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

MAR & Qeop Te

No. 00-276 / WAR 8 200!

IN THE a CERRO GF 2 SS LI,

Supreme Court of the United States

UNITED STATES OF AMERICA AND UNITED STATES

DEPARTMENT OF AGRICULTURE,

Petitioners,

Vv.

UNITED FOODS, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

‘. for the Sixth Circuit

BRIEF AMICUS CURIAE OF THE

WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

DANIEL J. POPEO

R. SHAWN GUNNARSON

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Avenue, N.W.

Washington, D.C. 20036

: (202) 588-0302

Counsel for Amicus Curiae

March 8, 2001

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WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether the assessments imposed pursuant to

the Mushroom Promotion, Research, and Consumer

Information Act of 1990, 7 U.S.C. § 6101, et seq.,

on members of the mushroom industry for advertis-

ing programs designed to support the industry violate

the First Amendment.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED .000......ccccccccscscesccsessssessssesees i

TABLE OF AUTHORITIES 00..0.......cccccscosessssssessscosss iv

INTEREST OF AMICUS CURIAE ...0....csssccccsssseessese 1

SUMMARY OF ARGUMENT. .........c:csccssssssseesseesseessees

i scemtadntabibanomniitns 2

I. THE GOVERNMENT’S READING OF

WILEMAN UNNECESSARILY CONFLICTS

WITH THE COURT’S COMPELLED

TET SOMITE nisisshsivininasensevonessensnctanconnense 2

II. OFFICIALLY COMPELLED SUBSIDIES

OF EXPRESSIVE ACTIVITY MUST PASS

THE TEST OF STRICT SCRUTINY ....... 11

Ill. THE MUSHROOM ACT AND ORDER

INFRINGE RESPONDENT’S RIGHTS

UNDER THE FIRST AMENDMENT ..... 25

ana © anaecdb diplbcdkevs bevousinehnnickaciideneandnptienssensann 28

(iii)

iv

TABLE OF AUTHORITIES

Page

Cases:

44 Liquormart, Inc. v. Rhode Island, 517 USS.

Ee RI scoeseiscednnntiinsdcnnnactrcestarhaabelinctetnnts 1, 14, 15

Abood v. Detroit Bd. of Educ., 431 U.S. 209

LIFT TP itis asinisinlinceebsenesanaitatnasaggiimasieinaiusbinaseatateivianian passim

American Party v. White, 415 U.S. 767 (1974).. 26

- Board of Regents v. Southworth, 529 U.S. 217

CRITE sisicsenscceadiencciehiidibinides bias sdsmuielecadbanpiaiipions 4-5, 18-21, 24

Board of Trustees v. Fox, 492 U.S. 469, 473

CUTIE “hiciiniininteiaksentaminaiighunahaiiaiieneeameets 12

Central Hudson Gas & Elec. Corp. v. Public Serv.

Comm’n, 447 U.S. 557 (1980) ............ 13-15, 17

Chaplinsky v. New Hampshire, 315 U.S. 568

TIT: icsciaciichandnsinsgsdeteinancheduanthaaiaibaduinisrtunsaieiieeitande 18

Chicago Teachers Union v. Hudson, 475 U.S. 292

IEE debih taiaitineicili sh teaphenbhidiietiiiihdies congiediaanhcnn tiie 7, 9, 22

Colorado v. Hill, 530 U.S. 703 (2000) ............... 27

Edenfield v. Fane, 507 U.S. 761 (1993) ............ 14

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) 12

Glickman v. Wileman Bros. & Elliott, Inc., 521

SADE AEE AE ccbitinlasatiadiaipianendibidentiitbiinenss . passim

Greater New Orleans Broad. Ass’n, Inc. v. United

Beaten, GET UB. TTS (AGG) ccscereccccssvessvesese 14

Hurley v. Irish-American Gay Group, 515 US.

MMII sa Geecsladeiaicirlindenetibitincinlantsiabieassndaaneaiesteniieatl 3, 16

Keller v. State Bar, 496 U.S. 1 (1990) .............. passim

Lathrop v. Donohue, 367 U.S. 820 (1960) ........ 6, 23-24

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 506

CISIINEEA. anchisitaahhauuaisandistaieuaccsndonuinbiauniledan 5, 7, 8, 21, 22, 27

Machinists v. Street, 367 U.S. 740 (1961) ........ 23

Miami Herald Publ’g Co. v. Tornillo, 418 US.

Se Ra O TOD: cschinnicsbescclenncicbisedasebissmnidahninnanlatensiisininiiction 17

New York Times Co. v. Sullivan, 376 U.S. 254

PIII D dehaiakssshcneveienciicioicnsbinicginekninnbeinetuciinbenninnns 13

Pacific Gas & Elec. Co. v. Public Util. Comm’n,

7, Ot es ane oR Eee aera ~~ 3, 4 27

R.A.V. v. St. Paul, 505 U.S. 377 (1992) ........... 12

enna

Vv

TABLE OF AUTHORITIES—Continued

Page

Riley v. National Federation of the Blind, 487

SPs. CHER SEIOD - ccidiciensnenasoarbescnanscnioninulls 3

Roth v. United States, 354 U.S. 476 (1957) ..... 18

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) 14

Snepp v. United States, 444 U.S. 507 (1980) ... 26

Virginia State Bd. of Pharm. v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976) 13

West Virginia Bd. of Educ. v. Barnette, 319 U.S.

