign is currently

on appeal.’

As amicus curiae in this case, Florida also seeks to call

to the attention of the Court that the Florida citrus industry

has circumstances which are unique and different from the

facts reviewed in United Foods and its progeny,’ including

the matter at hand. No matter what the Court’s decision in

this case, it is Florida’s endeavor to bring to the Court’s

attention the need to include language in its decision

protecting governmental entities such as Florida that fall

squarely within the protections afforded by United Foods

and Glickman.

Also, the case at bar presents an opportunity for the Court

to ameliorate confusion and clarify the difference between

generic agricultural assessment programs which fund speech

by non-governmental or quasi-governmental industry groups

2. See, e.g., Pelts & Skins, LLC v. Landreneau, 365 F.3d 423

(5" Cir. 2004); Cochran v. Veneman, 359 F.3d 263 (3d Cir. 2004);

Delano Farms Co. v. California Table Grape Comm'n, 318 F.3d 895

(9" Cir. 2003); Summit Medical Ctr. of Alabama, Inc. v. Riley, 284

F. Supp. 2d 1350 (M.D. Ala. 2003); Jn re Washington State Apple

Advertising Comm'n, 257 F. Supp. 2d 1290 (E.D. Wash. 2003).

3. State of Florida, Department of Citrus v. Graves Bros. Co.,

No. 2D03-2276 (Fla. Dist. Ct. App. 2d 2004).

4. See note 2, supra.

3

for the collective benefit of contributing producers, and

advertising disseminated by the government itself as part of

an overall regulatory scheme which advances a substantial |

governmental interest. ;

Florida’s Interest in the Issue of Compelled Funding for

Generic Advertising

It is in Florida’s interest to take necessary measures to

maintain the health of the citrus industry and to maintain a

favorable atmosphere for its continued prosperity in order to

protect the economic welfare of the State of Florida as a

whole. This end is achieved by regulating the quality of

Florida’s citrus and as such, Florida has in place a complex,

pervasive and expansive regulatory scheme, the purpose of

which is to ensure and promote the high quality and

wholesomeness of Florida citrus products.

Florida’s history of regulating the citrus industry extends

back to 1935 when the Florida Legislature enacted what is

now Chapter 601 of the Florida Statutes, known as the Florida

Citrus Code. Therein, the Department of Citrus was created

to carry out the Citrus Code’s provisions. The Department

of Citrus is headed by the Florida Citrus Commission, which

is appointed by the Governor and confirmed by the Florida

Senate.

The Legislature established as part of Florida’s broader

regulatory scheme an excise tax under Section 601.15, Florida

Statutes (2003), commonly referred to as Florida’s

“Box Tax.” The tax is assessed against every box of citrus

that enters the primary channel of trade in Florida. A portion

of the revenue generated by the tax is used to fund a

legislatively mandated advertising campaign, through which

4

information is disseminated to the consuming public

regarding the quality of Florida’s citrus and the lengths to

which Florida goes to ensure the quality of its citrus and to

ensure that the State’s high standards are consistently and

reliably maintained.°

5. By enacting Section 601.15, Florida Statutes (2003), the

Florida Legislature mandated an advertising campaign, to be

conducted as follows: “The Department of Citrus shall plan and

conduct campaigns for commodity advertising, publicity, and sales

promotion, and may conduct campaigns to encourage noncommodity

advertising, to increase the consumption of citrus fruits and may

contract for any such advertising, publicity, and sales promotion

service.” § 601.15(2), Fla. Stat. (2003). The Legislature included in

the statute a chart for calculating the amount of the tax. § 601.15(3),

Fla. Stat. (2003). To accomplish its legislative mandate, the

Department of Citrus expressly is empowered and obligated to

promote the use of a “distinctive and suggestive trade name .. . to

advertise Florida citrus,” § 601.15(2)(b), Fla. Stat. (2003), and to

disseminate information regarding Florida citrus as follows:

1. Citrus fruits and the importance thereof in preserving

the public health, the economy thereof in the diet of the

people, and the importance thereof in the nutrition of

children;

2. The manner, method, and means used and employed

in the production and marketing of citrus fruits and

information relating to laws of the state regulating and

safeguarding such production and marketing,

3. The added cost to the producer and dealer in

producing and handling citrus fruits to meet the high

standards imposed by the state that ensure a pure and

wholesome product,

4. The effect upon the public health which would result

from a breakdown of the Florida citrus industry or any

part thereof,

(Cont'd)

-

P

;

|

;

7

5

The advertising campaign is only one component of,

though essential to, a comprehensive regulatory scheme.

