OCTOBER TERM, 1996
Syllabus
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
458 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
Syllabus
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.
459
See,
e. g., Keller v.
State Bar of Cal., 496 U. S. 1, 13-14. This
test is clearly satisfied here because (1) the generic advertising
of California tree fruit is unquestionably germane to the marketing
orders' purposes and, (2) in any event, the assessments are not
used to fund ideological activities. Although the wisdom of the
generic advertising program may be questioned, its debatable
features are insufficient to warrant special First Amendment
scrutiny. Pp.469-474.
(c) The Ninth Circuit's decision to apply the
Central
Hudson test is inconsistent with the very nature and purpose of
the collective action program at issue. The AMAA rests on an
assumption that in the volatile agricultural commodities markets
the public will be best served by compelling cooperation among
producers in making economic decisions that would be made
independently in a free market. The First Amendment does not
provide a basis for reviewing such economic regulation, which
enjoys the same strong presumption of validity that this Court
accords to other policy judgments made by Congress. Appropriate
respect for Congress' power to regulate interstate commerce
provides abundant support for the marketing orders'
constitutionality. Generic advertising is intended to stimulate
consumer demand for an agricultural product in a regulated market.
That purpose is legitimate and consistent with the regulatory goals
of the overall statutory scheme. The mere fact that one or more
producers do not wish to foster generic advertising of their
product is not a sufficient reason for judges to override the
judgment of the majority of market participants, bureaucrats, and
legislators that such programs are beneficial. Pp.474-477.
58 F.3d
1367, reversed.
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, GINSBURG, and BREYER, JJ., joined. SOUTER, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA,
J., joined, and in which THOMAS, J., joined except as to Part II,
post, p. 477. THOMAS, J., filed a dissenting opinion, in
which SCALIA, J., joined as to Part II,
post, p.504.
Alan Jenkins argued the cause for petitioner. With him on the
briefs were Acting Solicitor General Dellinger, Assistant Attorney
General Hunger, Deputy Solicitor General Kneedler, Douglas N.
Letter, Irene M. Solet, and Daniel Bensing.
Thomas E. Campagne argued the cause for respondents.
With him on the brief for Wileman Bros. & Elliott, Inc., et
al. was
Clifford C.
Kemper. Michael W McConnell, Alan
E.
460
460 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
Untereiner, Gary A. Orseck, and
James A. Moody
filed a brief for respondents Gerawan Farming, Inc., et al. *
JUSTICE STEVENS delivered the opinion of the Court.
A number of growers, handlers, and processors of California tree
fruits (respondents) brought this proceeding to challenge the
validity of various regulations contained in marketing orders
promulgated by the Secretary of Agriculture. The orders impose
assessments on respondents that cover the expenses of administering
the orders, including the cost of generic advertising of California
nectarines, plums, and peaches. The question presented to us is
whether the requirement that respondents finance such generic
advertising
*Briefs of
amici curiae urging reversal were filed for
the State of Arizona et al. by
Daniel E. Lungren, Attorney
General of California,
Charles W Getz TV; Assistant Attorney
General, and
Edna Walz, Deputy Attorney General, and by the
Attorneys General for their respective States as follows:
Grant
Woods of Arizona,
Robert A. Butterworth of Florida,
Frank J.
Kelley of Michigan,
Don Stenberg of
Nebraska,
Peter Verniero of New Jersey,
Dennis C.
Vacco of New York,
Theodore R. Kulongoski of Oregon,
Jeffrey L. Amestoy of Vermont, and
James S.
Gilmore II of Virginia; for the American Federation of Labor
and Congress of Industrial Organizations by
Jonathan P. Hiatt,
James B. Coppess, Mark Schneider, and
Laurence Gold; for
the National Association of State Departments of Agriculture et al.
by
John G.
Roberts, Jr., and
Richard T.
Rossier; and for the Washington Apple Commission et al. by
Robert S.
Hedrick, George H. Soares, Dale A. Stern,
Kendall L. Manock, Charles K. Manock, and
Patrick J.
Kole.
Briefs of
amici curiae urging affirmance were filed for
the American Advertising Federation et al. by
Richard E. Wiley,
Daniel E. Troy, Robert L. Sherman, John F.
Kamp, David
S.
Versfelt, and
Slade Metcalf; for the National
Right to Work Legal Defense Foundation, Inc., by
John C.
Scully; for the Sun-Maid Growers of California by
Catherine A. Conway and
Vincent M. Waldman; for
Treehouse Farms, Inc., by
Timothy B. Dyk; and for the
Washington Legal Foundation et al. by
Daniel J.
Popeo
and
Richard A. Samp.
Briefs of
amici curiae were filed for the Pacific Legal
Foundation by
Sharon L. Browne; and for the United Sheep
Producers by
Brian C.
Leighton.
461
is a law "abridging the freedom of speech" within the meaning of
the First Amendment.
I
Congress enacted the Agricultural Marketing Agreement Act of
1937 (AMAA), ch. 296, 50 Stat. 246, as amended, 7 U. S. C. § 601
et seq., in order to establish and maintain orderly
marketing conditions and fair prices for agricultural commodities.
§ 602(1). Marketing orders promulgated pursuant to the AMAA are a
species of economic regulation that has displaced competition in a
number of discrete markets; they are expressly exempted from the
antitrust laws. § 608b. Collective action, rather than the
aggregate consequences of independent competitive choices,
characterizes these regulated markets. In order "to avoid
unreasonable fluctuations in supplies and prices," § 602(4), these
orders may include mechanisms that provide a uniform price to all
producers in a particular market,l that limit the quality and the
quantity of the commodity that may be marketed, §§ 608c(6)(A), (7),
that determine the grade and size of the commodity, § 608c(6)(A),
and that make an orderly disposition of any surplus that might
depress market prices, ibid. Pursuant to the policy of collective,
rather than competitive, marketing, the orders also authorize joint
research and development projects, inspection procedures that
ensure uniform quality, and even certain standardized packaging
requirements. §§ 608c(6)(D), (H), (1). The expenses of
administering such orders, including specific projects undertaken
to serve the economic interests of the cooperating producers, are
"paid from funds collected pursuant to the marketing order." §§
608c(6)(I), 610(b)(2)(ii).
Marketing orders must be approved by either two-thirds of the
affected producers or by producers who market at
1 See, e. g., United States v. Rock Royal Co-operative, Inc.,
307 U. S. 533
(1939); West Lynn Creamery, Inc. v. Healy,
512 U. S. 186, 188-189
(1994).
462
462 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
least two-thirds of the volume of the commodity. § 608c(9)(B).
The AMAA restricts the marketing orders "to the smallest regional
production areas ... practicable." § 608c(1l)(b). The orders are
implemented by committees composed of producers and handlers of the
regulated commodity, appointed by the Secretary, who recommend
rules to the Secretary governing marketing matters such as fruit
size and maturity levels. 7 CFR §§ 916.23, 916.62, 917.25, 917.30
(1997). The committees also determine the annual rate of
assessments to cover the expenses of administration, inspection
services, research, and advertising and promotion. §§ 916.31(c),
917.35(f).