IG COD sitiseticeeiciceeeenendea 3, 6, 10, 23

Williamson v. Lee Optical, 348 U.S. 483 (1955) 10

Wooley v. Maynard, 430 U.S..705 (1977) .......... 3, 9, 23

Zauderer v. Office of Disciplinary Counsel, 471

REI, WE CID <iiccccinnnsentsintcrneemensntideienennenciices 14

Constitution, Statutes, and Regulations:

FCB. BI stcreerstisvieastatteciieceesens 25

Fe Fe EE ntcntcsineieainaosaienenians 25

8 Gr ie i NEE. ceicscivernentnecieiaenienieebasamtieaiinn 25

F Ee earcicnnnslitdsiiaenionnatit 25

pe | A Coa ean eutuar tm en 26

Fs. PIED cats cieicaniniainphaeinecipshentiiaeaambianstonins 25

U.S. Const. amend. I (freedom of speech) ........ passim

Miscellaneous:

The Supreme Court, 1999 Term—Leading Cases,

114 Harv. L. Rev. 279 (2000) ..................... 19, 20, 21

INTEREST OF AMICUS CURIAE

The Washington Legal Foundation (WLF) is a

nonprofit public interest law and policy center based

in Washington, D.C., with supporters across the Nation.

WLF regularly appears in legal proceedings before

federal and State courts in cases raising important

issues under the First Amendment Free Speech Clause.

See, e.g., Glickman v. Wileman Bros. & Elliott, Inc.,

521 U.S. 457 (1997); 44 Liquormart, Inc. v. Rhode

| Island, 517 U.S. 484 (1996); Keller v. State Bar, 496

U.S. 1 (1990). WLF submits this brief in support of

Respondent and with the consent of all parties. Letters

of consent have been filed with the Clerk of the Court.'

SUMMARY OF ARGUMENT

Respondent United Foods, Inc. (United) accuses

} the United States, in effect, of being a bully in the

marketplace of ideas. The United States replies that

Wileman means that “the compelled funding of

expressive activities does not violate the First Amend-

ment so long as .. . the expressive activities are either

non-ideological or germane to the statutory or

regulatory purpose....” Br. Pet. 16n.9. Interpreted

so broadly, Wileman directly conflicts with the Court’s

i consistent understanding of compelled speech. If the

Court wishes to harmonize Wileman with its compelled

speech cases, that decision must be give its narrowest

possible holding. Such a reading would limit Wileman

to upholding the compelled funding of expressive

activities only when the funding scheme arises in a

pervasively regulated context fairly indistinguishable

from what the Court identified in Wileman itself.

1 No counsel for a party authored this brief in whole or in

part, and no person or entity, other than the Washington Legal

Foundation, its supporters, and its counsel, made a monetary -

contribution to the preparation and submission of this brief.

2

If the Court wishes to reconsider Wileman,

however, it should adopt strict scrutiny as the

constitutional standard for assessing compelled subsidy

claims. Government programs compelling private

financial support for expressive activities always raise

constitutional issues, regardless of the subject matter

of the expression. It is the essential fact of compul-

sion, not the accident of subject matter, that makes

compelled speech a matter of core First Amendment

concern. Given its proximity to core First Amendment

principles, a governmentally mandated subsidy should

be struck down unless it serves a compelling govern-

ment interest and is narrowly tailored to avoid

unnecessary infringements on free speech.

The Mushroom Act and Order fail the strict

scrutiny test. Promoting the consumption of mush-

rooms does not qualify as a compelling government

interest. Even if it did, forcing growers to financially

support speech with which they disagree is not a

narrowly tailored means to that end.

ARGUMENT

I. THE GOVERNMENT’S READING OF

WILEMAN UNNECESSARILY CONFLICTS

WITH THE COURT’S COMPELLED SUBSIDY

CASES.

The United States contends that Glickman v.

Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997)

stands for the following rule: “the compelled funding

of expressive activities does not violate the First

Amendment so long as,. . . the expressive activities

are either non-ideological or germane to the statutory

or regulatory purpose ....” Br. Pet. 16 n.9. This

reading of Wileman must be rejected. For if adopted,

3

Wileman will conflict with this Court’s decisions

sharply constraining the government’s power to compel

speech or the funding of speech.

The First Amendment declares, “Congress shall

make no law .. . abridging the freedom of speech.”

U.S. Const. amend. I. “‘Since all speech inherently

involves choices of what to say and what to leave

unsaid,’ . . . one important manifestation of the

principle of free speech is that one who chooses to

speak may also decide ‘what not to say.’” Hurley v.

Irish-American Gay Group, 515 U.S. 557, 573 (1995)

(quoting Pacific Gas & Elec. Co. v. Public Util.

Comm’n, 475 U.S. 1, 11, 16 (1986) (plurality opinion);

see also West Virginia Bd. of Educ. v. Barnette, 319

U.S. 624, 642 (1943) (striking down a Pennsylvania

law requiring school children to recite the Pledge of

Allegiance regardless of their religious objections);

Wooley v. Maynard, 430 U.S. 705, 713-15 (1977)

(invalidating a New Hampshire law imposing criminal

penalties on motorists who fail to display the state

motto, “Live Free or Die,” on automobile license

plates). Indeed, the Court has emphasized that the

difference between compelled speech and compelled

silence “is without constitutional significance, for the

First Amendment guarantees ‘freedom of speech,’ a

term necessarily comprising the decision of both what

to say and what not to say.” Riley v. National

Federation of the Blind, 487 U.S. 781, 796-97 (1988).

The same principles govern claims challenging the

validity of government programs that mandate private

financial support for officially approved or authorized

expressive activity. Abood v. Detroit Board of Educa-

tion, 431 U.S. 209 (1977) and Keller v. State Bar of

4

California, 496 U.S. 1 (1990) are the leading cases on

this point.

Abood arose from an “agency shop” arrangement

between a public school board and a teachers’ union.

Teachers who declined to join the union were nonethe-

less required to pay the union an “agency fee” equal

to the dues paid by union members. 431 U:S. at 211.

The government justified forcing nonmembers to pay

by pointing to its interest in maintaining “labor peace,”

id. at 224, which Congress had determined was directly

advanced by a system of exclusive collective bargaining.

See id. at 220-24.