Indeed, the regulatory scheme touches upon every aspect of

the industry, ensuring that Florida’s high standard for its citrus

is safeguarded, including: advertising (§ 601.15, Fla. Stat.);

production, marketing and price stabilization; (§ 601.154,

Fla. Stat.); boxing (§ 601.85-88, Fla. Stat.); disease control

($§ 581.181, 581.184, Fla. Stat.); dyes or coloring

(§§ 601.75-77 & 601.80, Fla. Stat.); canning and

concentrating (§ 601.36, Fla. Stat.); fertilizing (§ 601.92,

Fla. Stat.); harvesting (§ 601.10, Fla. Stat.); grading

(§ 601.45, Fla. Stat.); inspections and seizure of immature

(Cont’d)

5. The reasons why producers and dealers should receive

a reasonable return on their labor and investment:

6. The problem of furnishing the consumer at all times

with an abundant supply of fine quality citrus fruits at

reasonable prices;

7. Factors of instability peculiar to the citrus fruit

industry, such as unbalanced production, the effect of

weather, the influence of consumer purchasing power,

and price relative to the cost of other items of food in

the normal diet of people, all to the end that an intelligent

and increasing consumer demand may be created;

8. The possibilities with particular reference to increased

consumption of citrus fruits; and

9. Such other, further, and additional information which

tends to promote increased consumption of citrus fruits

and which fosters a better understanding and more

efficient cooperation among producers, dealers, and the

consuming public.

§ 601.15(2)(a), Fla. Stat. (2003).

6

or unwholesome fruit (§§ 601.27-29, 601.44, 601.54,

Fla. Stat.); juicing and the use of sweeteners (§§ 601 9914

& 601.9916, Fla. Stat.); labeling (§§ 601.9905, 601.9907-

9909, 601.9913, Fla. Stat.); licensing (§§ 601.55-60, Fla.

Stat.); maturity standards (§§ 601.16-25, Fla. Stat.);

packaging (§§ 601.40-42, Fla. Stat.); shipping (§ 601.85,

Fla. Stat.); testing (§§ 601.24, 601.25, 601.43, 601.96,

Fla. Stat.); and transportation (§§ 601.51-52, 601.731,

Fla. Stat.).

The costs associated with the comprehensive regulatory

scheme have exceeded $80 million annually, of which the

generic advertising campaign expenditure is a small fraction.

The regulatory scheme is designed to ensure that the quality

of Florida’s citrus remains at the highest level. The statutes

and regulations implementing it are intended to establish

Florida citrus products as the preeminent standard of quality,

similar to French and California wines. The advertising

campaign is ancillary to the broader regulatory scheme, and

necessary for its success. It is designed to maintain strong

public demand for citrus products identified with the State

of Florida.

SUMMARY OF ARGUMENT

Controlling United States Supreme Court precedent

establishes that compelling contributions to fund an

advertising campaign is constitutional when the contribution

is part of a broader regulatory scheme that is germane to a

substantial governmental interest. United Foods, 533 US.

at 415-417, 121 S. Ct. at 2340-41 (holding unconstitutional

an advertising fee not connected with any regulatory scheme);

Glickman, 521 U.S. at 458-59, 117 S. Ct. at 2132-33

(upholding an advertising fee that was one part of a pervasive

regulatory scheme). The issue is not collectivization but

.

regulation. Even if the Court concludes that the case at bar

should be affirmed, it should tailor its decision to carve out

governmental entities, such as Florida, which have extensive

regulatory schemes that clearly fall within the protective

ambit of United Foods and Glickman.

