Amicus Curiae Brief — United States v. United Foods, Inc.

SAN De Der} % ane

No. 00-276

IN THE CRPEGE OF Was CLERK

Supreme Court of the GAnited States

UNITED STATES OF AMERICA AND

UNITED STATES DEPARTMENT OF AGRICULTURE,

Petitioners,

V.

UNITED Foops, INC.,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the Sixth Circuit

BRIEF AMICI CURIAE FOR THE AMERICAN

MUSHROOM INSTITUTE, THE NATIONAL

CATTLEMEN’S BEEF ASSOCIATION, INC.,

THE AMERICAN SOYBEAN ASSOCIATION,

THE NATIONAL MILK PRODUCERS FEDERATION,

THE MILK INDUSTRY FOUNDATION,

THE UNITED EGG PRODUCERS, INC., AND

THE UNITED EGG ASSOCIATION, INC.,

IN SUPPORT OF PETITIONERS

WAYNE R. WATKINSON JOHN G. ROBERTS, JR.*

RICHARD T. ROSSIER DAVID G. LEITCH

MCLEOD, WATKINSON & MILLER HOGAN & HARTSON L.L.P.

One Massachusetts Ave., N.W. 555 Thirteenth Street, N.W.

Washington, D.C. 20001 Washington, D.C. 20004

(202) 842-2345 (202) 637-5810

“Counsel of Record Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES -.cc-cccescocescosccoeccceccosccoecoe. ii

STATEMENT OF INTEREST .eccecoscccccccecccscccecccnscosece 1

PAST IROUIC TION ssn innscnenescscoseneececeenseceesain-- 4

SUMMARY OF ARGUMENT onceesseccssecsececsseccseesevenees 6

FARR ELE COT ETE EDN Re PE 7

|

I. | COMPELLED FUNDING OF NON-

POLITICAL SPEECH RAISES NO

FIRST AMENDMENT ISSUE oocsecsecccccscecseeoses ’

Il. THE MUSHROOM ACT SATISFIES

THE GERMANENESS TEST oosessccssccssccoeeeoee 10

: Ill. THE SPEECH FUNDED PURSUANT

TO THE MUSHROOM ACT IS GOV-

ERNMENT SPEECH AND THERE-

FORE DOES NOT IMPLICATE THE

FIRST AMENDMENT «..co-csoeec.ccsovccceecocscoeeo 11

I i 23

E

.

(i)

TABLE OF AUTHORITIES

Page

Cases:

Abood v. Detroit Bd. of Educ., 431 U.S.

SOFIE) iiiemnivmmniamamaaiags passim

American Jewish Congress v. City of Chi-

cago, 827 F.2d 120 (7th Cir. 1987)............ eee 12

Block v. Meese, 793 F.2d 1303 (D.C. Cir.),

cert. denied, 478 U.S. 1021 (1986)............ 12,13,14

Boos v. Barry, 485 U.S. 312 (1988) .................00000 10

Brown v. Palmer, 915 F.2d 1435 (10th Cir.

1990), aff'd, 944 F.2d 732 (10th Cir.

POPE) 00 BORED vicisiscriniticesicamernisbedesiataaicaal 14

Close v. Glenwood Cemetery, 107 U.S. 466

CRITI) ss icinsnsnintnivestecienichesssecalenelinanas asia ana 5

Gerawan Farming, Inc. v. Lyons, 12 P.3d

TEAC, BOO incense emda 9

Glickman v. Wileman Bros. & Elliott, Inc.,

Dal Was S91 CIF itcnrcmanaanins passim

Keller v. State Bar of Cal., 496 U.S. 1

CE PIED siniensnnaarsiinnieninnnekinnipnshanianlaalealeniaianaminaas passim

Lathrop v. Donohue, 367 U.S. 820 (1961)............. 22

Lebron v. National R.R. Passenger Corp.,

DAS Ch: FPO oii 14,15,16

Lee v. Weisman, 505 U.S. 577 (1992) ..........ccceeeeees 13

NAACP v. Hunt, 891 F.2d 1555 (11th Cir.

COPD .ssissssnnsisistsiietasiicesaniieilepatieissectidtundamaainedeaomamae 21

Penthouse Int'l, Ltd. v. Meese, 939 F.2d

1011 (D.C. Cir. 1991), cert. denied, 503

CI, SI CII) a wissssicmsisatninmiaaamaaananaal 13

R.A.V. v. City of St. Paul, 505 U.S. 377

(IE) wssinsaisiinnissaniineshatasicinigiatiiniekemaa dame 10

Reno v. Condon, 528 U.S. 141 (2000)... 5

Rosenberger v. Rector & Visitors of Univ.

of Wa, S05 US, BED CIS GSD occvsscnerssitennicccopennen 14

(ii)

ill

TABLE OF AUTHORITIES

continued

Page

Cases:

Rust v. Sullivan, 500 U.S. 173 (1991)... eee 20

Student Gov't Ass'n v. Board of Trustees of

Univ. of Mass., 868 F.2d 473 (1st Cir.