Under that system a union designated as an

exclusive bargaining agent is required to represent all

employees within the bargaining unit (including

nonmember employees). Jd. at 221. The Court

perceived a free rider problem, however. Nonmembers

have a financial incentive “to refuse to contribute to

the union while obtaining benefits of union representa-

tion that necessarily accrue to all employees” unless

nonmembers could be required to pay for such benefits.

Id. at 222. Because of the government’s interest in

preserving “labor peace,” id. at 224, and the free rider

problem that augmented that interest, the Court upheld

the imposition of mandatory union fees on nonmem-

bers. Id. at 225. a

But the Court went on to draw a key distinction

between activities “germane” to the government’s

interest in preserving peaceful labor relations and

activities that are not.” The Court acknowledged that

. Although courts have occasionally had difficulty in drawing

this line with precision, see Board of Regents v. Southworth,

(continued...)

5

the First Amendment poses no obstacle per se to the

expenditure of union monies “for the expression of

political views, on behalf of political candidates, or

toward the advancement of other ideological causes

not germane to its duties as collective-bargaining

representative.” Id. at 235 (footnote omitted). Using

mandatory union fees for such purposes is off-limits.

A union may constitutionally devote resources to

activities not germane to the purpose of maintaining

the system of exclusive collective bargaining, the Court

said, only if “financed from charges, dues, or assess-

ments paid by employees who do not object to

advancing those ideas and who are not coerced into

doing so against their will by the threat of loss of

governmental employment.” Jd. at 236.

Animating this distinction, the Court said, was the

threat posed by compelled subsidies to core First

Amendment concerns:

The fact that the appellants are compelled to

make, rather than prohibited from making,

contributions for political purposes works no

less an infringement of their constitutional

rights. For at the heart of the First Amend-

ment is the notion that an individual should

be free to believe as he will, and that in a free

society one’s beliefs should be shaped by his

2 (...continued)

529 U.S. 217, 231-32 (2000), reported decisions have repeatedly

emphasized that the only government interest that justifies

impingement on the First Amendment rights of nonunion

employees is the interest in maintaining a system of exclusive

bargaining. See, e.g., Lehnert v. Ferris Faculty Ass’n, 500 U.S.

506, 520-21 (1991).

6

mind and his conscience rather than coerced

by the State.

Id. at 234-35.°

Keller v. State Bar of California, 496 U.S. 1 (1990)

applied Abood’s constitutional analysis in the context

of mandatory dues paid to an integrated State bar

association. There the Court found that such compel-

iing the payment of bar dues infringes lawyers’ First

Amendment rights unless used to “fund activities

germane to . . . regulating the legal profession or

‘improving the quality of the legal service available

to the people of the State.’” Id. at 14 (quoting Lathrop

v. Donohue, 367 U.S. 820 (1960)).

Similar to its reasoning Abood the Court agreed

with the government that “the compelivd association

and integrated bar are justified by the State’s interest

in regulating the legal profession and improving the

quality of legal services.” Id. at 13-14. Once again,

the Court identified a “free rider” problem that

augmented this limited justification for compelling the

subsidization of bar-related activities. “It is entirely

appropriate that all of the lawyers who derive benefit

from the unique status of being among those admitted

to practice before the courts should be called upon to

pay a fair share of the cost of the professional

involvement in this effort.” Id. at 12.

3’ The Court has never suggested that a different

constitutional analysis obtains depending on whether the

compulsion takes the form of government efforts to force

individuals to utter specific words (as in Barnette) or the form

of monetary exactions to finance speech by non-government

entities (as in Keller and Abood).

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Yet the Court hastened to add that the First

Amendment prohibited the bar association from using

such compelled funding for\“activities of an ideological

nature.” Jd. at 14. Among such forbidden uses for

officially compelled funds included “endorse[ment] or

advance[ment] [of] a gun control or nuclear weapons

freeze initiative,” id. at 16, activities in which the State

Bar of California had already engaged. Id. at 15.

Abood, Keller, and their progeny thus establish

that mandatory government subsidies imposed to fund

expressive activity must satisfy exacting First Amend-

ment scrutiny. First, the government must demon-

strate that the compulsory financial support serves

some heightened government interest. Lehnert v.

Ferris Faculty Ass’n, 500 U.S. 506, 519 (1991)

(plurality). Second, the funded activity must be

“germane” to the government interest asserted as

compelling. Id.; see Keller, 496 U.S. at 13 (“Abood

held that a union could not expend a dissenting

individual’s dues for ideological activities not ‘germane’

to the purpose for which the compelled association was

justified: collective bargaining.”). Third, the compul-

sory funding scheme must be narrowly tailored to serve

that compelling interest. Chicago Teachers Union v.

Hudson, 475 U.S. 292, 303 & n.11 (1986); Pacific Gas

& Electric Co. v. Public Util. Comm’n, 475 U.S. 1, 19

(1986) (plurality). This means the mandatory subsidy

at issue must not “significantly add to the burdening

of free speech that is inherent in the allowance” of

any amount of compulsory funding of expressive

activity. Lehnert, 500 U.S. at 519 (plurality).

_ These well-settled principles contradict the govern-

ment’s reading of Glickman v. Wileman Brothers &

Elliott, Inc., 521 U.S. 457 (1997). In that case a group

8

of California fruit growers challenged regulations issued

by the Secretary of Agriculture, which required them

to pay for a series of generic advertisements extolling

the virtues of peaches, plums, and nectarines. IJd- at

460-61. The growers argued that the assessments

unconstitutionally required them to engage in objection-

able speech. However, the Court held in a narrowly

divided decision that the regulations at issue there

did not violate the First Amendfnent. It reached this

conclusion only because the growers “agree[d] with

the central message of the speech,” and therefore the

regulations did not require the growers to “repeat an

objectionable message out of their own mouths” or

otherwise “compel any person to engage in any actual

or symbolic speech.” Jd. at 469-70.