Also, advertising funded by state taxes, such as Florida’s

Box Tax, is patently government speech where such

advertising is disseminated by a government entity and the

government entity exercises complete authority, control, and

responsibility for the message conveyed, especially where

the message conveyed is part of an overall regulatory scheme

which advances a substantial governmental interest.

ARGUMENT

I. A Compelled Contribution to Fund a Generic

Advertising Campaign is Constitutional if it is an

Integral Part of a Broad Regulatory Scheme Germane

to a Substantial Governmental Interest

In Glickman, this Court upheld an assessment imposed

against growers, handlers and processors of California tree

fruits under marketing orders promulgated by the Department

of Agriculture. 521 U.S. at 477, 117S. Ct. at 2142. The funds

collected were used to pay for the expenses associated with

administering the orders, “including specific projects

undertaken to serve the economic interests of the cooperative

producers,” “joint research and development projects,”

and “generic advertising” of California nectarines, plumbs

and peaches. /d. at 460-61, 117 S. Ct. at 2134.

In determining the constitutionality of the assessment,

the Court “stress[ed] the importance of the statutory context”

in which the assessment arises, as follows:

California nectarines and peaches are marketed

pursuant to detailed marketing orders that have

displaced many aspects of independent business

activity that characterize other portions of the

economy nm *vhich competition is fully protected

by the antitrust laws. The business entities that

are compelled to fund the generic advertising at

issue in this litigation do so as a part of a broader

collective enterprise in which their freedom to act

independently is already constrained by the

regulatory scheme. It is in this context that we

consider whether we should review the

assessments used to fund collective advertising,

together with other collective activities, under the

standard appropriate for the review of economic

regulation or under a heightened standard

appropriate for the review of First Amendment

issues.

Id. at 469, 117 S. Ct. at 2138. The Court, observing that its

prior decisions “provide affirmative support for the

proposition that assessments to fund a lawful collective

program may sometimes be used to pay for speech over the

objection of some members of the group,” id. at 472-73, 117

S. Ct. at 2140, concluded that:

Generic advertising is intended to stimulate

consumer demand for an agricultural product in a

regulated market. That purpose is legitimate and

9

consistent with the regulatory goals of the overall

Statutory scheme.

Id. at 476, 117 S. Ct. at 2141.

The Court revisited the issue in United Foods, reviewing

a First Amendment challenge to marketing orders

promulgated by the Department of Agriculture under the

Mushroom Promotion, Research, and Consumer Information

Act. The purpose of the Act was to maintain and expand

existing markets and uses of mushrooms, and to improve

Americans’ eating habits and benefit the environment.

7 U.S.C. § 6101. The Act allowed the department to fund

those efforts by imposing assessments on mushroom growers.

7 U.S.C. § 6104(g).

Observing that the department used the collected money

almost exclusively for generic advertising, 533 U.S. at 409,

121 S. Ct. at 2337, the Court determined that the marketing

orders violated First Amendment protections, distinguishing

the mushroom orders there at issue from the marketing orders

upheld in the earlier Glickman decision, as follows:

The program sustained in Glickman differs from

the one under review in a most fundamental

respect. In Glickman the mandated assessments

for speech were ancillary to a more comprehensive

program restricting marketing autonomy. Here, for

all practical purposes, the advertising itself, far

from being ancillary, is the principal object of the

regulatory scheme.

533 U.S. at 411-12, 121 S. Ct. at 2338-39. The Court in

United Foods furthermore explained that, whereas in

10

Glickman the growers’ “mandated participation in an

advertising program with a particular message was the logical

concomitant of a valid scheme of economic regulation,”

in United Foods, “almost all of the funds collected under the

mandatory assessments are for one purpose: generic

advertising.” Jd. at 412, 121 S. Ct. at 2339. In effect,

“the principal object” of the compelled contribution is the

advertising itself, and is not “germane to a purpose related

to an association independent from the speech itself.”

Id. at 415, 121 S. Ct. at 2340-41.