ea iieei halla bbicnasabinaatbnceeyseisosnecneens 12

United States v. Frame, 885 F.2d 1119 (3d

Cir. 1989), cert. denied, 493 U.S. 1094

eins sdiiilaarreenliaesendobreseseensiereseceoues 12,17,18

United States v. Lee, 455 U.S. 252 (1982) ............. 13

Walters v. National Ass’n of Radiation

Survivors, 473 U.S. 305 (1985)..............csecesecssesese. 5

West Virginia State Bd. of Educ. v. Bar-

Ns PR Mth MA NPD) vossvescncssesessescnecsssnssescess 21

Wooley v. Maynard, 430 U.S. 705 (1977) ...........06+ 21

Constitution:

| ME MINI he is coscvasssossanecssnsssesconsesssoreens passim

Statutory Provisions:

Bass sisstanssavocusdsarsersonsassnhaceseacsee 16

te TE PINs sss cascanansanesssaveosvnseetsescennesnssees 16

I i oss cicscssvessinanssunsisonsonsnssessesens 11,16

I st scscsansascpinsshensoabssnescsuesessicssenase 15

I BORD 5k. snessnsenssenesssssveessosensvces 15

OI I UBD 5, sssacasessesosecesncesesenesaseseess 16

BE IIT ciciisesnoseconincscsvinesssvegrossscescenes 15,16

I asa ccasebcnesuvasesvaeivesesssosehorecesoes 20

sc scascssnnsonsshavsesendnsnsenasesssess 16

ES cs csccovscnvesonvcconsessusso 17,20

iV

TABLE OF AUTHORITIES

continued

Page

Faas Se PID Siac vitpsidcnisineiianlintoleaninaneliooa 17

Fe SED to apsnvinccnnbenshaindedeniimnsanaatins 16

Egg Research and Consumer Information

Act of 1980, 7 U.S.C. §§ 2701-2718 ..................... 3

Beef Promotion and Research Act of 1985,

Fe plers We ARIE Rikaincicrnsisiinnaienecseininancinenie 2

Dairy Production Stabilization Act of 1983,

Frc ce Se acti dessccinchnainansletenirntiieallgpcti 3

Federal Agricultural Improvement and Re-

form Act, 7 U.S.C. §§ 7401-7425....cccccccesesseeee. 16,17

Fluid Milk Promotion Act of 1990,

F Ce eiice Te RENIN F ash ercssctcdihtienttnuiarrscenalacinnsions 3

Mushroom Promotion, Research, and Con-

sumer Information Act of 1990, 7 U.S.C.

Oe AER ORE Gatien Sesainthcisccdeainseclatabuuhmenibhsiekdasdaiaiana 2

Soybean Promotion, Research, and Con-

sumer Information Act of 1990, 7 U.S.C.

ee eI © cexcohisddicstessrsicneuacunchbaeinaiinespamniinnianneies 2

Other Authorities:

The Supreme Court, 1996 Term—Leading

Cases, 111 Harv. L. Rev. 197 (19977).............sc0000+. 9

Si Aas NE SF at isisnnoeshsisiics sn aceinaiaiicniobinidelnintabeealaaacmeeniti 4

RE 5k EINER Cera en mln SOT mee Ia NN ET l

IN THE

Supreme Court of the Gnited States

No. 00-276

UNITED STATES OF AMERICA AND

UNITED STATES DEPARTMENT OF AGRICULTURE,

Petitioners,

V.

UNITED Foops, INC.,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the Sixth Circuit

Se OTT. SRA

BRIEF AMICI CURIAE FOR

THE AMERICAN MUSHROOM INSTITUTE, ET AL.,

IN SUPPORT OF PETITIONERS

STATEMENT OF INTEREST!

The American Mushroom Institute (“AMI”) is a na-

tionwide nonprofit trade association that represents

| mushroom producers, processors, buyers, and others

| involved in providing services and supplies to the

|

|

i

mushroom industry. Its membership of more than 100

| Pursuant to this Court’s Rule 37.6, we note that no part of this

brief was authored by counsel for any party, and no person or

entity other than the amici curiae filing this brief made a monetary

contribution to the preparation or submission of the brief.

2

commercial mushroom farms in the United States

represents more than 90 percent of domestic mushroom

production. AMI’s members directly benefit from the

mushroom promotion program conducted by the Mush-

room Council pursuant to the Mushroom Promotion,

Research, and Consumer Information Act of 1990,

7U.S.C. §§ 6101-6112 (“the Mushroom Act”), the

statute held unconstitutional by the Sixth Circuit in this

case.

The National Cattlemen’s Beef Association, Inc.

(“NCBA”), which traces its lineage back to 1898, is a

Colorado nonprofit corporation that acts as the primary

national representative of the domestic cattle industry.

NCBA members directly benefit from the promotion

program undertaken by the Cattlemen’s Beef Promotion

and Research Board pursuant to the Beef Promotion and

Research Act of 1985, 7 U.S.C. §§ 2901-2911.

The American Soybean Association (“ASA”), is a

national, not-for-profit, grassroots membership organi-

zation that develops and implements policies to increase

the profitability of its members and the entire soybean

industry. ASA provides support services to its 28,500

producer members and 26 state affiliates, to its agribusi-

ness sponsors, to farm broadcasters and journalists, and

to export customers located in more than 100 countries.

