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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0741%3A21

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 977

## Text

[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
ERTS Ree ta RE Ae 6
Ee eee a 6
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
I a eo Pd o-
INI od cnuwiuCeesks cdoc ca a 5
UU, onde ed ecclcte 6
PONRUII witeducnckcenvedasocdnass 6
POPOOU PU, ccccccccccccccdccececec, 6
PGI, occnnecicdadcevdoviseces 6
TU 6
SU 6
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0741%3A21. Public record. Not legal advice.