Among the collective activities that Congress authorized for
certain specific commodities is "any form of marketing promotion
including paid advertising." 7 U. S. C. § 608c(6) (1).2 The
authorized promotional activities, like the marketing orders
themselves, are intended to serve the producers' common interest in
disposing of their output on favorable terms. The central message
of the generic advertising at issue in this case is that
"California Summer Fruits" are wholesome, delicious, and attractive
to discerning shoppers. See App. 530. All of the relevant
advertising, insofar as it is authorized by the statute and the
Secretary's regulations, is designed to serve the producers' and
handlers' common interest in promoting the sale of a particular
product.3
2 Congress amended the AMAA in 1954 to authorize the Secretary
to establish "marketing ... development projects." See Agricultural
Act of 1954, § 401(c), 68 Stat. 906.
3 Those regulations include provisions minimizing the risk that
the generic advertising might adversely affect the interests of any
individual producer. See 7 U. S. C. § 608c(16)(A)(i) (providing for
termination or suspension of an order that does not "effectuate the
declared policy" of the AMAA); § 608c(16)(B) (providing for
termination of an order if a majority of producers does not support
a regulation); § 608c(15)(A) (allowing handlers subject to a
marketing order to petition for modification or exemption from an
order that is inconsistent with the statute). For the purpose of
this case, we assume that those regulations accomplish their goals,
and that the generic advertising programs therefore further the
interests of
463
II
The regulations at issue in this litigation are contained in
Marketing Order 916, which regulates nectarines grown in
California, and Marketing Order 917, which originally regulated
peaches, pears, and plums grown in California.4 A 1966 amendment to
the former expressly authorized generic advertising of nectarines,
see 31 Fed. Reg. 8177, and a series of amendments, beginning in
1971, to the latter authorized advertising of each of the regulated
commodities, see 36 Fed. Reg. 14381 (1971); 41 Fed. Reg. 14375,
17528 (1976).5 The advertising provisions relating to pears are not
now being challenged, thus we limit our discussion to generic
advertising of California nectarines, plums, and peaches.
Respondent Wileman Bros. & Elliott, Inc., is a large
producer of these fruits that packs and markets its own output as
well as that grown by other farmers. In 1987, after encountering
problems with some fruit varieties under the maturity and minimum
size standards in the orders, it refused to pay its assessments and
filed a petition with the Secretary challenging those standards. In
1988, it filed a second petition challenging amendments to the
maturity standards as well as the generic advertising regulations.
The Administrative Law Judge (ALJ), in two separate decisions that
are explained in a total of 769 pages, ruled in favor of Wileman on
the Administrative Procedure Act (APA) issues, without resolving
respondents' First Amendment claims. App. to
those who pay for them. We do not, however, rule out the
possibility that, despite the approval of generic advertising by at
least two-thirds of the handlers, individual advertising might be
even more effective.
4 The original marketing order for California peaches and plums
was first issued in 1939. See 4 Fed. Reg. 2135 (1939). The
marketing order for California nectarines was issued in 1958. See 7
CFR § 937.45 (1959).
5 The plum portion of Order 917 was terminated in 1991 after a
majority of plum producers failed to vote for its continuation, see
56 Fed. Reg. 23772, but because some of the respondents are seeking
a refund of 1991 assessments for plum advertising, the validity of
that portion of the program is not moot.
464
464 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
Brief in Opposition 393a.6 In a comparably detailed decision,
the Judicial Officer of the Department of Agriculture entirely
reversed the ALJ. Wileman, along with 15 other handlers, then
sought review of the Judicial Officer's decision by filing this
action in the District Court pursuant to 7 U. S. C. § 608c(15)(B).
A number of enforcement actions brought by the Secretary to collect
withheld assessments were consolidated with the review proceeding.
Acting on cross-motions for summary judgment, the District Court
upheld both marketing orders and entered judgment of $3.1 million
in past due assessments against the handlers.
In the Court of Appeals the handlers challenged the generic
advertising provisions of the orders as violative of both the APA
and the First Amendment. The court rejected the statutory
challenge, concluding that the record contained substantial
evidence justifying both the original decision to engage in generic
advertising 7 and the continuation of the program. It
explained:
6 The ALJ indicated that if respondents "were not to succeed in
their nonconstitutional arguments" she would rule in their favor on
the First Amendment claim. App. to Brief in Opposition 393a.
7 The Court of Appeals quoted the following as a "typical
excerpt": " 'The record shows a wide consensus among the peach and
pear industries that promotional activities have been beneficial in
increasing demand and should be continued.
"'Media generally is expensive but some things can be done
selectively in this field that are inexpensive and yet create an
impact on the buying trade as well as the consuming public. Trade
paper ads, particularly at the beginning of the season, together
with the editorial support which trade papers are willing to accord
an advertiser are helpful in launching a program for seasonal
fruits such as peaches and pears. Spot radio or TV commercials in
the principal markets during peak movement periods have proved to
be successful. It has been found in many fresh promotional programs
that spot announcements, particularly when developed with a "dealer
tag" at the end of each spot, have considerable influence in
triggering retail promotions. 41 Fed. Reg. 14,375, 14,376-77
(1976).'''
Wileman Bros. &
Elliott, Inc. v.
Espy, 58 F.3d
1367, 1375
(CA9 1995).
465
"The Nectarine Administrative Committee and the Peach Commodity
Committee engage in a careful process each year prior to and during
their annual spring meetings in approving the advertising program
for the upcoming season. Prior to the full committee meeting, the
Subcommittee on Advertising and Promotion meets to review in detail
the program developed by its staff. The staff in turn uses monthly
reports on price trends, consumer interests, and general market
conditions in the formation of the proposed advertising
program.
"[I]t is only because the handlers themselves, through the
committees, recommend a budget with a generic advertising component
that the program is renewed by the Secretary every year. In fact,
in most years the recommendations have been unanimous. We cannot
assume that the handlers-the parties with firsthand knowledge of
the state of their industry-would make recommendations that have an
adverse effect on their businesses. Of course, the interests of the
voting committee members may not always coincide with those of
every handler in the industry. However, this court has previously
noted that the Supreme Court 'upheld the constitutionality of the
system despite the fact that it may produce results with which some
growers or handlers will disagree.'
Saulsbury Orchards and
Almond Processing, Inc. v. Yeutter, 917 F.2d
1190, 1197 (9th Cir. 1990) (citing
United States v. Rock
Royal Coop., 307 U. S. 533 ... (1939))."
Wileman Bros.
&
Elliott, Inc. v.
Espy, 58
F.3d 1367, 1375-1376 (CA9 1995) (footnote omitted).
The Court of Appeals concluded, however, that Government
enforced contributions to pay for generic advertising violated the
First Amendment rights of the handlers. Relying on an earlier Ninth
Circuit decision that had cited our
466
466 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
decision in
Abood v.
Detroit Bd. of Ed., 431 U. S. 209 (1977), see
Cal-Almond, Inc. v.
United States Dept. of
Agriculture, 14 F.3d
429 (CA9 1993), the court began by stating that the "First
Amendment right of freedom of speech includes a right not to be
compelled to render financial support for others' speech." 58 F.
3d, at 1377. It then reviewed the generic advertising regulations
under "the test for restrictions on commercial speech set out in
Central Hudson Gas &
Electric Corp. v. Public Service
Commission of New York, 447 U. S. 557, 566 ...
(1980)."