ASA’s members represent a large percentage of the

more than 70 million acres of soybeans planted each

year in the United States. ASA’s members directly

benefit from the promotion programs conducted by the

United Soybean Association, pursuant to the Soybean

Promotion, Research, and Consumer Information Act of

1990, 7 U.S.C. §§ 6301-6311.

Tink De

3

The National Milk Producers Federation (“NMPF”),

founded in 1916, is the principal national representative

for American dairy producers and the milk marketing

cooperatives they own and operate. The members of

NMPF’s 27 cooperatives produce the majority of the

U.S. milk supply, making the NMPF the voice of over

55,000 dairy producers nationwide. NMPF’s members

directly benefit from the promotion program conducted

by the Dairy Promotion and Research Board pursuant to

the Dairy Production Stabilization Act of 1983, 7 U.S.C.

§§ 4501-4538.

The Milk Industry Foundation (“MIF”), founded in

1908, is a trade association that represents approxi-

mately 160 member companies that process, distribute,

and market approximately 85 percent of the U.S. market

for fluid milk, yogurt, cottage cheese, sour cream, soft

cheeses, egg nog, cream, dairy dressing, and dips.

MIF’s members directly benefit from the promotion

programs conducted by the National Processor Adver-

tising and Promotion Board pursuant to the Fluid Milk

Promotion Act of 1990, 7 U.S.C. §§ 6401-6417, and the

Dairy Promotion and Research Board pursuant to the

Dairy Production Stabilization Act of 1983, 7 U.S.C.

§§ 4501-4538.

The United Egg Producers, Inc. (“UEP”), is a Georgia

nonprofit trade association representing the majority of

American egg producers. UEP’s members directly

benefit from the promotion program of the Egg Board

pursuant to the Egg Research and Consumer Information

Act of 1980, 7 U.S.C. §§ 2701-2718.

The United Egg Association, Inc. (“UEA”), is a Dis-

trict of Columbia nonprofit trade association represent-

ing the majority of American egg processors. UEA’s

4

members also directly benefit from the Egg Board’s

promotion program.

In this case, Sixth Circuit held unconstitutional the

Mushroom Act and the mushroom promotion program

which directly benefits the members of amicus curiae

AMI. Furthermore, the Sixth Circuit’s First Amendment

analysis—which departs from this Court’s analysis in

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

457 (1997) threatens the numerous other agricultural

commodity promotion programs established pursuant to

federal and state law, including the beef, soybean, dairy,

and egg promotion programs that directly benefit the

members of amici curiae NCBA, ASA, NMPF, MIF,

UEP, and UEA.

This brief is filed with the written consent of all parties

pursuant to this Court’s Rule 37.2(a); the requisite

consent letters have been filed with the Clerk.

INTRODUCTION

In Glickman v. Wileman Brothers & Elliott, Inc., 521

U.S. 457 (1997), this Court considered a federal pro-

gram requiring; members of the California tree fruit

industry to pay assessments used to fund the generic

promotion of plums, peaches, and nectarines. Against

the claim of some industry members that such assess-

ments unlawfully compelled speech in violation of the

First Amendment, this Court held that the program was

constitutional—indeed, that the program did not even

raise “a constitutional issue.” /d. at 477.

The Sixth Circuit has now held that the promotion

program carried out pursuant to the Mushroom Act

5

violates the First Amendment. This is not because of

some difference between plums and mushrooms.

Instead, the Sixth Circuit distinguished Wileman on the

ground that the California tree fruit industry is “heavily

regulated,” while “there appears to be a relatively free

market in mushrooms.” Pet. App. 3a, 5a. Thus, in the

Sixth Circuit’s view, the constitutionality of a promotion

program under Wileman “must turn on the degree of

regulation of the industry.” Jd. at 4a.

The Sixth Circuit exhibited considerable reluctance to

follow Wileman, which it disparaged (citing two law

review items) as a “controversial 5-4 decision.” /d. at 3a

& n.2. It also seemed eager to strike down the Mush-

room Act, which it derided as the product of “interest

group lobbying,” id. at Sa n.3, despite the admonition in

Wileman that “[d]oubts concerning the policy judgments

that underlie many features of this legislation” do not

detract from “the constitutionality of these marketing

orders.” 521 U.S. at 476.

As this Court has said, “[j]udging the constitutionality

of an Act of Congress is properly considered the gravest

and most delicate duty” performed by the federal judici-

ary. Walters v. National Ass'n of Radiation Survivors,

473 U.S. 305, 319 (1985) (internal quotation marks

omitted). For this reason, this Court has long instructed

that federal statutes must be presumed constitutional.

See Reno v. Condon, 528 U.S. 141, 148 (2000) (“We of

course begin with the time-honored presumption that the

DPPA [Driver’s Privacy Protection Act] is a ‘constitu-

tional exercise of legislative power.” ”) (quoting Close v.

Glenwood Cemetery, 107 U.S. 466, 475 (1883)). The

Sixth Circuit ignored this admonition and misread the

6

Court’s decision in Wileman. Its judgment should be

reversed.