The United States interprets Wileman to mean

that “compelled funding of expressive activities does

not violate the First Amendment so long as. . . the

expressive activities are either non-ideological or

germane to the statutory or regulatory purpose.” Br.

Pet. 16 n.9. If true, Wileman stands in direct

opposition to Abood and Keller.

First, the constitutional principles enunciated and

applied in Abood and Keller extend to the compelled

funding of any speech or expressive activity, not simply

to “nonideclogical” speech. As the Court has observed,

“our cases have never suggested that expression about

philosophical, social, artistic, economic, literary, or

ethical matters—to take a nonexhaustive list of

labels—is not entitled to full First Amendment

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

209, 231 (1977); see also Lehnert, 500 U.S. at 521-522

(plurality) (“First Amendment protection is in no way

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9

limited to controversial topics or emotionally charged

issues.”).

The capaciousness of Abood and Keller is a natural

outgrowth of their roots in more general compelled

speech doctrine. Wooley v. Maynard, 430 U.S. 705

(1977), for instance, stressed that the First Amendment

protects “the right to refrain from speaking at all,”

not only the right to refrain from speaking on political

or controversial subjects. Id. at 714 (emphasis added).

The government’s assertion that compelled speech

deserves no First Amendment protection merely

because the speech is nonideological runs contrary to

the Court’s decisions.

Second, the government’s portrayal of Wileman

is also out of harmony with Abood, Keller, and other

compelled subsidy cases, because it attempts to dilute

the “narrow tailoring” requirement central to this

Court’s established understanding of the First_

Amendment. The United States contends that

compelled financial support of the expressive activities

of private parties should be upheld so long as it is

“germane to the statutory or regulatory purpose.”

Br. Pet. 16 n.9. Framed in such loose terms, the

government’s standard amounts to little more than

rational basis review of compelled speech. Not only

does this contradict Abood. See Keller, 496 U.S. at

13. It runs contrary to this Court’s decisions, which

leave no doubt that the First Amendment prohibits

the government from treating one’s right not to speak

(or subsidize speech) so cavalierly. See, e.g., Chicago

Teachers Union v. Hudson, 475 U.S. 292, 303 (1986).

Consider how the Court’s First Amendment

landmarks would look under the government’s view

10

of compelled speech. Schoolchildren could be dra-

gooned into reciting the Pledge of Allegiance despite

their most heartfelt religious objections. But see West

Virginia Bd. of Education v. Barnette, 319 U.S. 624,

642 (1943). Inculcating a spirit of national unity would

appear, even in ordinary times, to qualify as an

“important regulatory objective,” and compelled

recitation of the Pledge of Allegiance is undoubtedly

“germane” to that objective. Yet even at the height

of World War II, the Court stoutly rejected the notion

that fostering national unity ought to override First

Amendment concerns. Id. at 640-41. It therefore

strains credulity to assert, as the government does,

that a merely rational basis review—the same standard

used to review the economic regulation of opticians,

Williamson v. Lee Optical, 348 U.S. 483 (1955)—

adequately protects the core First Amendment concerns

implicated when the government marshals its power

to coerce the financial support of speech.

Ali this leaves the Court in something of a

quandary. If read according to its broadest language,

- as the government suggests, Wileman will stand in

direct conflict with a long line of firmly established

compelled speech and compelled subsidy cases. The

Court can avoid this conflict by reading Wileman

according to its narrowest ground of decision instead.

That saving interpretation is the one advocated by

United Foods, namely that Wileman turns on “the

comprehensive nature of regulations governing the tree

fruit industry and marketplace. ” Br. Opp. 9. If the

Court wishes to reexamine Wileman, as the Institute

for Justice suggests, see Br. Amicus Curiae Institute

for Justice, then it will be helpful to review the Court’s

compelled speech decisions and ask what the First

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11

Amendment demands in compelled subsidy cases, and

why. The answer, we think, is simple and compelling:

the First Amendment prohibits the government from

imposing a mandatory subsidy, unless it passes the

test of strict scrutiny.

II. OFFICIALLY COMPELLED SUBSIDIES OF

EXPRESSIVE ACTIVITY MUST PASS THE

TEST OF STRICT SCRUTINY.

An analysis of why compelled speech and its cousin,

the compelled subsidy, merit First -Amendment

protection properly begins with the contrary position,

set out by the United States and its amici. They make

the sweeping argument that the First Amendment does

not reach a government program compelling the

financial support of generic advertising. The govern-

ment would uphold any government-ordered subsidy,

even of admittedly expressive activities, “so long as

. . the expressive activities are either non-ideological

or germane to the statutory or regulatory purpose .

..” Br. Pet. 16 n.9. Amici Curiae American

Mushroom Institute, et al. (Mushroom Institute) would

go further. They assert that “compelled funding of

speech raises no First Amendment issue unless the

speech is political or ideological.” Br. Amici Curiae

American Mushroom Inst. 9 (emphasis added). We

respectfully disagree.

Whether “the speech funded by the Mushroom Act

is... after all, about mushrooms,” id. at 6, is entirely

beside the point. This Court has specifically rejected

a subject matter test for evaluating compelled subsidy

claims under the First Amendment. “Nothing in the

First Amendment or our cases discussing its meaning

makes the question whether the adjective ‘political’

can properly be attached to those beliefs the critical

12

constitutional inquiry.” Abood, 431 U.S. at 232.

Indeed, the Court has “never suggested that expression

about philosophical, social, artistic, economic, literary,

or ethical matters—to take a nonexhaustive list of

labels—is not entitled to full First Amendment

protections.” Abood v. Detroit Board of Education,

431 U.S. 209, 231 (1977) (emphasis added). Speech

about mushrooms is as entitled to constitutional

protection as speech about tax reform, the ethics of

redistribution, or the novels of P.G. Wodehouse.