Essentially, whereas in Glickman the assessments used

to finance commercial speech were but a part of a more

comprehensive regulatory program, in United Foods the

advertising was the whole point of the regulation, giving rise

to a First Amendment challenge. Finding that “it is only the

overriding associational purpose which allows any compelled

subsidy for speech in the first place” and that no such

purpose existed in the context of the mushroom marketing

order, the Court determined that the assessments violated

First Amendment protections. /d. at 413, 417, 121 S. Ct. at

2340-41.

The precedential value of Glickman is thus neither

eliminated nor emasculated by the Court’s subsequent

decision in United Foods. Rather, the language of United

Foods identifies a First Amendment boundary between

compelled contributions for advertising under a regulatory

scheme aimed exclusively at such advertising and similar

contributions under more expansive regulatory programs.

According to the Court, the former deserves protection, while

the latter does not. In short, the Court’s decision in

United Foods therefore does not represent a significant retreat

from the earlier-established deference granted to a

:

1]

governmental regulatory scheme compelling commercial

speech.

Both Glickman and United Foods relied upon this Court’s

body of First Amendment decisions most prominently set

forth in Keller v. State Bar of California, 496 U.S. 1, 110

S. Ct. 2228, 110 L. Ed. 2d 1 (1990), and Abood v. Detroit

Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed.

2d 261 (1977), both of which required that subsidized speech

be germane to a substantial state interest that justified the

regulation of the industry in the first place.

In Abood, a teachers’ union had a collective bargaining

agreement which maintained a provision that the school

district would be an “agency shop,” so that any teacher who

refused to join the union was required to pay a “service charge

equal to the regular dues” paid by union members. 431 U.S.

at 212,97 S. Ct. at 1788. The Court determined that requiring

the union to represent all employees did not violate the

Constitution, but that spending some of the money the

employees were required to contribute on political and

ideological matters unrelated to collective bargaining violated

First Amendment protections. /d. at 235-37, 97 S. Ct. 1799,

1800. Thus, while the Court found no violation with the

teachers being required to pay union dues, the Court found

that the fact that the dues were spent for political purposes

unrelated to the union’s purpose made the mandatory funding

unconstitutional. /d.

In Keller, the Court clarified the Abood rule, explaining

that it requires that activities funded from mandatory dues

must be “germane” to the Purpose for which the compelled

association is justified. 469 U.S. at 13, 110 S. Ct. at 2236.

In Keller, the members of the California State Bar Association

12

alleged that mandatory attorney’s dues constituted compelled

funding of speech in violation of the First Amendment

because the Bar allegedly used the money it collected in dues

to finance lobbying efforts in the state legislature respecting

gun-control and nuclear weapons freeze causes, filing amicus

briefs in pending cases and speaking out against political

candidates. Jd. at 5, 15-16, 110 S. Ct. at 2231, 2236-37.

The Bar, of course, also examined applicants for admission,

formulated rules of professional conduct, disciplined

members for misconduct, and engaged in other activities to

improve the administration of justice. Id. at 5, 110 S. Ct. at

2231. In determining the constitutionality of the compelled

funding of speech, the Court explained:

[T]he compelled association and integrated bar are

justified by the State’s interest in regulating the

legal profession and improving the quality of legal

services. The State Bar may therefore

constitutionally fund activities germane to those

goals out of the mandatory dues of all members.

It may not, however, fund activities of an

ideological nature which fall outside those areas

of activity.

* * *

Thus, the guiding standard must be whether the

challenged expenditures are necessarily or

reasonably incurred for the purpose of regulating

the legal profession or improving the quality of

the legal services available to the people of the

State.

Id. at 14, 110 S. Ct. at 2236.

13

In beth United Foods and Glickman, the Court equated

the “overriding associational purpose” present with the union

in Abood and the state bar in Keller with the mushroom

and tree fruit marketing orders. United Foods, 533 U.S. at

413-15, 121 S. Ct. at 2339-2341; Glickman, 521 U.S. at 473,

117 S. Ct. at 2140. In Glickman, the Court held that the tree

fruit promotion program was germane to the justified

associational purpose of the broader economic regulation.