SUMMARY OF ARGUMENT

There can be no serious dispute that the speech funded

by the Mushroom Act is neither ideological nor political.

It is, after all, about mushrooms. The Sixth Circuit

nevertheless found the compelled subsidy of that speech

unconstitutional. Its decision focused on the level of

industry regulation, and it held that what it perceived to

be the relatively low level of collectivization in the

mushroom industry rendered the speech not germane to

any valid, comprehensive regulatory scheme, and that

the subsidy was therefore unconstitutional.

The Sixth Circuit’s decision was clearly wrong under

Wileman. This Court’s opinion there made plain that

compelled funding of speech that is nonideological and

nonpolitical—like the speech at issue here—raises no

First Amendment issue and should be reviewed under

the standard appropriate for review of economic regula-

tion. That holding did not depend on any “germane-

ness” inquiry. In any event, even if such an inquiry

were appropriate, it was met here. The speech at issue

was not only germane to a valid governmental purpose;

it was itself the governmental purpose.

In addition, the nature of the speech at issue—gov-

ernment speech—should preclude any First Amendment

challenge. It is speech by an entity—the Mushroom

Council—established pursuant to federal law to achieve

defined governmental objectives. The members of the

Council are appointed by a governmental officer and its

activities are subject to his direction and control. While

the First Amendment limits governmental interference

7

with private speech, it does not limit speech of the

government itself. Because that is precisely what is at

issue here, the First Amendment challenge should be

rejected.

ARGUMENT

I. COMPELLED FUNDING OF NON-

POLITICAL SPEECH RAISES NO FIRST

AMENDMENT ISSUE.

The Sixth Circuit construed this Court’s opinion in

Wileman to mean that compelled funding of speech is

constitutional only if the funded speech is not political

or ideological and is germane to a legitimate collective

program. The court below held that “[oJur interpretation

of Wileman is that if either of the two elements is miss-

ing * * * the First Amendment invalidates the compelled

commercial speech.” Pet. App. 7a. The Sixth Circuit’s

reading of Wileman on this point was central to its

decision; while it concluded that the germaneness test

was not satisfied, it conceded that the speech funded by

the Mushroom Act is nonpolitical or nonideological.

See id.

The court below erred in its interpretation of Wileman.

Wileman identified three grounds to distinguish the

regulatory scheme at issue there from “laws that we

have found to abridge the freedom of speech protected

by the First Amendment.” 521 U.S. at 469-470 (dis-

cussing fact that marketing orders “impose no restraint

on the freedom of any producer to communicate any

message to any audience,” “do not compel any person to

engage in any actual or symbolic speech,” and “do not

compel the producers to endorse or to finance any

political or ideological views”). None of these factors—

all of which are equally satisfied here—turns in any way

8

on the level of industry regulation involved or the

germaneness of that regulation to the speech at issue.

Instead, the Court’s opinion established that in the

absence of the concerns that animated earlier First

Amendment decisions, the marketing order would be

reviewed under “the standard appropriate for review of

economic regulation.” /d. at 469.

While the Wileman Court certainly did mention a ger-

maneness inquiry when considering its cases that pro-

vide “affirmative support for the proposition that as-

sessments 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 472-473, the

critical passage in Wileman is the Court’s holding that

the Abood-Keller? “test is clearly satisfied in this case’

because (1) the generic advertising of California peaches

and nectarines is unquestionably germane to the pur-

poses of the marketing orders and, (2) in any event, the

assessments are not used to fund ideological activities.”

521 U.S. at 473.

Unlike the Sixth Circuit, Justice Souter and the three

Justices who joined him in dissent took this to mean that

“a compelled subsidy of speech does not implicate the

First Amendment if the speech either is germane to an

otherwise permissible regulatory scheme or is

nonideological, so that each of these characteristics

constitutes an independent, sufficient criterion for

upholding the subsidy.” Id. at 483 n.3 (Souter, J.,

dissenting) (emphases added). In support of his under-

standing of the Court’s opinion, Justice Souter noted that

2 Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977); Keller v.

State Bar of Cal., 496 U.S. 1 (1990).

9

the Court had said that “ ‘in any event, the assessments

are not used to fund ideological activities.’’’ Jd. (em-

phasis in original). Significantly, the Court did not

dispute his reading. See The Supreme Court, 1996

Term—Leading Cases, 111 Harv. L. Rev. 197, 326

(1997) (“the [Wileman] Court stated that compelled

speech must be political or ideological to warrant First

Amendment protection’’).

Justice Souter’s reading of Wileman is correct. This

Court emphasized in Wileman that there is no “broad

First Amendment right not to be compelled to provide

financial support for any organization that conducts

expressive activities” but rather there is only “a First

Amendment interest in not being compelled to contrib-

ute to an organization whose expressive activities

conflict with one’s ‘freedom of belief.’” 521 U.S. at

471 (quoting Abood, 431 U.S. at 235). See id. at 478

(Souter, J., dissenting) (calling this passage “[t]he nub of

the Court’s opinion”). Thus, the Court in Wileman held

that there was no First Amendment issue because “re-

quiring respondents to pay the assessments cannot be

said to engender any crisis of conscience.” Jd. at 472.