Perhaps the government’s real objection to United

Foods’ claim lies not so much with the speech at issue

being nonideological, but rather with its being

commercial. Maybe the government’s position rests

at bottom on the assumption that commercial speech

is “a sort of second-class expression.” R.A.V. v. St.

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

ring). If this is a fair reading of the government’s

argument, two answers suggest themselves.

First, one might glibly point out that “commercial

speech” is a term of art under the First Amendment.

It does not mean “whatever can be expressed in

economic terms.” Instead the Court has limited its

meaning to speech that “propose[s] a commercial

transaction.” Board of Trustees v. Fox, 492 U.S. 469,

473 (1989). Fully protected speech—according to

Abood, this includes speech on economic matters—is

not transformed into commercial speech just because

it is uttered by a corporation, First Nat’l Bank v.

Bellotti, 435 U.S. 765 (1978), or because the speaker

is motivated by a desire for a profit. “Some of our

most valued forms of fully protected speech are uttered

for a profit.” Fox, 492 U.S. at 482. In its leading

postwar free speech case, for example, the Court

a ea

13

afforded full First Amendment protection to the

contents of a paid advertisement soliciting money.

See New York Times Co. v. Sullivan, 376 U.S. 254

(1964).

Second, a government order compelling speech or

the financial support of speech is quite unlike a

government order regulating speech. The distinction

is amply supported by the Court’s decisions and is

relevant, if not controlling, in deciding the question

presented. To see that distinction in sharper relief,

it will be helpful to briefly review this Court’s

commercial speech jurisprudence.

It lies beyond dispute that the First Amendment

safeguards the public’s interest in “the free flow of

commercial information.” Virginia State Bd. of Pharm.

v. Virginia Citizens Consumer Council, Inc., 425 U.S.

748, 765 (1976). While emphasizing that a government

ban on advertisements may violate the First Amend-

ment, id. 773, at the Court added that the Constitution

“does not prohibit the State from insuring that the

stream of commercial information flow cleanly as well

as freely.” Id. at 772. Regulations may validly require

that commercial advertisements “appear in such a form,

or include such additional information, warnings, and

disclaimers, as are necessary to prevent [their] being

deceptive.” Jd. at 772 n.24. In a later case the Court

explained that, to merit constitutional protection,

commercial speech “must concern lawful activity and

not be misleading.” Central Hudson Gas & Elec. Corp.

v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 566

(1980).

To eliminate potential deception, the government

may impose mandatory disclaimer requirements on

14

commercial advertising. Zauderer v. Office of Disciplin-

ary Counsel, 471 U.S. 626 (1985) sustained an Ohio

rule requiring lawyers whose advertisements are

potentially misleading to include warnings or disclaim-

ers in the advertisements in order to “dissipate the

possibility of consumer confusion or deception.” Id.

at 651. However, the Court has firmly distinguished

between a mandatory disclaimer and compelled speech.

“Nothing in Zauderer suggests, however, that the State

is equally free to require corporations to carry the

messages of third parties, where the messages them-

selves are biased against or expressly contrary to the

corporation’s views.” Pacific Gas & Elec. Co. v. Public

Util. Comm’n, 475 U.S. 1, 15 n.12 (1986) (plurality

opinion).

Based on these principles the Court has laid down

a proverbial three-part test: the government may

regulate commercial speech only if (1) the governmental

interest underlying the regulation is “substantial,” (2)

the “regulation directly advances the governmental

interest asserted,” and (3) the regulation “is not more

extensive than is necessary to serve that interest.”

Central Hudson, 447 U.S. at 566. Since laying down

this test in Central Hudson the Court has applied it

in a wide variety of cases challenging restrictions on

commercial speech. See, e.g., Greater New Orleans

Broad. Ass’n, Inc. v. United States, 527 U.S. 173 (1999)

(striking down a federal ban on broadcast advertising

for casinos); 44 Liquormart, Inc. v. Rhode Island, 517

U.S. 484 (1996) (invalidating a state statute that

prohibited liquor stores from advertising the prices

of their products); Rubin v. Coors Brewing Co., 514

U.S. 476 (1995) (invalidating a regulation prohibiting

beer labels from displaying alcohol content); Edenfield

15

v. Fane, 507 U.S. 761 (1993) (invalidating a regulation

forbidding accountants from directly soliciting prospec-

tive clients).

But the Court has never applied Central Hudson,

a test devised for the regulation of commercial speech,

to review government actions compelling an individual

or a business entity to engage in speech where, as here,

such compelled speech is not necessary to prevent a

company’s own advertising from being deceptive. And

with good reason.

The Court has expressed ‘two justifications for

affording the government more leeway in its regulation

of commercial speech: (1) “the greater ‘objectivity’

of commercial speech justifies affording the State more

freedom to distinguish false advertisements from true

ones;” and (2) “the greater ‘hardiness’ of commerciai

speech, inspired as it is by the profit motive, likely

diminishes the chilling effect that may attend its

regulation.” 44 Liquormart, Inc. v. Rhode Island, 517

U.S. 484, 499 (1996) (plurality opinion). Neither has

any relevance to government efforts to compel speech.

First, government compulsion of speech cannot

logically advance the government’s interest in prevent-

ing the dissemination of false advertising. The only

speech at issue is compelled by the government. It

follows that the compulsion can never be said to serve

the purpose of preventing the dissemination of false

or misleading statements.

Second, compelled commercial speech is no hardier

than other forms of compelled speech. In one sense,

all forms of compelled speech are extremely ‘hardy’

since they are backed by the force of law. Moreover,

a chilling effect on voluntary speech is not one of the

16

dangers of compelled speech, whether commercial or

noncommercial.

On reflection, it makes no sense to think of

compelled subsidies in these terms. Treating the

compelled financial support of speech about a commer-

cial topic like “commercial speech” therefore turns out

to be a category mistake.