In United Foods, however, the Court observed that, unlike

in Glickman, the mushroom marketing orders did not exist

alongside other forms of economic regulation and served only

to fund the advertising. The notable absence of a broader

regulatory scheme in United Foods prompted the

Court’s determination that the compelled funding was

unconstitutional.

The notion of “collectivization,” as used by this Court

in both Glickman and United Foods, merely represents a

characterization of the comprehensive regulatory scheme’s

effect. It is not an essential constitutional criterion. The core

of the Supreme Court’s decision in Glickman, as restated in

United Foods, concerned whether the mandatory assessment

was ancillary to a pervasive regulatory scheme and whether

the funds collected pursuant to the program there under

review were used to further its purpose. In Glickman, of

course, it happens that the subject industry was, or was

authorized to be, collectivized. But the Court’s consideration

of that fact did not alter the constitutional analysis by

adopting “collectivization” as a constitutional requirement.

Any conclusion to the contrary ignores the fact that the

Glickman decision expressly relied upon Keller, in which

the Court had recognized the validity of California’s

compelled bar dues, so long as they were expended on

germane purposes, despite the fact that California lawyers

14

certainly are not economically collectivized. The issue is not

collectivization, but regulation.

Hence, compelling contributions to fund an advertising

campaign is constitutional when the compelled contribution

is part of a broader regulatory scheme that is germane to a

substantial governmental interest. Some industries, such as

Florida’s citrus industry, operate under regulatory schemes

which are far more comprehensive than the non-existent

regulatory scheme considered in United Foods, or the limited

regulatory schemes considered in some post-United Foods

federal district and appellate court decisions.° As such, even

if the Court concludes that the decision below should be

affirmed, it should tailor its decision to carve out entities

such as Florida, that clearly fall within the protective ambit

of United Foods and Glickman.

Il. The Speech Funded by Florida’s Box Tax Constitutes

Government Speech

In United Foods, this Court reserved ruling on the issue

of government speech. 533 U.S. at 416-17, 121 S. Ct. at 2341.

The gravamen of the government speech doctrine is that the

government is free to make value judgments to convey

particular messages without being subject to challenges based

upon the First Amendment. See, e.g., Rust v. Sullivan, 500

U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991); Central

Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S.

557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980); Sons of

Confederate Veterans, Inc. v. Commissioner of Va. Dept of

6. Florida’s regulation of its citrus industry is also more

extensive than California’s regulation of its lawyers.

15

Motor Vehicles, 288 F.3d 610 (4th Cir. 2002); Wells v. City

& County of Denver, 257 F.3d 1132 (10th Cir. 2001),

cert. denied, 534 U.S. 997, 122 S. Ct. 469, 151 L. Ed. 2d

384 (2001); United States vy. Frame, 885 F.2d 1119 (3d Cir.

1989), cert. denied, 493 U.S. 1094, 110 S. Ct. 1168, 107

L. Ed. 2d 1070 (1990). It is well established, of course,

that the “government is entitled to promote particular

messages . . . [and] its policies and positions either through

its own officials or through its agents.” Sons of Confederate

Veterans, Inc., 288 F.3d at 616-17 (citing Rust, 500 U.S.

at 194, 111 S. Ct. 1759).

In Knights of Ku Klux Klan v. Curators of the University

of Missouri, 203 F.3d 1085 (8th Cir. 2000), cert. denied, 531

U.S. 814, 121 S. Ct. 49, 148 L. Ed. 2d 18 (2000), the court

recognized that government speech may be identified based

upon the central purpose of the program, the degree of

editorial control exercised by the government over the content

of the message, and whether the government bears the

ultimate responsibility for the content of the message. 203

F.3d at 1093-94 (citing Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819, 833, 115 S. Ct. 2510, 132 L. Ed.

2d 700 (1995)).