The rule of Wileman is that compelled funding of

speech raises no First Amendment issue unless the

speech is political or ideological. See Gerawan Farm-

ing, Inc. v. Lyons, 12 P.3d 720, 743 (Cal. 2000) (Wile-

man stands for the proposition that “the First Amend-

ment’s right to freedom of speech does not protect

commercial speech against compelled funding”). This

rule is perfectly sensible as a matter of First Amendment

law. Compelled funding of speech imposes “no restraint

on the freedom of any[one] to communicate any mes-

sage to any audience.” Wileman, 521 U.S. at 469. Nor

10

is someone compelled to fund speech forced “to engage

in any actual or symbolic speech.” Jd. A compelled

funding claim is thus far removed from the center of

what the First Amendment prohibits, and for that reason

a limiting principle is appropriate.

Political speech, unlike commercial speech, is at the

very core of the First Amendment. See R.A.V. v. City of

St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concur-

ring in the judgment) (“Our First Amendment decisions

have created a rough hierarchy in the constitutional

protection of speech. Core political speech occupies the

highest, most protected position; commercial speech

* ** Tis] regarded as a sort of second-class expres-

sion”); Boos v. Barry, 485 U.S. 312, 318 (1988). Thus,

this Court’s rule in Wileman that compelled funding of

speech implicates the First Amendment only when

political or ideological communication is funded was a

sensible line to draw.

As noted, there is no dispute in this case that the mush-

room “advertising is ‘nonideological’ or ‘nonpolitical’

in nature.” Pet. App. 7a. Under Wileman, that should

have been the end of the First Amendment inquiry.

Il. THE MUSHROOM ACT SATISFIES THE

GERMANENESS TEST.

Assuming that the nonpolitical nature of the speech at

issue here does not dispose of respondent’s compelled

funding claim, the Sixth Circuit nevertheless erred when

it held that “the mushroom advertising program before

us is not ‘germane’ to any collective program setting

prices or supply.” Pet. App. 7a.

11

In Wileman, this Court noted that “ ‘Abood held that a

union could not expend a dissenting individual’s dues

for ideological activities not “germane” to the purpose

for which compelled association was justified.’” 521

U.S. at 473 (quoting Keller, 496 U.S. at 13). Here, the

purpose of the Mushroom Acct is not to collectivize the

mushroom industry but to establish a “program of

promotion, research, and consumer and industry infor-

mation designed to” benefit the mushroom industry and

expand mushroom markets. 7 U.S.C. § 6101(b). Ge-

neric mushroom advertising is not merely germane to

that goal, it is the very essence of the program. The

court below was wrong to conclude that a promotion

program is not germane unless it is part of a larger

scheme of industry collectivization.

Ill. THE SPEECH FUNDED PURSUANT TO

THE MUSHROOM ACT IS GOVERNMENT

SPEECH AND THEREFORE DOES NOT

IMPLICATE THE FIRST AMENDMENT.

Even if Wileman were distinguishable from this case

for some reason—which it is not—that would not

compel the conclusion that the Mushroom Act is uncon-

stitutional. This Court in Wileman did not consider

whether the speech at issue was government speech and

therefore not subject to First Amendment challenge. See

521 U.S. at 482 n.2 (Souter, J., dissenting) (citing

Keller, 496 U.S. at 10-13, and Abood, 431 U.S. at 259

n.13 (Powell, J., concurring in the judgment)). In this

case, we urge the Court to consider the argument and to

resolve the threshold question of the very application of

the First Amendment in cases such as this. As we

explain, the proper resolution of that question will put to

rest First Amendment challenges to the various promo-

12

tional programs such as that contained in the Mushroom

Act.

1. Like private citizens and corporations, government

at various levels regularly contributes its voice to the

marketplace of ideas. As the Third Circuit has noted:

Citizens’ tax dollars purchase a considerable amount

of “government speech.” Not only does the govern-

ment speak on behalf of its citizens when it airs ad-

vertisements warning of the dangers of cigarette

smoking or drug use, praising a career in the armed

services, or offering methods for AIDS prevention,

each time the President of the United States meets

with a foreign dignitary, or state department officials

enter into arms control negotiations, the government

is engaging in expressive activities on behalf of eve-

ryone. [United States v. Frame, 885 F.2d 1119,

1131 (3d Cir. 1989), cert. denied, 493 U.S. 1094

(1990).]

See also Block v. Meese, 793 F.2d 1303, 1313 (D.C.

Cir.) (rejecting view that marketplace of ideas is “one in

which the government’s wares cannot be advertised’’)

(Scalia, J.), cert. denied, 478 U.S. 1021 (1986); Student

Gov't Ass’n v. Board of Trustees of Univ. of Mass., 868

F.2d 473, 482 (1st Cir. 1989) (“In addition to its role as

a regulator, the state plays an important role as a partici-

pant in the marketplace of ideas.”); American Jewish

Congress v. City of Chicago, 827 F.2d 120, 134 (7th Cir.

1987) (“Speech by the government is common.”)

_ (Easterbrook, J, dissenting).

This speech necessarily is paid for by citizens who

may or may not agree with the government’s message.