Although the State may at times “prescribe

what shall be orthodox in commercial advertis-

ing” by requiring the dissemination of “purely

factual and uncontroversial information,” . .

. outside that context it may not compel

affirmance of a belief with which the speaker

disagrees .... Indeed this general rule, that

the speaker has the right to tailor the speech,

applies not only to expressions of value,

opinion, or endorsement, but equally to

statements of fact the speaker would rather

avoid, . . . subject, perhaps to the permissive

law of defamation. ... Nor is the rule*s—__

benefit restricted to the press, being enjoyed

by business corporations generally and by

ordinary people engaged in unsophisticated

expression as well as by professional publishers.

Its point is simply the point of all speech

protection, which is to shield just those choices

of content that in someone’s eyes are mis-

guided, or even hurtful.

Hurley v. Irish-American Gay Group, 515 U.S. 557,

573-74 (1995) (citations omitted).

Even apart from Abood, Keller, and their progeny,

the Court has left no question that these principles

equally apply to speech on the subject of commerce.

17

In Pacific Gas & Elec. Co. v. Public Util. Comm’n,

475 U.S. 1 (1986) (plurality opinion), a privately owned

utility company challenged a regulatory order requiring

it to “include in its billing envelopes speech ‘of a third

party with which the utility disagrees.” Id. at 4.

Despite the fact that the utility company’s billing

statements had to do with commerce, the Court applied

strict scrutiny; rather than the more relaxed Central

Hudson standard, and concluded that the order was

unconstitutional because it was “not a narrowly

tailored means of furthering a compelling state

interest.” Id. at 21; see also Miami Herald Publ’g Co.

v. Tornillo, 418 U.S. 241 (1974) (holding that the First

Amendment bars the government from compelling a

newspaper to provide a sounding board for views other

than its own).

With these decisions and their animating principles

in view, it becomes crystal clear that the government

and its amici are mistaken in their assertion that a

compelled subsidy lies outside the ambit of First

Amendment protection “unless the speech is political

or ideological.” Br. Amici Curiae American Mushroom

Inst. 9; see Br. Pet. 16 n.9. It is the essential fact of

government compulsion, not the accident of subject

matter, that determines whether speech merits First

Amendment protection.

A contrary interpretation of the First Amendment

would lead to bizarre results. Regulation of commercial

speech would proceed only if it satisfied the Central

Hudson test, see 447 U.S. at 566, while governmentally

compelled speech would receive no constitutional

protection at all. Also, the government’s position

would relegate “compelled speech on a commercial

topic” to the constitutional underworld of unprotected

18

speech, alongside obscenity and fighting words. See

Roth v. United States, 354 U.S. 476 (1957) (obscenity);

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

(fighting words). Nothing in the text of the First

Amendment or this Court’s gloss on it supports such

a result.

Next, the Mushroom Institute insists that “[a}

compelled funding claim is thus far removed from the

center of what the First Amendment prohibits.” Br.

Mushroom Inst. 10. On the contrary. As the Court

acknowledged in Abood, a compelled funding claim like

United Foods’ implicates concerns “at the heart of the

First Amendment.” Abood v. Detroit Board of

Education, 431 U.S. 209, 254-35 (1977) (emphasis

added). In Abood, for instance, the Court regarded

forced contributions for purposes not germane to the

maintenance of an exclusive bargaining system as

profoundly violative of core First Amendment princi-

ples. See id. at 235.

The government’s interpretation of the First

Amendment, which would permit the government to

compel financial support for any “nonideological”

speech, must therefore be rejected. There remains

the problem of identifying the correct rule of decision.

If not the government’s position, then what?

One aspect of the Abood-Keller test recently posed

difficulties for the Court in Board of Regents v.

Southworth, 529 U.S. 217 (2000). At issue there was

“a First Amendment challenge to a mandatory student

activity fee imposed” by the University of Wisconsin.

Id. at 221. Certain students “contended that the

University must grant them the choice not to fund

those [student groups] that engage in political and

19

ideological expression offensive to their personal

beliefs.” Jd. at 227.

As the Court readily acknowledged, Abood and

Keller dictated that “students who attend the Univer-

sity cannot be required to pay subsidies for the speech

of other students without some First Amendment

protection.” Jd. at 231 (emphasis added). However,

because “it is not for the Court to say what is or is

not germane to the ideas to be pursued in an institu-

tion of higher learning,” id. at 232, the Court shied

away from applying these decisions. Finding Abood

and Keller “neither applicable nor workable in the

context of extracurricular speech at a university,” id.

at 230, the Court turned to its public forum decisions,

which it thought “instructive here by close analogy.”

Id. at 229-30. From these the Court drew the

conclusion that the First Amendment rights of

objecting students were adequately protected by “the

requirement of viewpoint neutrality in the allocation

of funding support.” Jd. at 233. Accordingly, the

Court held that the University of Wisconsin could

compel all students to financially support student

organizations, so long as it adhered to the principle

of viewpoint neutrality in distributing funds. Id. at

233-34.

Southworth injected considerable uncertainty into

compelled speech doctrine by leaning on public forum

analysis. See The Supreme Court, 1999 Term—Leading

Cases, 114 Harv. L. Rev. 279, 285 (2000) (calling the

public forum metaphor “a conceptually troubled

categorical tool”). This is most clearly seen by

comparing the constitutional claim pressed by the

students with the Court’s holding. The students

pressed a claim to be exempt from funding the

20

university's objectionable speech, just as the claimants

in Abood and Keller had done. See id. at 227.

However, the Court “substitut[ed] equality for freedom

of conscience,” 114 Harv. L. Rev. at 287, by answering

a compelled speech claim with the doctrinal non

sequitur of viewpoint neutrality. See id. at 233-34.