Id., at 1378. Although it was satisfied that the
Government interest in enhancing returns to peach and nectarine
growers was substantial, it was not persuaded that the generic
advertising passed either the second or third "prongs" of
Central Hudson. With respect to the former, even though the
generic advertising "undoubtedly" has increased peach and nectarine
sales, the Government failed to prove that it did so more
effectively than individualized advertising. The court also
concluded that the program was not "narrowly tailored" because it
did not give the handlers any credit for their own advertising and
because California was the only State in which such programs were
in place.8
The Court of Appeals' disposition of the First Amendment claim
is in conflict with a decision of the Court of Appeals for the
Third Circuit that rejected a challenge to generic advertising of
beef authorized by the Beef Promotion and Research Act of 1985, 7
U. S. C. §§ 2901-2911.
United States v.
Frame,
885 F.2d
1119, 1136, 1137 (1989). Characterizing that statute as
"legislation in furtherance of an ideologically neutral compelling
state interest," id., at 1137, and noting that the "Cattlemen's
Board is authorized only to develop
8 Respondents also challenged other features of the collective
program including the fruit maturity and minimum size requirements.
Reviewing these aspects of the order pursuant to the deferential
standard of review provided in the APA, the Court of Appeals found
that they were not arbitrary and capricious. See 58 F. 3d, at 1382,
1384.
467
a campaign to promote the product that the defendant himself has
chosen to market," id., at 1136, despite the plaintiff's objections
to the content of the advertising,9 the court found no violation of
his First Amendment rights.
We granted the Secretary's petition for certiorari to resolve
the conflict, 517 U. S. 1232 (1996), and now reverse.
III
In challenging the constitutionality of the generic advertising
program in the Court of Appeals, respondents relied, in part, on
their claimed disagreement with the content of some of the generic
advertising. 58 F. 3d, at 1377, n. 6. The District Court had found
no merit to this aspect of their claim,lO and the Court of Appeals
did not rely on it for its conclusion that the program was
unconstitutional. Rather, the Court of Appeals invalidated the
entire program on the theory that the program could not survive
Central Hudson because the Government had failed to prove
that generic advertising was more effective than individual
advertising in increasing consumer demand for California
nectarines, plums, and peaches. That holding did not depend at all
on either the content of the advertising, or on the respondents'
claimed disagreement with any particular message. AI-
9The plaintiff had claimed that he disagreed with the point of
view expressed in advertising that the consumption of beef is
"'desirable, healthy, nutritious'''; the court concluded that his
claim was not "a dispute over anything more than mere strategy."
Frame, 885 F. 2d, at 1137.
10 The District Court stated: "Scattered throughout plaintiffs'
briefs are additional objections which are difficult to
characterize or quantify. They assert that the advertising condones
'lying' in that it promotes the 'lie' that red colored fruit is
superior, that it rewards mediocrity by advertising all varieties
of California fruit to be of equal quality, that it promotes
sexually subliminal messages as evidenced by an ad depicting a
young girl in a wet bathing suit, and that it promotes the
'socialistic programs' of the Secretary. It is impossible from
these 'vague claims' to determine that plaintiffs' first amendment
rights have been significantly infringed."
Wileman Bros.
&
Elliott, Inc. v.
Madigan, Civ. No. F-90-473-0WW
(ED Cal. 1993), reprinted in App. to Pet. for Cert. 91a-92a.
468
468 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
though respondents have continued in this Court to argue about
their disagreement with particular messages, those arguments, while
perhaps calling into question the administration of portions of the
program, have no bearing on the validity of the entire
program.ll
For purposes of our analysis, we neither accept nor reject the
factual assumption underlying the Court of Appeals' invalidation of
the program-namely, that generic advertising may not be the most
effective method of promoting the sale of these commodities. The
legal question that we address is whether being compelled to fund
this advertising raises a First Amendment issue for us to resolve,
or rather is simply a question of economic policy for Congress and
the Executive to resolve.
11 Respondents argue that assessments were used to fund
advertisements conveying the message that red nectarines are
superior to other nectarines, Brief for Respondents Wileman
Brothers et al. 33, and advertisements conveying the message that
"all California fruit is the same," ibid.; Brief for Respondents
Gerawan Farming, Inc., et al. 46. They contend that they object to
these messages because some of respondent companies grow varieties
of nectarines that are not red, and because they seek to promote
the fact that the commodities are highly varied. See Brief for
Respondents Wileman Brothers et al. 33; Brief for Respondents
Gerawan Farming, Inc., et al. 46. Respondents' argument concerning
promotion of red varieties appears to confuse complaints concerning
maturity standards imposed on peach and nectarine growers with
complaints concerning advertising. See,
e. g., App. 233;
id., at 692. The argument that the advertising promotes a view that
all California fruit is the same is premised upon no particular
advertisement, but rather upon testimony by respondents' executives
concerning their general opposition to paying for generic
advertising. See,
e. g., id., at 588; id., at 662-663.
Respondents also suggest that assessments were improperly used
to fund materials promoting fruit varieties grown exclusively by
their competitors. Brief for Respondents Wileman Brothers et al.
19-20. The claim, however, arises simply from a single reference to
Red Jim nectarines, listed among 25 varieties, on a 1989 chart
illustrating the availability of mid- to late-season summer tree
fruits. App. 531.
These complaints, if they have any merit, are all essentially
challenges to the administration of the program that are more
properly addressed to the Secretary.
469
In answering that question we stress the importance of the
statutory context in which it arises. California nectarines and
peaches are marketed pursuant to detailed marketing orders that
have displaced many aspects of independent business activity that
characterize other portions of the economy in which competition is
fully protected by the antitrust laws. The business entities that
are compelled to fund the generic advertising at issue in this
litigation do so as a part of a broader collective enterprise in
which their freedom to act independently is already constrained by
the regulatory scheme. It is in this context that we consider
whether we should review the assessments used to fund collective
advertising, together with other collective activities, under the
standard appropriate for the review of economic regulation or under
a heightened standard appropriate for the review of First Amendment
issues.
IV
Three characteristics of the regulatory scheme at issue
distinguish it from laws that we have found to abridge the freedom
of speech protected by the First Amendment. First, the marketing
orders impose no restraint on the freedom of any producer to
communicate any message to any audience. 12 Second, they do not
compel any person to engage in any actual or symbolic speech.13
Third, they do not compel the producers to endorse or to finance
any political
12 This fact distinguishes the limits on commercial speech at
issue in Central Hudson Gas & Elec. Corp. v. Public Servo
Comm'n of N. Y.,
447
U. S. 557 (1980), Virginia Bd. of Pharmacy V. Virginia Citizens
Consumer Council, Inc.,
425 U. S. 748 (1976), and
44 Liquormart, Inc. V. Rhode Island,
517 U. S. 484 (1996).
13 This fact distinguishes the compelled speech in West Virginia
Bd. of Ed. V. Barnette,
319 U. S. 624 (1943),
Wooley V. Maynard,
430 U. S. 705 (1977),
Riley V. National Federation of Blind of N. C., Inc.,
487 U. S. 781 (1988), and
the compelled association in Hurley V. Irish-American Gay, Lesbian
and Bisexual Group of Boston, Inc.,
515 U. S. 557 (1995).
470
470 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
or ideological views.14 Indeed, since all of the respondents are
engaged in the business of marketing California nectarines, plums,
and peaches, it is fair to presume that they agree with the central
message of the speech that is generated by the generic program.
Thus, none of our First Amendment jurisprudence provides any
support for the suggestion that the promotional regulations should
be scrutinized under a different standard from that applicable to
the other anticompetitive features of the marketing orders.