That fact, however, provides no basis for preventing the

13

government from taking and communicating a position

on issues of public concern, or for any individual to

demand the return of his money if he happens to dis-

agree with the government’s message.

As the Court explained in Keller, 496 U.S. at 12-13:

Government officials are expected as a part of the

democratic process to represent and to espouse the

views of a majority of their constituents. With

countless advocates outside of the government

seeking to influence its policy, it would be ironic if

those charged with making governmental decisions

were not free to speak for themselves in the process.

If every citizen were to have a right to insist that no

one paid by public funds express a view with which

he disagreed, debate over issues of great concern to

the public would be limited to those in the private

sector, and the process of government as we know it

radically transformed.

See also Lee v. Weisman, 505 U.S. 577, 591 (1992) .

(“the very object of some of our most important speech

is to persuade the government to adopt an idea as its .

own”).

Furthermore, as a practical matter, effective govern-

ment would come to a grinding halt if every person had

a right to insist that his money not be used to support

programs or positions with which he disagrees. See

Block v. Meese, 793 F.2d at 1313 (discussing the “prac-

tical problems of excluding the government from ideo-

logical debate”); see also Penthouse Int'l, Ltd. v. Meese,

939 F.2d 1011, 1015-16 (D.C. Cir. 1991), cert. denied,

503 U.S. 950 (1992). Cf United States v. Lee, 455 U.S.

252, 260 (1982) (“The tax system could not function if

14

denominations were allowed to challenge the tax system

because tax payments were spent in a manner that

violates their religious belief.”).

Accordingly, the First Amendment simply does not

provide a legal basis for objecting to government

speech. The First Amendment limits government

interference with private speech; it does not limit gov-

ernment speech itself. Thus, while the First Amendment

ordinarily prohibits the government from regulating

speech on the basis of its content, the Court has “per-

mitted the government to regulate the content of what is

or is not expressed when it is the speaker or when it

enlists private entities to convey its own message.”

Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 833 (1995) (emphasis added). As then-Judge

Scalia put it in Block v. Meese: “The short of the matter

is that control of government expression * * * is no

more practicable, and no more appealing, than control of

political expression by anyone else. * * * [T]he guaran-

tee of freedom of speech does not * * * prevent govern-

ment from adding its own voice to the many that it must

tolerate.” 793 F.2d at 1314 (internal quotation omitted).

See also Brown v. Palmer, 915 F.2d 1435, 1445 (10th

Cir. 1990) (First Amendment must not be construed to

“unduly chill[ ]” government speech), aff'd, 944 F.2d

732 (10th Cir. 1991) (en banc).

2. The first factor to consider in determining whether

speech is government speech is the obvious one: who is

doing the speaking? This Court provided clear guidance

on how to answer that question in Lebron v. National

R.R. Passenger Corp., 513 U.S. 374 (1995). That case

makes clear that entities such as the Mushroom Council

metas I oe

15

are government instrumentalities for First Amendment

purposes.

In Lebron, the National Railroad Passenger Corpora-

tion (better known as Amtrak) refused to allow the

petitioner to display an advertisement of a political

nature on a large illuminated billboard controlled by

Amtrak. The question for the Court was whether Am-

trak should be considered part of the government for

First Amendment purposes. The Court’s answer was

yes. The Court succinctly stated its holding in the final

paragraph of its opinion: “We hold that where, as here,

the Government creates a corporation by special law, for

the furtherance of governmental objectives, and retains

for itself permanent authority to appoint a majority of

the directors of that corporation, the corporation is part

of the Government for purposes of the First Amend-

ment.” Jd. at 400.

The three factors that led the Supreme Court to con-

clude that Amtrak “is part of the Government for pur-

poses of the First Amendment”—({1) creation of the

entity by special law; (2) furtherance of governmental

objectives; and (3) retention of appointment authority—

are all present here and compel the same conclusion

with respect to the Council. As to the first factor, the

Council was “created by a special statute.” Jd. at 397.

See 7 U.S.C. § 6104(b)(1)(A) (providing for establish-

ment of the Council). Second, the Council was created

“explicitly for the furtherance of federal governmental

goals.” 513 U.S. at 397. See 7 U.S.C. § 6103(a) (Sec-

_ retary’s orders establishing Council are intended to

“effectuate the declared policy of §6101(b)”); id.

§ 6104(c) (powers and duties of the Council). The Act

was accompanied by congressional findings explaining

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16

that “the production of mushrooms plays a significant

role in the Nation’s economy” and that “the maintenance

and expansion of existing markets and uses * * * for

mushrooms are vital * * * to the agricultural economy of

the Nation.” /d. §§ 6101(a)(2), (5). The purpose of the

Act, according to Congress, was “to strengthen the

mushroom industry’s position in the marketplace,” to

“maintain and expand existing markets and uses for

mushrooms,” and to “develop new markets and uses for

mushrooms.” /d. § 6101(b).