In our opinion, this incongruency between claim

and relief in Southworth can be explained by the

Court’s unwillingness (or inability) to apply a “ger-

maneness” test to a public university. The Court itself

conceded as much. “If it is difficult to define germane

speech with ease or precision where a union or bar

association is the party, the standard becomes all the

more unmanageable in the public university setting,

particularly where the State undertakes to stimulate

the whole universe of speech and ideas.” I/d. at 232.

Determining whether a particular activity is “germane”

to the university’s compelling interest in imposing a

mandatory student fee would have required the Court

to articulate a baseline purpose from which departures

(at some unspecified point) constitute a First Amend-

ment violation. See Abood v. Detroit Board of

Education, 431 U.S. 209, 235-36 (1977); Keller v. State

Bar of California, 496 U.S. 1, 138-14 (1990).

Because the Court was reluctant to identify a single

“core” purpose served by a state university—doing so

would have been tantamount to telling the university

how to do its job—the Court faced a dilemma. The

kind of factual analogies on which the Court had

previously relied, see Keller, 496 U.S. at 12, broke down

in Southworth. That case arose in an institutional

setting wholly unlike unions and bar associations,

which had given rise to the compelled subsidy cases

in the first place, and the Court evidently regarded

ee oo ee

21

the Abood-Keller test in this setting as a procrustean

bed. At the same time, refusing to apply that test left

the students’ compelled subsidy claim without a

satisfactory resolution.

Southworth thus revealed a defect in the Abood-

Keller test. Inquiring whether compelled monies are

devoted to “ideological activities not ‘germane’ to the

purpose for which the compelled association was

justified,” Keller v. State Bar, 496 U.S. 1, 13 (1990),

may appear natural when limited to unions, State bar

associations, and other institutions that serve a single

purpose justifying compelled association. However,

as Southworth amply demonstrates, the germaneness

inquiry becomes a distraction when applied to institu-

tions for which such a single purpose cannot be fairly

identified.

Viewpoint discrimination supplies only a makeshift

solution. At best, it avoids a doctrinal problem of the

Court’s own making. At worst, it generates decisions

that “appear unprincipled.” 114 Harv. L. Rev. at 287.

Nor can the Court simply abandon the field. The

Court’s decisions interpreting the First Amendment

leave no doubt that compelled subsidies raise grave

constitutional concerns. See, e.g., Abood v. Detroit Bd.

of Educ., 431 U.S. 209, 234-35 (1977); Keller, 496 U.S.

at 9-10.

The better solution lies with a bit of doctrinal

editing. As currently conceived, Abood-Keller comprises

a three-part test. First, the government must

demonstrate that the compulsory financial support

serves some heightened government interest. Lehnert

v. Ferris Faculty Ass’n, 500 U.S. 506, 519 (1991)

(plurality). Second, the funded activity must be

22

“germane” to the government interest asserted as

compelling. Keller, 496 U.S. at 13. Third, the compul-

sory funding scheme must be narrowly tailored to serve

that compelling interest. Chicago Teachers Union v.

Hudson, 475 U.S. 292, 303 & n.11 (1986). Because

the troubles stem from the second element of the test,

it ought to be scrapped. The resulting test would have

only two elements: proof of heightened government

interest and the requirement of narrow tailoring. In

other words, the Abood-Keller test ought to be replaced

with strict scrutiny. Doing so would carry several

advantages.

First, strict scrutiny fairly describes the level of

judicial scrutiny applied in prior decisions. The Court

has used different terms to describe the showing

required of the government in demonstrating the

importance of its challenged policy interest. While

Abood itself was silent on the question, subsequent

cases have required the government to identify an

interest that is “vital,” Lehnert v. Ferris Faculty Ass’n,

500 U.S. 506, 519 (1991), or “compelling.” Chicago

Teachers Union v. Hudson, 475 U.S. 292, 303 n. 11

(1986). Whatever the precise verbal formulation, these

decisions establish that the government bears an

extremely heavy burden when it seeks to defend a

program compelling the financial support of speech.

Requiring the government to defend a compelled

subsidy by producing a “compelling interest” thus finds

sturdy precedential support.

Requiring the government to show that a compelled

subsidy program is “carefully tailored to minimize the

infringement,” id. at 303, of free speech is likewise

established by this Court’s decisions. Jd. at 303 n.11.

Such an inquiry into the tailoring of means to ends

Bie net Aa, tls 1 tance

Se ree me

+. nee

23

will allow the Court to assess the need for employing

compulsory funding as a statutory or regulatory tool

while avoiding the difficulties posed by asking whether

a particular expenditure is “germane” to a compelling

interest. In short, prior decisions point the way toward

adopting strict scrutiny as the correct standard in

compelled subsidy cases.‘

Second, strict scrutiny rationalizes First Amend-

ment jurisprudence. Not only does it make compelled

speech doctrine internally consistent by laying subsidy

cases like Abood and Keller on the same principled

foundation as compelled speech cases like Barnette and

Wooley. It also supplies a persuasive explanatory

principle for reconciling the entire line of compelled

subsidy cases, including spelling out the decisive

distinction between Machinists v. Street, 367 U.S. 740

(1961) and Abood, or Lathrop v. Donohue, 367 U.S.

820 (1960) and Keller. A close reading of these

decisions through the lens of strict scrutiny illuminates

why the programs in Street and Lathrop were upheld

and those in Abood and Keller were not. The govern-

ment has a compelling interest in preserving the

collective bargaining system and the integrated bar.

See Street, 367 U.S. at 760-61; Lathrop, 367 U.S. at

* One might object that applying strict scrutiny to compelled

subsidies overlooks the “free rider” problem, on which this Court

partly relied to uphold the exclusive bargaining system and

the integrated bar. See Abood v. Detroit Board of Educ., 431

U.S. 209, 222 (1977); Keller v. State Bar of Cal., 496 U.S. 1,

12 (1990). However, the “free rider” problem does not represent

an independent justification for compelling the financial support

of speech. It only supplies a reason for concluding that such

a program, when it serves a compelling interest, is narrowly

tailored because allowing a free speech exemption would fatally

undermine the program.