Respondents advance several arguments in support of their claim
that being required to fund the generic advertising program
violates the First Amendment. Respondents argue that the
assessments for generic advertising impinge on their First
Amendment rights because they reduce the amount of money that
producers have available to conduct their own advertising. This is
equally true, however, of assessments to cover employee benefits,
inspection fees, or any other activity that is authorized by a
marketing order. The First Amendment has never been construed to
require heightened scrutiny of any financial burden that has the
incidental effect of constraining the size of a firm's advertising
budget. The fact that an economic regulation may indirectly lead to
a reduction in a handler's individual advertising budget does not
itself amount to a restriction on speech.
The Court of Appeals, perhaps recognizing the expansive nature
of respondents' argument, did not rely on the claim that the
assessments for generic advertising indirectly limit the extent of
the handlers' own advertising. Rather, the Court of Appeals
apparently accepted respondents' argument that the assessments
infringe First Amendment rights because they constitute compelled
speech. Our compelled speech case law, however, is clearly
inapplicable to the regulatory scheme at issue here. The use of
assessments to pay
14 This fact distinguishes cases like
Machinists v.
Street, 367 U.
S. 740 (1961), Abood v.
Detroit Bd. of Ed.,
431 U. S. 209
(1977), and
Keller v.
State Bar of Gal., 496 U. S. 1 (1990).
471
for advertising does not require respondents to repeat an
objectionable message out of their own mouths, cf.
West Virginia
Bd. of Ed. v.
Barnette, 319 U. S. 624, 632
(1943), require them to use their own property to convey an
antagonistic ideological message, cf.
Wooley v.
Maynard, 430
U. S. 705 (1977);
Pacific Gas &
Elec. Co. v.
Public Util. Comm'n of Cal., 475 U. S. 1, 18 (1986)
(plurality opinion), force them to respond to a hostile message
when they "would prefer to remain silent," see
ibid., or
require them to be publicly identified or associated with another's
message, cf.
PruneYard Shopping Center v.
Robins,
447 U. S. 74, 88
(1980). Respondents are not required themselves to speak, but are
merely required to make contributions for advertising. With trivial
exceptions on which the court did not rely, 15 none of the generic
advertising conveys any message with which respondents disagree.
Furthermore, the advertising is attributed not to them, but to the
California Tree Fruit Agreement or "California Summer Fruits." See,
e. g., App. 530.
Although this regulatory scheme may not compel speech as
recognized by our case law, it does compel financial contributions
that are used to fund advertising. As the Court of Appeals read our
decision in
Abood, just as the First Amendment prohibits
compelled speech, it prohibits-at least without sufficient
justification by the government-compelling an individual to "render
financial support for others' speech." 58 F. 3d, at 1377. However,
Abood, and the cases that follow it, did not announce a
broad First Amendment right not to be compelled to provide
financial support for any organization that conducts expressive
activities. Rather,
Abood merely recognized a First
Amendment interest in not being compelled to contribute to an
organization whose expressive activities conflict with one's
"freedom of belief." 431 U. S., at 235. We considered, in
Abood, whether it was constitu-
15 See n. 10, supra.
472
472 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
tional for the State of Michigan to require government employees
who objected to unions or union activities to contribute to an
"agency shop" arrangement requiring all employees to pay union dues
as a condition of employment. We held that compelled contributions
to support activities related to collective bargaining were
"constitutionally justified by the legislative assessment of the
important contribution of the union shop" to labor relations.
Id., at 222. Relying on our compelled-speech cases, however,
the Court found that compelled contributions for political purposes
unrelated to collective bargaining implicated First Amendment
interests because they interfere with the values lying at the
"heart of the First Amendment[ - ]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 mind and his conscience
rather than coerced by the State."
Id., at 234-235; see also
id., at 235.
Here, however, requiring respondents to pay the assessments
cannot be said to engender any crisis of conscience. None of the
advertising in this record promotes any particular message other
than encouraging consumers to buy California tree fruit. N either
the fact that respondents may prefer to foster that message
independently in order to promote and distinguish their own
products, nor the fact that they think more or less money should be
spent fostering it, makes this case comparable to those in which an
objection rested on political or ideological disagreement with the
content of the message. The mere fact that objectors believe their
money is not being well spent "does not mean [that] they have a
First Amendment complaint."
Ellis v.
Railway Clerks,
466 U. S. 435,
456 (1984).
Moreover, rather than suggesting that mandatory funding of
expressive activities always constitutes compelled speech in
violation of the First Amendment, our cases provide affirmative
support for the proposition that assessments to fund a lawful
collective program may sometimes be used to pay for speech over the
objection of some members of the
473
group. Thus, in
Lehnert v.
Ferris Faculty Assn.,
500 U. S. 507
(1991), while we held that the cost of certain publications that
were not germane to collective-bargaining activities could not be
assessed against dissenting union members, id., at 527-528, we
squarely held that it was permissible to charge them for those
portions of "the Teachers' Voice that concern teaching and
education generally, professional development, unemployment, job
opportunities, award programs ... , and other miscellaneous
matters."
Id., at 529. That holding was an application of
the rule announced in
Abood and further refined in
Keller v.
State Bar of Gal., 496 U. S. 1 (1990), a
case involving bar association activities.
As we pointed out in
Keller, "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: collective bargaining. Here the
compelled association and integrated bar are justified by the
State's interest in regulating the legal profession and improving
the quality of legal services. The State Bar may therefore
constitutionally fund activities germane to those goals out of the
mandatory dues of all members. It may not, however, in such manner
fund activities of an ideological nature which fall outside of
those areas of activity."
Id., at 13-14. This test is
clearly satisfied in this case because (1) the generic advertising
of California peaches and nectarines is unquestionably germane to
the purposes of the marketing orders and, (2) in any event, the
assessments are not used to fund ideological activities.16
16 The generic advertising program at issue here is even less
likely to pose a First Amendment burden than the programs upheld in
Lehnert v.
Ferris Faculty Assn., 500 U. S. 507 (1991).
Lehnert involved collective programs in the context of a
union agency-shop agreement which arguably always poses some burden
on First Amendment rights. See id., at 518 (noting that agency-shop
agreements inherently burden First Amendment rights); see also
Abood, 431 U. S., at 222 (recognizing that all compelled
contributions for collective bargaining affect First Amendment
interests because an employee may have ideological, moral, or
religious objections to the union's activities). By contrast, the
collective programs authorized
474
474 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
We are not persuaded that any greater weight should be given to
the fact that some producers do not wish to foster generic
advertising than to the fact that many of them may well object to
the marketing orders themselves because they might earn more money
in an unregulated market. Respondents' criticisms of generic
advertising provide no basis for concluding that factually accurate
advertising constitutes an abridgment of anybody's right to speak
freely. Similar criticisms might be directed at other features of
the regulatory orders that impose restraints on competition that
arguably disadvantage particular producers for the benefit of the
entire market.17 Although one may indeed question the wisdom of
such a program, its debatable features are insufficient to warrant
special First Amendment scrutiny. It was therefore error for the
Court of Appeals to rely on Central Hud
son for the purpose
of testing the constitutionality of market order assessments for
promotional advertising.18
V
The Court of Appeals' decision to apply the Central
Hud
son test is inconsistent with the very nature and purpose
of the collective action program at issue here. The Court of
by the marketing order do not, as a general matter, impinge on
speech or association rights. Cf.
Roberts v.