These “governmental objectives” (Lebron, 513 U.S. at

398) were reaffirmed with the passage of the Federal

Agricultural Improvement and Reform Act (the “FAIR

Act’). With specific reference to the Mushroom Act,

Congress found that “[i]t is in the national public interest

and vital to the welfare of the agricultural economy of

the United States to maintain and expand existing

markets and develop new markets and uses for agricul-

tural commodities through industry-funded, Govern-

ment-supervised, generic commodity promotion pro-

grams.” 7U.S.C. § 7401(b)(1). The promotion pro-

grams were found “to further the governmental policy

and objective of maintaining and expanding markets for

the covered commodities.” Jd. § 7401(b)(8)(B). In

short, the Mushroom Act was clearly enacted for a

public purpose.

As to the third Lebron factor, it is clear that the mem-

bers of the Council serve “under the direction and

control of federal governmental appointees.” Lebron,

513 U.S. at 398. The Secretary of Agriculture appoints

all of the members of the Council, see 7 U.S.C.

§ 6104(b)(1)(B), and his order establishes the powers

and duties of the Council. Jd. §6104(c). Again, this

17

point was reaffirmed with the passage of the FAIR Act.

See § 7401(b)(2) (commodity promotion programs are

“supervised by the Secretary of Agriculture’); id.

§ 7401(b)(8) (commodity promotion programs are

“under the required supervision and oversight of the

Secretary of Agriculture”’).

In sum, there can be little doubt after Lebron that the

Council is an “instrumentalit[y] created to enable the

Secretary of Agriculture to communicate his message

that [mushrooms are] good.” Frame, 885 F.2d at 1131.

Therefore, because the speech that United Foods is

complaining about is the government’s own speech, its

First Amendment claim cannot succeed.

3. The Third Circuit in Frame ultimately declined to

conclude that the speech at issue was government

speech because, in its view, “where the government

requires a publicly identified group to contribute to a

fund earmarked for the dissemination of a particular

message associated with that group” there is a “coerced -

nexus” between the message and the individuals who

comprise the group. 885 F.2d at 1132. By contrast, that |

“nexus between the message and individual is attenu-

ated,” the court said, “[w]hen the government allocates

money from the general tax fund to controversial proj-

ects or expressive activities.” /d. That analysis is

fundamentally flawed.

The focus of the government speech inquiry is—and

should be—on the entity that conveys the message at

issue and on the process through which that message has

been formulated. The focus is not-—and should not be—

on whether or to what extent the message might be

ascribed to an individual (other than the speaker) as a

result of the “nexus between the individual and the

18

specific expressive activity.” 885 F.2d at 1132. The

latter inquiry lacks any firm grounding in established

First Amendment doctrine and provides a wholly un-

workable rule of decision for distinguishing between

government and non-government speech.

The Third Circuit derived its “nexus” analysis solely

from footnote 13 of Justice Powell’s concurrence in

Abood, 431 U.S. at 259 n.13, which states:

Compelled support of a private association is funda-

mentally different from compelled support of gov-

ernment. * * * [T]he reason for permitting the gov-

ernment to compel the payment of taxes and to spend

money on controversial projects is that the govern-

ment is representative of the people. The same can-

not be said of a union, which is representative only

of one segment of the population, with certain com- }

mon interests.

See 885 F.2d at 1132-33. The pertinent distinction

drawn by Justice Powell was not, as the Third Circuit

apparently thought, the “nexus” between the individual

and the message to which he objects. Instead, the

distinction drawn was between being forced to associate

with private speech—which is derived from “one seg-

ment of the population, with certain common inter-

ests”’—and with government speech—which is derived

from the government as “representative of the people.”

Abood, 431 U.S. at 259 n.13.

Thus, in determining whether the speech activities at

issue in Keller constituted government speech, this

Court focused on the entity that conveyed the mes-

sage—the State Bar Association—and not, as would

have followed under the Third Circuit analysis, the

ected

19

“nexus” between the association’s members and the

message to which they objected. Because the Court

concluded that the association was not like a typical

government agency or official, who “[is] expected as a

part of the democratic process to represent and to es-

pouse the views of the majority of [its] constituents,”

496 U.S. at 12, the Court concluded that the messages it

conveyed were not government speech. Jd. at 13.

By contrast, here it follows under Lebron that the en-

tity conveying the message to which United Foods

objects—the Council—is a government instrumentality

for First Amendment purposes. See supra at 15-17.

Moreover, this case is distinguishable in a second,

perhaps even more fundamental, respect. Here, unlike

in Keller, the message being conveyed—mushroom

promotion—was formed in the first instance by Con-

gress “as a part of the democratic process.” 496 U.S. at

12. The Council was created by Congress with the

express purpose of conveying that particular message to

the public. It does so pursuant to precise governmental

regulations and subject to the ongoing guidance and

control of the Secretary of Agriculture.

No such governmental definition and control charac-

terized the activities of the State Bar in Keller. The

Court made clear that the messages at issue in that case

represented the views of a particular group—the Bar—

on a wide and changing array of issues. Here the mes-

3 The Bar was alleged to have been engaged in such far rang-

ing—and openly political—activities as “endors[ing] a gun control

initiative, disapprov[ing] statements of a United States senatorial

candidate regarding court review of a victim’s bill of rights,

endors[ing] a nuclear weapons freeze initiative, and oppos[ing]

federal legislation limiting federal-court jurisdiction over abor-

20

sage at issue was fixed by the representative of all the

people—Congress—and is implemented by the Secre-

tary. Although that message may be beneficial to a

particular group—which justifies having them fund its

dissemination—there is no doubt that it is the govern-

ment’s message.