To the same effect is Downs v. Los Angeles Unified

School District, 228 F.3d 1003 (9th Cir. 2000), cert. denied,

532 U.S. 994, 121 S. Ct. 1653, 149 L. Ed. 2d 636 (2001),

in which the court determined that when the government

speaks, “its control of its own speech is not subject to the

constraints of constitutional safeguards and form analysis,

but instead is measured by practical considerations applicable

16

to any individual’s choice of how to convey one’s self.”

Id. at 1013.’

In the case at bar, the Eighth Circuit recognized that:

The government is constitutionally entitled to

engage in its own speech without implicating the

First Amendment. As this Court has recognized,

[t]he First Amendment does not prohibit the

government itself from speaking, nor require the

government to speak. Similarly, the First

Amendment does not preclude the government

from exercising editorial discretion over its own

medium of expression.

Livestock Marketing Ass'n v. United States Dept. of

Agriculture, 335 F.3d 711, 718 (8 Cir. 2003) (citations

and internal quotations omitted), cert. granted in part, 124

S. Ct. 2389, 2390, 158 L. Ed. 2d 962 (2004).

In Pelts & Skins, LLC v. Landreneau, 365 F.3d 423

(5" Cir. 2004), despite finding that the use of fees in Louisiana

for the generic marketing of alligator meat and skins violated

the First Amendment, the Fifth Circuit importantly

recognized that it was not reviewing advertising disseminated

by a governmental entity exercising complete authority,

7. In formulating its opinion, the Ninth Circuit in Downs relied

upon the decisions of this Court in National Endowment for the Arts

y. Finley, 524 U.S. 569, 118 S. Ct. 2168, 141 L. Ed. 2d 500 (1998),

Board of Regents of the University of Wisconsin v. Southworth,

$29 U.S. 217, 120 S. Ct. 1346, 146 L. Ed. 2d 193 (2000),

Rosenberger, 515 U.S. 819, 115 S. Ct. 2510, Rust, 500 U.S. at 173,

111 S. Ct. at 1759, and Hazelwood School District v. Kuhlmeier, 484

U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988).

17

control and responsibility for the message conveyed as part

of a broad regulatory scheme, such as Florida’s citrus

advertising campaign:

Nor are we dealing with a governmental message

crafted, controlled, and expressed by an agency

designed to represent state government.

365 F.3d at 432 (relying on the government speech doctrine

as espoused by this Court in Legal Services Corporation vy.

Velazquez, 531 U.S. 533, 121 S. Ct. 1043, 149 L. Ed. 2d 63

(2001) and Southworth, 529 U.S. 217, 120S. Ct. 1346).

This Court specifically recognized in Keller that its

finding of a First Amendment violation would be different if

the State Bar of California were:

[A] “government agency,” and therefore entitled

to the treatment accorded a governor, a mayor, or

a State tax commission, for instance. . . . The State

Bar of California is a good deal different from

most other entities that would be regarded in

common parlance as “governmeiutal agencies.”

496 U.S. at 11, 110 S. Ct. at 2234. Likewise, this Court

recognized that its decision in Board of Regents of

the University of Wisconsin System v. Southworth, 529

U.S. 217, 120 S. Ct. 1346, 146 L. Ed 2d 193 (2000), would

be “altogether different” had the university itself been the

speaker:

The Court has not held, or Suggested, that when

the government speaks the rules we have

discussed come into play. When the government

18

speaks, for instance to promote its own policies

or to advance a particular idea, it is, in the end,

accountable to the electorate and the political

process for its advocacy. If the citizenry objects,

newly elected officials later could espouse some

different or contrary position.

§29 US. at 235, 120 S. Ct. at 1357.

Therefore, when advertising is disseminated by a

governmental entity and such advertising promotes a

governmental message and the advertising is completely

within such entity’s control, authority, and responsibility, it

should properly be characterized as government speech.