United
States Jaycees, 468 U. S. 609, 634, 635
(1984) (opinion of O'CONNOR, J.) (finding "only minimal
constitutional protection of the freedom of
commercial
association" and that an association whose "activities are not
predominantly of the type protected by the First Amendment" is
subject to "rationally related state regulation of its
membership").
17 As we have already noted, n. 8,
supra, respondents
failed in their challenge to the other features of the programs
before the District Court and the Court of Appeals.
18 The Court of Appeals fails to explain why the
Central
Hudson test, which involved a restriction on commercial speech,
should govern a case involving the compelled funding of speech.
Given the fact that the Court of Appeals relied on
Abood for
the proposition that the program implicates the First Amendment, it
is difficult to understand why the Court of Appeals did not apply
Abood's "germaneness" test.
475
Appeals concluded that the advertising program does not
"directly advance" the purposes of the marketing orders because the
Secretary had failed to prove that generic advertising is any more
effective in stimulating consumer demand for the commodities than
the advertising that might otherwise be undertaken by producers
acting independently. We find this an odd burden of proof to assign
to the administrator of marketing orders that reflect a policy of
displacing unrestrained competition with Government supervised
cooperative marketing programs. If there were no marketing orders
at all to set maturity levels, size, quantity, and other features,
competition might well generate greater production of nectarines,
peaches, and plums. It may also be true that if there were no
generic advertising, competition would generate even more
advertising and an even larger consumer demand than does the
cooperative program. But the potential benefits of individual
advertising do not bear on the question whether generic advertising
directly advances the statute's collectivist goals. Independent
advertising would be primarily motivated by the individual
competitor's interest in maximizing its own sales, rather than in
increasing the overall consumption of a particular commodity. While
the First Amendment unquestionably protects the individual
producer's right to advertise its own brands, the statute is
designed to further the economic interests of the producers as a
group. The basic policy decision that underlies the entire statute
rests on an assumption that in the volatile markets for
agricultural commodities the public will be best served by
compelling cooperation among producers in making economic decisions
that would be made independently in a free market. It is illogical,
therefore, to criticize any cooperative program authorized by this
statute on the ground that competition would provide greater
benefits than joint action.
On occasion it is appropriate to emphasize the difference
between policy judgments and constitutional adjudication.
476
476 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
Judges who have endorsed the view that the Sherman Act is a
charter of economic liberty 19 naturally approach laws that command
competitors to participate in joint ventures with a jaundiced eye.
Doubts concerning the policy judgments that underlie many features
of this legislation do not, however, justify reliance on the First
Amendment as a basis for reviewing economic regulations.
Appropriate respect for the power of Congress to regulate commerce
among the States provides abundant support for the
constitutionality of these marketing orders on the following
reasoning.
Generic advertising is intended to stimulate consumer demand for
an agricultural product in a regulated market. That purpose is
legitimate and consistent with the regulatory goals of the overall
statutory scheme. See § 602(1). At least a majority of the
producers in each of the markets in which such advertising is
authorized must be persuaded that it is effective, or presumably
the programs would be discontinued.20 Whether the benefits from the
advertising justify its cost is a question that not only might be
answered differently in different markets, but also involves the
exercise of policy judgments that are better made by producers and
administrators than by judges.
As with other features of the marketing orders, individual
producers may not share the views or the interests of others in the
same market. But decisions that are made by the majority, if
acceptable for other regulatory programs, should be equally so for
promotional advertising. Perhaps more money may be at stake when a
generic advertising program
19 See, e. g., Appalachian Coals, Inc. v. United States,
288 U. S. 344,
359360 (1933); Northern Pacific R. Co. v. United States,
356 U. S. 1, 4 (1958);
Vendo Co. v. Lektro- Vend Corp.,
433 U. S. 623, 647 (1977)
(STEVENS, J., dissenting).
20 The Secretary must terminate an order if he determines that
it does not further the policies of the AMAA, see 7 U. S. C. §
608c(16)(A)(i), or that a majority of producers does not support
it, see § 608c(16)(B). The committee voted unanimously for generic
advertising assessments in each of the years at issue here. See 58
F. 3d, at 1376.
477
is adopted than for other features of the cooperative endeavor,
but that fact does not transform this question of business judgment
into a constitutional issue. In sum, what we are reviewing is a
species of economic regulation that should enjoy the same strong
presumption of validity that we accord to other policy judgments
made by Congress. The mere fact that one or more producers "do not
wish to foster" generic advertising of their product is not a
sufficient reason for overriding the judgment of the majority of
market participants, bureaucrats, and legislators who have
concluded that such programs are beneficial.
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE SOUTER, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, and with whom JUSTICE THOMAS joins except as to Part II,
dissenting.
The Court today finds no First Amendment right to be free of
coerced subsidization of commercial speech, for two principal
reasons. First, the Court finds no discernible element of speech in
the implementation of the Government's marketing orders, beyond
what it sees as "germane" to the undoubtedly valid, nonspeech
elements of the orders. Second, the Court in any event takes the
position that a person who is neither barred from saying what he
wishes, nor subject to personal attribution of speech he dislikes,
has no First Amendment objection to mandatory subsidization of
speech unless it is ideological or political or contains a message
with which the objecting person disagrees. I part company with the
Court on each of these closely related points. The legitimacy of
governmental regulation does not validate coerced subsidies for
speech that the government cannot show to be reasonably necessary
to implement the regulation, and the very reasons for recognizing
that commercial speech falls within the scope of First Amendment
protection likewise
478
478 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
justifies the protection of those who object to subsidizing it
against their will. I therefore conclude that forced payment for
commercial speech should be subject to the same level of judicial
scrutiny as any restriction on communications in that category.
Because I believe that the advertising scheme here fails that test,
I respectfully dissent.
I
The nub of the Court's opinion is its reading of the line of
cases following
Abood v.
Detroit Bd. of Ed., 431 U. S. 209 (1977):
"Abood, and the cases that follow it, did not announce a
broad First Amendment right not to be compelled to provide
financial support for any organization that conducts expressive
activities. Rather, Abood merely recognized a First
Amendment interest in not being compelled to contribute to an
organization whose expressive activities conflict with one's
'freedom of belief.'" Ante, at 471 (quoting Abood,
supra, at 235).
While I certainly agree with the Court that a proper
understanding of
Abood is necessary for the disposition of
this case (and will dwell on the scope of its holding at some
length below), it seems to me that
Abood appears more
readily in its proper size if we begin our analysis with two more
basic principles of First Amendment law: that speech as such is
subject to some level of protection unless it falls within a
category, such as obscenity, placing it beyond the Amendment's
scope, and that protected speech may not be made the subject of
coercion to speak or coercion to subsidize speech.
A
Even before we first recognized commercial speech protection in
Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer
Council, Inc., 425 U. S. 748 (1976), we
had stated a basic proposition of First Amendment protection, that
"[a]ll
479
ideas having even the slightest redeeming social importance ...
have the full protection of the guaranties [of the First
Amendment],"
Roth v.
United States, 354 U. S. 476, 484
(1957). This premise was later echoed in
Virginia Bd. of
Pharmacy, where we asked whether commercial speech "is so
removed from any exposition of ideas, and from truth, science,
morality, and arts in general, in its diffusion of liberal
sentiments on the administration of Government, that it lacks all
protection." 425 U. S., at 762 (citations and internal quotation
marks omitted). The answer, of course, was no.