24

238. On the other hand, using mandatory dues for

purposes not closely related to these ends fails the test

of narrow tailoring. See Abood, 431 U.S. at 232, 235;

Keller, 496 U.S. at 13-14.

Keller and Abood can thus be viewed as exercises

in strict scrutiny. Certainly it is reasonable to say

that the purposes found to justify compulsory speech

in these cases—promoting industrial peace by preserv-

ing the system of collective bargaining and preserving

the benefits of an integrated bar—qualify as compelling

government interests. Moreover, the decisions make

accentuate the point that spending money obtained

through compulsion for purposes far removed from

these central ends fails strict scrutiny, if only because

such expenditures are not narrowly tailored.

Third, strict scrutiny avoids the difficulties posed

by the germaneness test. Take Southworth, for

instance. Applying strict scrutiny there would have

allowed the Court to reach the same result while

avoiding a Hobson’s choice. The Court could have

explained that the University of Wisconsin had

identified a compelling interest in educating its

students. On this point there could be little dispute.

The salient questions would then focus on whether

the compulsory student fee was narrowly tailored to

the university’s asserted interest. A reasonable answer

would be for the Court to find that the university’s

program was narrowly tailored because a free rider

problem threatened to undermine its entire student

organization system, much as the free rider problem

faced in Abood and Keller. In short, applying the strict

scrutiny test would have enabled the Court in South-

worth to resolve the objecting students’ compelled

subsidy claims without having to tell the university

25

what its “core” purposes are or shifting from a

freedom-oriented claim to an equality-oriented remedy.

Fourth, strict scrutiny furnishes a universally-

applicable, familiar, and workable rule of decision.

Unlike the germaneness test, see Keller, 496 U.S. at

12, strict scrutiny does not depend on finding

similarities between the institution from which a

compelled subsidy arises and a labor union or bar

association. It is therefore not so fact-dependant that

it prevents the Court from fully vindicating the free

speech claims brought in factual contexts far afield

from labor unions and State bar associations.

For all these reasons, the Court should adopt strict

scrutiny as the constitutional standard for assessing

compelled subsidy cases. The rule would then be that

the government may compel speech or financial support

for speech only if it can demonstrate that its purpose

for doing so is compelling and the means it has chosen

are narrowly tailored to that end.

Ill. THE MUSHROOM ACT AND ORDER

INFRINGE RESPONDENT’S RIGHTS UNDER

THE FIRST AMENDMENT.

At issue here is indisputably a government order

compelling United Foods to support speech with which

it disagrees. The compulsion is unmistakable. The

Mushroom Council, a creature of federal law, imposes

an annual assessment on every grower and importer

of mushrooms for the “fresh” market whose volume

equals 500,000 pounds. 7 U.S.C. § 6102(9), 7 C.F.R.

§§ 1209.11, .51, .52. Failure to comply with this

annual assessment carries civil penalties up to $5,500.

7 C.F.R. § 3.91(b)(xxix).

26

United Foods objects to the Mushroom Act and

Order for two reasons. First, it finds that a “generic,

nationwide approach to promoting mushrooms... .

undermine[s] [its] effort to differentiate its Pictsweet

brand from competitors, as well as its effort to tailor

marketing to local retail conditions.” Br. Opp. 4.

Second, United Foods objects to advertising that

“associate[s] mushrooms with consumption of alcohol

and .. . tout{s] mushrooms as an aphrodisiac.” Id.

Under the First Amendment the government may

compel speech or financial support for speech only if

it can demonstrate that its purpose for doing so is

compelling and the means it has chosen are narrowly

tailored to that end. The Mushroom Act and Order

fail on both accounts.

The government’s interest in promoting the

consumption of mushrooms is not compelling. As

Amici Mushroom Institute, et al. so aptly put it, the

speech at issue in this case “is, after all, about

mushrooms.” Br. Amici Curiae Mushroom Institute,

et al. Promoting mushrooms, however important to

the national economy, see 7 U.S.C. § 6101(b), cannot

be objectively placed on a par with other government

interests previously deemed by this Court to be

compelling. See, e.g., American Party v. White, 415

U.S. 767, 783 n.14 (1974) (maintaining “the integrity

of the electoral process”); Snepp v. United States, 444

U.S. 507, 509, n.3 (1980) (preserving “the secrecy of

information important to our national security”).

Even if the government’s interest were thought

compelling, the Mushroom Act and Order are not

narrowly tailored to serve that interest. In this

instance the compelled subsidy “significantly add|s]

27

to the burdening of free speech that is inherent in the

allowance” of any amount of compulsory funding of

expressive activity. Lehnert, 500 U.S. at 519 (plural-

ity). Alternative means of supporting the generic

marketing of mushrooms are available. Tax monies

might be allocated for that purpose. Or the govern-

ment might leave growers free to associate in voluntary

cooperatives. See Br. Amicus Curiae Sun-Maid

Growers, No. 95-1184 , 1995 U.S. Briefs LEXIS 1184

(arguing that voluntary cooperatives offer the advan-

tages of scale without the costs of government

compulsion). In short, if a marketing order requiring

the largest mushroom growers in the country to fund

generic advertising regardless of their individual views

and interests qualifies as narrowly tailored, then

“narrow tailoring must refer not to the standards of

Versace, but to those of Omar the tentmaker.”

Colorado v. Hill, 530 U.S. 703; 120 S. Ct. 2480, 2507

(2000) (Scalia, J., dissenting).

28

CONCLUSION

For the foregoing reasons, this Court should affirm

the judgment of the Court of Appeals.

Respectfully submitted,

DANIEL J. POPEO

R. SHAWN GUNNARSON

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

March 8, 2001 Counsel for Amicus Curiae