The Florida Legislature expressly established the

Department of Citrus as an agency of the State and mandated

that the Department of Citrus shall speak for the State on

citrus related matters.* The Florida Legislature also mandated

an advertising campaign to be conducted by the Department

of Citrus as follows: “The Department of Citrus shall plan

8. The Legislature sets out the organizational structure for the

executive branch of Florida’s government in Chapter 20 of the Florida

Statutes, and creates therein State agencies under the powers granted

by Article IV, Section 6, of the Florida Constitution. § 20.02(2),

Fla. Stat. (2003). The Department is specifically created as a State

agency by Section 20.29, Florida Statutes (2003). The Department

submits its budget annually to the Legislature for approval, is audited

by the State, and its operations are governed by statute and

overseen by the executive branch of Florida government and the

Legislature. See §§ 20.051, 20.055 and ch. 601, Fla. Stat. (2003).

The Department’s employees all are: (i) employees of the State of

Florida; (ii) paid by the State through the Chief Financial Officer;

(iii) part of the State pension fund; and (iv) protected by sovereign

immunity. See § 601.10, Fla. Stat. (2003).

19

and conduct campaigns for commodity advertising, publicity,

and sales promotion, and may conduct campaigns to

encourage noncommodity advertising, to increase

consumption of citrus fruits and may contract for any such

advertising, publicity, and sales promotion service.”

§ 601.15(2), Fla. Stat. In addition, the Florida Supreme Court

has specifically approved the Legislature’s delegation of

authority to the Department of Citrus to advertise and

promote Florida citrus. Coca-Cola Co. v. State Dept. of

Citrus, 406 So. 2d 1079, 1084 (Fla. 1981).

The promotion of Florida citrus, which is supported by

funds collected under the Box Tax, has been legislatively

and judicially determined to be crucial to the general

economic welfare of the State of Florida. The Florida

Supreme Court’s decision in Coca-Cola affirmed a lower

court decision which relied on this Court’s consideration of

the Citrus Code in Sligh v. Kirkwood, 237 U.S. 52, 35S. Ct.

501, 59 L. Ed. 835 (1915):

The regulation of the Florida citrus industry in

the exercise of the state’s police power has been

upheld many times. E.g., Sligh v. Kirkwood, 237

U.S. 52, 35 S. Ct. 501, 59 L. Ed 835 (1915);

L. Maxcy, Inc. v. Mayo, 103 Fla. 552, 139 So. 121

(1932); Mayo v. Polk Co., supra. In Sligh y,

Kirkwood ... the United States Supreme Court

observed that the police power, in its broadest

sense, includes all legislation and almost every

function of civil government. Most significantly,

the court said “[the police power] embraces

regulations designed to promote public

convenience or the general prosperiiy or welfare,

as well as those specifically intended to promote

the public safety or the public health.”

20

In that case the Court had under consideration a

Florida statute making it unlawful for anyone to

sell, offer for sale, ship, or deliver for shipment,

any citrus fruits which were immature or

otherwise unfit for consumption. The opponents

of the statute contended that it was not a legitimate

exercise of the police power because it had the

effect of protecting the health of people in other

states who might receive fruits from Florida in a

condition unfit for consumption and, however

commendable it may be to protect the health of

such foreign peoples, that purpose is not within a

state’s police power. In upholding the statute, the

Court said, in effect, that economic benefits are a

legitimate purpose for the exercise of a state’s

police power:

We may take judicial notice of the fact

that the raising of citrus fruits is one of

the great industries of the State of

Florida. It was competent for the

legislature to find that it was essential

for the success of that industry that its

reputation be preserved in other states

wherein such fruits find their most

extensive market. The shipment of

fruits so immature as to be unfit

for consumption, and consequently

injurious to the health of the purchaser,

would not be otherwise than a serious

injury to the local trade, and would

certainly affect the successful conduct

of such business within the state. The

protection of the state’s reputation in

21

foreign markets, with the consequent

beneficial effects upon a great

home industry, may have been within

the legislative intent, and it certainly

could not be said that this legislation

has no reasonable relation to the

accomplishment of that purpose.