What stood against the claim of social unimportance for
commercial speech was not only the consumer's interest in receiving
information, id., at 763-764, but the commercial speaker's own
economic interest in promoting his wares. "[W]e may assume that the
advertiser's interest is a purely economic one. That hardly
disqualifies him from protection under the First Amendment."
Id., at 762. Indeed, so long as self-interest in providing a
supply is as legitimate as the self-interest underlying an informed
demand, the law could hardly treat the advertiser's economic stake
as "utterly without redeeming social importance" and isolate the
consumer's interest as the exclusive touchstone of commercial
speech protection.
Nor is the advertiser's legitimate interest onedimensional.
While the value of a truthful representation of the product offered
is central, advertising's persuasive function is cognizable, too.
Like most advertising meant to stimulate demand, the promotions for
California fruit at issue here do more than merely provide
objective information about a product's availability or price; they
exploit all the symbolic and emotional techniques of any modern ad
campaign with messages often far removed from simple proposals to
sell fruit.1 "Speech has the capacity to convey
1 Thus, commercial advertising generally and these programs in
particular involve messages that go well beyond the ideal type of
pure commercial speech hypothesized in
Virginia Ed. of
Pharmacy, which would do "'no
480
480 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
complex substance, yielding various insights and interpretations
depending upon the identity of the listener or the reader and the
context of its transmission .... The complex nature of expression
is one reason why even so-called commercial speech has become an
essential part of the public discourse the First Amendment
secures."
Florida Bar v.
Went For It, Inc., 515 U. S. 618, 636 (1995)
(KENNEDY, J., dissenting). Since persuasion is an essential
ingredient of the competition that our public law promotes with
considerable effort, the rhetoric of advertising cannot be written
off as devoid of value or beyond protection, any more than can its
power to inform. Of course, that value may well be of a distinctly
lower order than the importance of providing accurate factual
information, and the inextricable linkage between advertising and
underlying commercial transaction "may give [the government] a
concomitant interest in the expression itself,"
Edenfield v.
Fane, 507 U.
S. 761, 767 (1993) (citation and internal quotation marks
omitted); see also 44
Liquormart, Inc. v.
Rhode
Island, 517 U. S.
484, 499 (1996) (opinion of STEVENS, J.). But these
considerations amount to nothing more than the premise justifying a
merely moderate level of scrutiny for commercial speech regulations
generally: "the 'commonsense' distinction between speech proposing
a commercial transaction, which occurs in an area traditionally
subject to government regulation, and other varieties of speech."
Rubin v.
Coors Brewing Co., 514 U. S. 476, 482 (1995)
(citations and internal quotation marks omitted).
B
Since commercial speech is not subject to any categorical
exclusion from First Amendment protection, and indeed is
more than propose a commercial transaction,'" 425 U. S., at 762
(quoting
Pittsburgh Press Co. v.
Pittsburgh Comm'n on
Human Relations, 413 U. S. 376, 385 (1973)), by communicating
the idea, '''I will sell you the X prescription drug at the Y
price,'" 425 U. S., at 761.
481
protectible as a speaker's chosen medium of commercial
enterprise, it becomes subject to a second First Amendment
principle: that compelling cognizable speech officially is just as
suspect as suppressing it, and is typically subject to the same
level of scrutiny. In
Riley v.
National Federation of
Blind of N. c.,
Inc., 487 U. S. 781 (1988), for
example, the State argued that "the First Amendment interest in
compelled speech is different [from] the interest in compelled
silence," and ought therefore to merit a more "deferential test."
Id., at 796. We rejected that argument out of hand:
"There is certainly some difference between compelled speech and
compelled silence, but in the context of protected speech, the
difference 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."
Id., at 796-797; see also
Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U. S.
557, 573 (1995) ("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" (citations and
internal quotation marks omitted));
Wooley v.
Maynard, 430
U. S. 705, 714 (1977) ("[T]he right of freedom of thought
protected by the First Amendment against state action includes both
the right to speak freely and the right to refrain from speaking at
all");
West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 633 (1943)
("[I]nvoluntary affirmation c[an] be commanded only on even more
immediate and urgent grounds than silence").
As a familiar corollary to the principle that what may not be
suppressed may not be coerced, we have recognized (thus far,
outside the context of commercial speech) that individuals have a
First Amendment interest in freedom from compulsion to subsidize
speech and other expressive activities
482
482 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
undertaken by private and quasi-private organizations.2 We first
considered this issue in
Abood v.
Detroit Bd. of Ed.,
431 U. S. 209
(1977), in addressing the First Amendment claims of dissenting
employees subject to an "agency-shop" agreement between their
government employer and a union. The agreement required each
employee to pay the union a "service fee" equal to the dues
required of union members, but limited no one's right to speak
separately and obliged no employee to join the union, personally
espouse unionism, or participate in the union in any other way.
Id., at 212. Thus, as in this case, the sole imposition upon
nonmembers was the assessment to help pay for the union's
activities. And yet, purely financial as the imposition was, we
held that the union's use of dissenters' service fees for
expressive purposes unrelated to collective bargaining violated the
First Amendment rights of those employees. In so holding,
Abood drew together several lines of First Amendment
doctrine; after recognizing the parallels between expression
per se and associating for expressive purposes, id., at
233-234, the Court relied on compelled-speech cases such as
Barnette, supra, in concluding that just as the government
may not (without a compelling reason) prohibit a person from
contributing money to propagate ideas, neither may it force an
individual to contribute money to support some group's distinctly
expressive activities, id., at 234-235. We have repeatedly adhered
to this reasoning in cases of compelled contributions to unions in
agency shops, see,
e. g., Lehnert v.
Ferris Faculty
Assn., 500 U. S.
507 (1991);
Teachers v.
Hudson, 475 U. S. 292 (1986);
Ellis v.
Railway Clerks, 466 U. S.
2 The Secretary of Agriculture does not argue that the
advertisements at issue represent so-called "government speech,"
with respect to which the Government may have greater latitude in
selecting content than otherwise permissible under the First
Amendment, see
Keller v.
State Bar of Gal., 496 U. S. 1, 10-13 (1990);
Abood v.
Detroit Bd. of Ed., 431 U. S. 209, 259, n. 13
(1977) (Powell, J., concurring in judgment). See Brief for
Petitioner 25, n. 16 (waiving argument).
483
435 (1984) (statutory case);
Machinists v.
Street,
367 U. S. 740
(1961) (statutory case anticipating
Abood), and have
followed the same rationale in holding that state-compelled dues to
an integrated bar association may not constitutionally be used to
advance political and ideological causes distinct from the core
objectives of professional regulation,
Keller v.
State
Bar of Gal., 496 U.
S. 1 (1990).
C
The Court recognizes the centrality of the
Abood line of
authority for resolving today's case, but draws the wrong
conclusions from it. Since
Abood struck down the mandatory
"service fee" only insofar as it funded the union's expression of
support for "ideological causes not germane to its duties as
collective-bargaining representative," 431 U. S., at 235; see also
id., at 232, the Court reads
Abood for the
proposition that the First Amendment places no limits on
government's power to force one individual to pay for another's
speech, except when the speech in question both is ideological or
political in character and is not germane to an otherwise lawful
regulatory program.
