Glickman v. Wileman Brothers & Elliott, Inc.
Annotate this Case
521 U.S. 457 (1997)
OCTOBER TERM, 1996
GLICKMAN, SECRETARY OF AGRICULTURE v.
WILEMAN BROTHERS & ELLIOTT, INC., ETAL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 95-1184. Argued December 2, 1996-Decided June 25,1997
Respondents, California tree fruitgrowers, handlers, and processors, initiated administrative proceedings challenging the validity of various regulations contained in marketing orders promulgated by the Secretary of Agriculture under the Agricultural Marketing Agreement Act of 1937 (AMAA). Congress enacted the AMAA to establish and maintain orderly agricultural-commodity marketing conditions and fair prices; the program, which is expressly exempted from the antitrust laws, displaces competition in favor of collective action in the discrete markets regulated. AMAA marketing orders set uniform prices, product standards, and other conditions for all producers in a particular market; must be approved by two-thirds of the affected producers; are implemented by committees of producers appointed by the Secretary; and impose assessments on producers for the expenses of their administration, including product advertising and promotion. The orders at issue assessed respondents for, inter alia, the cost of generic advertising of California nectarines, plums, and peaches. After the Department of Agriculture upheld the generic advertising regulations, respondents sought review in this action, which was consolidated with enforcement actions brought by the Secretary. The District Court upheld the orders and entered judgment for the Secretary, but the Ninth Circuit held that the Government enforced contributions to pay for generic advertising violated respondents' commercial speech rights under the test set forth in Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557,566.
Held: The requirement that respondents finance generic advertising does not violate the First Amendment. Pp.467-477.
(a) Respondents' claimed disagreement with the content of some of the advertising at issue has no bearing on the validity of the entire generic advertising program. The Ninth Circuit invalidated that program under Central Hudson because the Government failed to prove that such advertising was more effective than individual advertising in increasing consumer demand for California tree fruits. The factual assumption that generic advertising may not be the most effective
458 GLICKMAN v. WILEMAN BROTHERS & ELLIOTT, INC.
method to promote these commodities is neither accepted nor rejected by this Court, which instead stresses the importance of the statutory context in which the question at issue arises. Under the AMAA, detailed marketing orders have displaced many aspects of independent business activity characterizing other portions of the economy in which competition is fully protected by the antitrust laws. Business entities are compelled to fund generic advertising as part of a broader collective enterprise in which the regulatory scheme already constrains their freedom to act independently. It is in this context that the Court considers whether to review the assessments at issue under the standard appropriate to economic regulation or under a heightened First Amendment standard. Pp. 467-469.
(b) The Ninth Circuit erred in relying on Central Hudson to test the constitutionality of market order assessments for promotional advertising. Three characteristics of the generic advertising scheme distinguish it from laws this Court has found to abridge free speech. First, the marketing orders impose no restraint on any respondents' freedom to communicate any message to any audience. Second, they do not compel anyone to engage in any actual or symbolic speech. Cf., e. g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 632. Third, they do not compel anyone to endorse or to finance any political or ideological views. Cf., e. g., Wooley v. Maynard, 430 U. S. 705. Indeed, since respondents market California tree fruits, they may all be presumed to agree with the central message of the speech generated by the generic program. Thus, none of the Court's First Amendment jurisprudence supports the suggestion that the promotional regulations should be scrutinized under a different standard from that applicable to the marketing orders' other anticompetitive features. Respondents' criticisms of the generic advertising and their contention that the assessments reduce the sums respondents use to conduct their own advertising provide no basis for concluding that accurate advertising constitutes an abridgment of anybody's right to speak freely. Nor does the First Amendment forbid all compelled financial contributions to fund advertising. Abood v. Detroit Bd. of Ed., 431 U. S. 209, and the cases that follow it, prohibit compelled contributions for expressive activities that conflict with one's freedom of belief. The advertising here does not promote any particular message with which respondents disagree. The fact that respondents may prefer to foster that message in other ways does not make this case comparable to those involving political or ideological disagreement. Moreover, some of the relevant cases suggest that assessments to fund a lawful collective program may be used to pay for nonideological speech over the objection of some members of the group if the speech is germane to the purpose for which the compelled association was justified.
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