Florida Canners Ass'n v. State Dept. of Citrus, 371 So. 2d

503, 514 (Fla. 2d DCA 1979) (citing Sligh, 239 U.S. at 61,

35 S. Ct. at 503, 59 L. Ed. at 839), aff'd, 406 So. 2d 1079

(Fla. 1981). In addressing whether advertising constituted a

valid objective for the exercise of police power, the court in

Florida Canners further recognized that:

The Florida Supreme Court had an early

Opportunity to consider the value to the Florida

citrus industry of advertising Florida citrus fruit.

C.V. Floyd Fruit Co. v. Florida Citrus

Commission, 128 Fla. 565, 175 So. 248 (1937).

In that case the excise taxes levied by the three

1935 legislative enactments establishing the

orange, grapefruit, and tangerine advertising funds

were attacked on the ground that the tax was not

a public purpose. The court held that it was, saying

“it cannot be reasonably contended that the

protection and promotion of the citrus industry in

Florida is not a matter of public concern or that

the legislature may not determine within

reasonable bounds what is necessary for the

protection and expedient for the promotion of that

industry. We are committed to the theory that

advertising is a proper method for promoting the

22

public welfare and that, therefore, the tax levied

to provide funds for advertising serves a public

end.”

Id. at 515.

The United Foods and Glickman requirement of a

comprehensive regulatory scheme for agricultural commodity

advertising campaigns has its roots in the substantial

governmental interest in the agricultural industry sought to

be regulated and advanced. Such a substantial governmental

interest is never more clearly evidenced than by the

government’s valid exercise of its police powers to support,

protect and advance such an industry for the welfare of the

government. As shown in the cases cited above, Florida’s

substantial governmental interest in the Florida citrus

industry has long been held to be a proper subject of the

exercise of the Florida’s police power. See Coca-Cola and

Florida Canners Ass'n, supra. More especially, Florida’s

regulation of that industry for the purpose of advancing the

economic well-being of the industry, and thereby of Florida,

has been approved as being within the proper exercise of

Florida’s police power. Jd.

As previously noted, Florida’s advertising is only one

part of the overall regulatory scheme in Florida which

includes the Citrus Code, as well as its related statutes, rules

and regulations, designed to insure the agricultural health of

the citrus grower and the industry; assure that the consumers

of fresh and processed citrus products receive high quality,

safe, and health products; and assure that the regulation and

promotion of those citrus products works to the economic

advantage of the State of Florida as a direct result of the

advancement of the economic health of its citrus industry.

23

Florida’s advertising of Florida citrus is part of an overall

regulatory scheme which advances a substantial state interest.

Such advertising is completely within Florida’s control,

authority and responsibility. The advertising contains none

of the limitations on government speech as set forth in federal

case law. Therefore, in any decision or statement the Court

makes in the instant case regarding government speech, the

Court is respectfully urged to include language that clearly

distinguishes the difference between generic agricultural

assessment programs which fund speech by non-government

or quasi-government industry groups for the collective benefit

of contributing producers and advertising disseminated by

the government itself as part of an overall regulatory scheme

which advances a substantial governmental interest.

CONCLUSION

The court has an opportunity in this case to correct

mischaracterizations of its decisions in United Foods and

Glickman. Also, the Florida citrus industry has circumstances

which are unique and different from the facts reviewed in

United Foods and the post-United Foods cases. Thus, no

matter what the Court’s decision in this case, the Court is

respectfully urged to include language in its decision

protecting entities such as Florida that fall squarely within

the protections afforded by United Foods and Glickman.

The Court is also respectfully urged to include language in

its decision to clarify that advertising disseminated by a

government agency is government speech where the

government agency exercises complete authority, control, and

responsibility for the message conveyed and where the

message conveyed is part of an overall regulatory scheme

which advances a substantial governmental interest.

24

Barry RICHARD

Counsel of Record

M. Hope KEATING

GREENBERG TRAURIG, P.A.

101 East College Avenue

Tallahassee, FL 32302

(850) 222-6891

HANK B. CAMPBELL

MOonTEREY CAMPBELL

Gray RoBINSON

Post Office Box 3

Lakeland, FL 33802

(863) 284-2200

Counsel for Amicus Curiae

State of Florida, Department of Citrus