Ante, at 471-473.3
1
The Court's first mistaken conclusion lies in treating
Abood as permitting any enforced subsidy for speech that is
germane to permissible economic regulation, in the sense that it
relates to the subject matter of the regulation and
3 That is, the Court appears to hold 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.
See,
e. g.,
ante, at 473 ("[The
Abood] test is
clearly satisfied in this case because (1) the generic advertising
of California peaches and nectarines is unquestionably germane to
the purposes of the marketing orders and, (2)
in any event,
the assessments are not used to fund ideological activities"
(emphasis added)).
484
484 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
tends to further its objectives. But
Abood and its
subsequent line of cases are not nearly so permissive as the Court
makes out. In
Abood, we recognized that even in matters
directly related to collective bargaining, compulsory funding of
union activities has an impact on employees' First Amendment
interests, since the employees might disagree with positions taken
by the union on issues such as the inclusion of abortion in a
medical benefit plan, or negotiating no-strike agreements, or even
the desirability of unionism in general. 431 U. S., at 222. To be
sure, we concluded that any interference with such interests was
"constitutionally justified by the legislative assessment of the
important contribution of the union shop to the system of labor
relations established by Congress."
Ibid.; see also
Keller, supra, at 13-14 ("[T]he State's interest in
regulating the legal profession and improving the quality of legal
services" justifies "the compelled association [inherent in the]
integrated bar"). But this was simply a way of saying that the
government's objective of guaranteeing the opportunity for a union
shop, the importance and legitimacy of which were already settled,
see
Abood, supra, at 217-232 (following
Railway
Employes v.
Hanson, 351 U. S. 225 (1956), and
Machinists v.
Street, supra), could not be attained
without the incidental infringements of the interests in unfettered
speech and association that petitioners there claimed. Collective
bargaining, and related activities such as grievance arbitration
and contract administration, are part and parcel of the very
economic transactions between employees and employer that Congress
can regulate, and which it could not regulate without these
potential impingements on the employees' First Amendment interests.
Abood is thus a specific instance of the general principle
that government retains its full power to regulate commercial
transactions directly, despite elements of speech and association
inherent in such transactions. See
Ohralik v.
Ohio State
Bar Assn., 436 U.
S. 447, 456 (1978) (commercial conduct may be regulated without
offending First Amend-
485
ment despite use of language);
Roberts v.
United
States Jaycees, 468 U. S. 609, 634 (1984)
(opinion of O'CONNOR, J., concurring in part and concurring in
judgment) (in contrast to right of expressive association, "there
is only minimal constitutional protection of the freedom of
commercial association," because "the State is free to
impose any rational regulation on the commercial transaction
itself"); see also
New York State Club Assn., Inc. v.
City of New York, 487 U. S. 1, 13 (1988)
(constitutional right of expressive association is not implicated
by every instance in which individuals choose their associates);
Dallas v.
Stanglin, 490 U. S. 19, 25 (1989)
(same);
Ellis v.
Railway Clerks, 466 U. S., at 456
(funding of union social activities, as opposed to expressive
activities, has minimal connection with First Amendment
rights).
Decisions postdating
Abood have made clear, however, that
its limited sanction for laws affecting First Amendment interests
may not be expanded to cover every imposition that is in some way
"germane" to a regulatory program in the sense of relating
sympathetically to it. Rather, to survive scrutiny under
Abood, a mandatory fee must not only be germane to some
otherwise legitimate regulatory scheme; it must also be justified
by vital policy interests of the government and not add
significantly to the burdening of free speech inherent in achieving
those interests.
Lehnert v.
Ferris Faculty Assn., 500
U. S., at 519; accord,
Ellis, supra, at 456.
Thus, in
Lehnert eight Justices concluded that a
teachers' union could not constitutionally charge objecting
employees for a public relations campaign meant to raise the esteem
for teachers in the public mind and so increase the public's
willingness to pay for public education. See 500 U. S., at 528-529
(plurality opinion); id., at 559 (SCALIA, J., concurring in
judgment in part and dissenting in part). "Expression of this kind
extends beyond the negotiation and grievanceresolution contexts and
imposes a substantially greater burden upon First Amendment rights
than do [collective-
486
486 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
bargaining functions]."
Id., at 528-529 (plurality
opinion). The advertising campaigns here suffer from the same
defect as the public relations effort to stimulate demand for the
teachers' product: a local union can negotiate a particular
contract for the benefit of a shop's whole labor force without
globally espousing the virtues of teachers, and (in the absence of
further explanation) produce markets can be directly regulated in
the interest of stability and growth without espousing the virtues
of fruit. They were, indeed, for a quarter century, and still are
under the many agricultural marketing orders that authorize no
advertising schemes. See
infra, at 494-499. In each
instance, the challenged burden on dissenters' First Amendment
rights is substantially greater than anything inherent in
regulation of the commercial transactions. Thus, the
Abood
line does not permit this program merely because it is germane to
the marketing orders.4
4 The Court purports to find support for its more permissive
reading of the
Abood "germaneness test" in a separate
holding of
Lehnert allowing mandatory charges for portions
of the union's internal newsletter, the Teachers' Voice, that
concerned" 'teaching and education generally, professional
development, unemployment, job opportunities, award programs ... ,
and other miscellaneous matters.'''
Ante, at 473 (quoting
Lehnert v.
Ferris Faculty Assn., 500 U. S. 507, 529
(1991)). But the
Lehnert Court noted that these
communications, though plainly speech, were not "public in nature,"
ibid.; the Teachers' Voice was the union's means of
communicating with its members, not the public at large, see
Lehnert v.
Ferris Faculty Assn.-MEA-NEA, 643 F. Supp.
1306, 1328 (WD Mich. 1986), aff'd,
881 F.2d
1388 (CA6 1989), aff'd in part and rev'd in part on other
grounds,
500 U. S.
507 (1991). In upholding charges for this type of internal
communication,
Lehnert simply followed our earlier decision
in
Ellis v.
Railway Clerks, 466 U. S. 435 (1984), in
which we reasoned that "[t]he union must have a channel for
communicating with the employees, including the objecting ones,
about its activities. [The union surely may] charge objecting
employees for reporting to them about those activities it can
charge them for doing."
Id., at 450-451. In other words,
this type of internal communication about chargeable activities,
unlike the public advertising campaign struck down in
Lehnert, was necessary to the union's role as
collective-bargaining agent and imposed no greater burden on the
em-
487
The Court's second misemployment of
Abood and its
successors is its reliance on them for the proposition that when
government neither forbids speech nor attributes it to an objector,
it may compel subsidization for any objectionable message that is
not political or ideological. But this, of course, is entirely at
odds with the principle that speech significant enough to be
protected at some level is outside the government's power to coerce
or to support by mandatory subsidy without further justification.
Supra, at 480-483. Since a commercial speaker (who does not
mislead) may generally promote commerce as he sees fit, the
government requires some justification (such as its necessity for
otherwise valid regulation) before it may force him to subsidize
commercial speech to which he objects. While it is perfectly true
that cases like
Abood and
Keller did involve
political or ideological speech, and the Court made reference to
that character in explaining the gravity of the First Amendment
interests at stake, nothing in those cases suggests that government
has free rein to compel funding of nonpolitical speech (which might
include art,5 for example, as well as commercial advertising).
While an individual's First Amendment interest in commercial
speech, and thus the government's burden in justifying a regulation
of it, may well be less weighty than the interest in ideological
speech,
Abood continues to stand for the proposition that
being compelled to make expenditures
ployees' First Amendment interests than their compelled
association with the union in the first instance. In these
respects, however, the instant advertising programs are much more
like the impermissible public relations campaign than the
permissible internal communications at issue in
Lehnert.