The government may—and frequently does—use “pri-

vate entities to convey a governmental message,” or “to

transmit specific information pertaining to its own

program.” Rosenberger, 515 U.S. at 833. When it does

so, the government speech analysis still applies in

analyzing objections to the message or specific informa-

tion being conveyed by the private entities. E.g., Rust v.

Sullivan, 500 U.S. 173 (1991). But this case does not

even involve the enlistment of private entities to convey

the government’s message. Here, the government’s

message is being conveyed by government bodies

created by Congress specifically for that purpose and

placed under the direct supervision of government

officials like the Secretary. See supra at 15-17. In these

circumstances, it simply defies common sense to con-

clude that this case does not involve government speech.

Had Congress elected to fund the activities under the

Mushroom Act with taxpayer dollars, there would be no

question that the program’s speech was government

speech. Simply because Congress made the decision to

defray the program’s cost by imposing what amounts to

a modest user fee on those “who most directly reap the

benefits of the programs,” 7 U.S.C. § 7401(b)(2)—and

tions, public school prayer, and busing.” 496 U.S. at 15. The Act

in this case expressly prohibits spending for such political activi-

ties, 7 U.S.C. § 6104(h), and limits permissible speech activities to

commercial advertisements promoting mushrooms.

—

21

who as a group have voted to fund the program—does

not change the essential character of the speech. It

remains the government’s message, with the content

specified by Congress and articulated under the guid-

ance and control of the Secretary.

This is a far cry from a case in which the government

attempts to compel adherence to its own message, as

was the case in West Virginia State Bd. of Educ. v.

Barnette, 319 U.S. 624 (1943), where students were

faced with expulsion and prosecution for failing to

participate in the Pledge of Allegiance, or Wooley v.

Maynard, 430 U.S. 705 (1977), where motorists were

required to bear on their own vehicle license plates an

ideological state motto they found morally objection-

able. The respondent in this case faces no such ideo-

logical dragooning. The marketing order simply re-

quires it to pay a user fee; it neither “compell[s] [it] to

utter what is not in [its] mind,” Barnette, 319 U.S. at

634, nor makes it “the courier for [the government’s]

message.” Wooley, 430 U.S. at 717. That is, no one has

asked respondent to express its support of mushroom

promotion, as in Barnette, or to bear such a message on

its property, as in Wooley. For the government to

compel political or ideological speech from the lips of a

reluctant entity is worlds apart from compelling that

entity to contribute financially to support government-

supervised commercial speech, when that speech di-

rectly benefits its own commercial interests. See

NAACP v. Hunt, 891 F.2d 1555, 1566 (11th Cir. 1990)

(“Government communication is legitimate so long as

the government does not abridge an individual’s ‘First

Amendment right to avoid becoming the courier for

such message.’ ”) (quoting Wooley, 430 U.S. at 717).

22

Justice Harlan made the same point in Lathrop v.

Donohue, 367 U.S. 820, 858 (1961) (concurring in the

judgment):

What seems to me obvious is the large difference in

degree between, on the one hand, being compelled to

raise one’s hand and recite a belief as one’s own,

and, on the other, being compelled to contribute dues

to [an organization] fund which is to be used in part

to promote the expression of views in the name of

the organization (not in the name of the dues payor),

which views when adopted may turn out to be con-

trary to the views of the dues payor.

Society frequently calls upon its members to pay taxes,

dues, or other assessments to support various organiza-

tions and entities both governmental and _ non-

governmental. But no one thinks that everyone who

makes such a payment thereby endorses to the last jot

and tittle the agenda of the recipient, because “the

connection between the payment of an individual’s dues

and the views to which he objects is factually so re-

mote.” Jd. at 859.

In sum, the speech at issue in this case is speech by a

Council established pursuant to federal law to achieve

defined governmental objectives. The members of the

Council are appointed by a government officer, and its

activities are subject to his direction and control. The

message that is conveyed by the Council is the govern-

ment’s message. The fact that it is funded by assess-

ments on those who benefit most directly from the

government program—and who have by a vote elected

to fund such a program—does not make the speech the

forced speech of someone else. It remains government

speech, and the fact that some of those compelled to

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23

support it—who are free to speak their own mind on the

subject—may object to the government’s message does

not give rise to a First Amendment violation.

CONCLUSION

For the foregoing reasons, the judgment below should

be reversed.

Respectfully submitted,

WAYNE R. WATKINSON JOHN G. ROBERTS, JR.*

RICHARD T. ROSSIER DAVID G. LEITCH

MCLEOD, WATKINSON & MILLER HOGAN & HARTSON L.L.P.

One Massachusetts Ave., N.W. 555 Thirteenth Street, N.W.

Washington, D.C. 20001 Washington, D.C. 20004

(202) 842-2345 (202) 637-5810

*Counsel of Record Counsel for Amicus Curiae