5 Cf.
Schad v.
Mount Ephraim, 452 U. S. 61, 65 (1981)
("Entertainment, as well as political and ideological speech, is
protected; motion pictures, programs broadcast by radio and
television, and live entertainment, such as musical and dramatic
works, fall within the First Amendment guarantee").
488
488 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
for protected speech "works no less an infringement of ...
constitutional rights" than being prohibited from making such
expenditures. 431 U. S., at 234. The fact that no prior case of
this Court has applied this principle to commercial and
nonideological speech simply reflects the fortuity that this is the
first commercial speech subsidy case to come before us.
3
An apparent third ground for the Court's conclusion that the
First Amendment is not implicated here is its assumption that
respondents do not disagree with the advertisements they object to
subsidizing. See
ante, at 470, 471. But this assumption is
doubtful and would be beside the point even if true. As the Court
itself notes,
ante, at 467-468, and n. 11, respondents do
claim to disagree with the messages of some promotions they are
being forced to fund: some of the ads promote specific varieties of
plums, peaches, and nectarines marketed by respondents' competitors
but not by respondents; other ads characterize California tree
fruits as a generic and thus fungible commodity, whereas
respondents believe that their produce is superior to most grown in
California. While these points of disagreement may seem trivial to
the Court, they in fact relate directly to a vendor's recognized
First Amendment interest in touting his wares as he sees fit, so
long as he does not mislead.
Supra, at 479. Whether the
"central message,"
ante, at 470, of the generic advertising
is that all California peaches, plums, and nectarines are equally
good, or that only the varieties and characteristics featured in
the advertisements are desirable, respondents do indeed disagree
with that message.
In any event, the requirement of disagreement finds no legal
warrant in our compelled-speech cases. In
Riley, for
example, we held that the free-speech rights of charitable
solicitors were infringed by a law compelling statements of fact
with which the objectors could not, and did not profess to,
disagree. See 487 U. S., at 797-798. See also
Hurley,
489
515 U. S., at 573 ("[The] 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 ... ");
Barnette, 319 U. S.,
at 635 (if the Free Speech Clause bars the government from making
the flag salute a legal duty, nonconformist beliefs are not
required to exempt one from saluting). Indeed, the
Abood
cases themselves protect objecting employees from being forced to
subsidize ideological union activities unrelated to collective
bargaining, without any requirement that the objectors declare that
they disagree with the positions espoused by the union. See,
e.
g., Teachers v.
Hudson, 475 U. S., at 301-302;
Abood, 431 U. S., at 234. Requiring a profession of
disagreement is likewise at odds with our holding two Terms ago
that no articulable message is necessary for expression to be
protected,
Hurley, supra, at 569; protection of speech is
not limited to clear-cut propositions subject to assent or
contradiction, but covers a broader sphere of expressive
preference. What counts here, then, is not whether respondents fail
to disagree with the generalized message of the generic ads that
California fruit is good, but that they do indeed deny that the
general message is as valuable and worthy of their support as more
particular claims about the merits of their own brands. One need
not "disagree" with an abstractionist when buying a canvas from a
representational painter; one merely wishes to support a different
act of expression.
D
The Secretary of Agriculture has a further argument for
minimizing or eliminating scrutiny of this subsidization mandate,
which deserves some mention even though the Court does not adopt
it. The Secretary calls for lesser scrutiny of forced payments for
truthful advertising and promotion than for restrictions on
commercial speech, on the ground that the effect of compelled
funding is to increase the sum of information to the consuming
public. This argument rests, how-
490
490 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
ever, on the assumption that regulation of commercial speech is
justified solely or largely on preservation of public access to
truthful information, an assumption we have already seen to be
inaccurate.
Supra, at 478-480. Truth is indeed a justifiable
objective of commercial speech protection, but so is nonmisleading
persuasion directed to the advertiser's own choice of what to
promote.
Although not cited by the Secretary, the closest pass at
authority for his limited rationale of commercial speech protection
is
Zauderer v.
Office of Disciplinary Counsel of Supreme
Court of Ohio, 471 U. S. 626 (1985), our
only examination of a commercial speech mandate before today. The
state law there required disclosures about the method of
calculating a contingent fee when legal representation on that
basis was advertised. In speaking of the objecting lawyer's
comparatively modest interest in challenging the state requirement,
we referred to protection of commercial speech as "justified
principally by the value to consumers of the information such
speech provides .... "
Id., at 651 (citation omitted); see
also
Virginia Bd. of Pharmacy v.
Virginia Citizens
Consumer Council, Inc., 425 U. S., at 765, 770;
Rubin v.
Coors Brewing Co., 514 U. S., at 481. But this proposition
will not bear the weight of the Government's position. We said
"principally," not exclusively, and proceeded to uphold the state
requirement not because a regulation adding to public information
is immune from scrutiny, but because the mandate at issue bore a
reasonable relation to the "State's interest in preventing
deception of consumers," 471 U. S., at 651, who might otherwise be
ignorant of the real terms on which the advertiser intended to do
business.
Zauderer thereby reaffirmed a longstanding
preference for disclosure requirements over outright bans, as more
narrowly tailored cures for the potential of commercial messages to
mislead by saying too little. See id., at 651-652, n. 14; see also
Hurley, supra, at 573;
Riley, supra, at 796, n. 9;
Central Hudson Gas &
Elec. Corp. v.
Public
Servo Comm'n of N.
Y., 447
491
u. S. 557, 565 (1980);
Virginia Bd. of Pharmacy, supra,
at 771-772. But however long the pedigree of such mandates may be,
and however broad the government's authority to impose them,
Zauderer carries no authority for a mandate unrelated to the
interest in avoiding misleading or incomplete commercial
messages.
II
For the reasons discussed above, none of the Court's grounds
suffices for discounting respondents' interests in expression here
and treating these compelled advertising schemes as regulations of
purely economic conduct instead of commercial speech. I would
therefore adhere to the principle laid down in our compelled-speech
cases: laws requiring an individual to engage in or pay for
expressive activities are reviewed under the same standard that
applies to laws prohibiting one from engaging in or paying for such
activities. Under the test for commercial speech, the law may be
held constitutional only if (1) the interest being pursued by the
government is substantial, and (2) the regulation directly advances
that interest and (3) is narrowly tailored to serve it.
Central
Hudson, supra, at 566.6 The burden is on the
6 Contrary to some arguments offered by respondents, these
advertising schemes are not removed from the commercial category on
the grounds that they are content based, producing not mere
"dissemination of 'purely factual and uncontroversial
information,'"
Hurley v.
Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995)
(quoting
Zauderer v.
Office of Disciplinary Counsel of
Supreme Court of Ohio, 471 U. S. 626, 651
(1985)), but controversial and ideological messages, and even
objectionable sexual imagery. Regulation of commercial speech
necessarily turns on some assessment of content,
Virginia Bd. of
Pharmacy v.
Virginia Citizens Consumer Council, Inc.,
425 U. S. 748,
761 (1976), yet that fact has never been thought sufficient to
require a standard of strict scrutiny. And we have consistently
held that advertising does not automatically lose its character as
commercial speech simply because it may do much more than propose a
transaction or disseminate purely factual information. See,
e.
g., Board of Trustees of State Univ. of N. Y. v.
Fox,
492 U. S. 469,
473-475 (1989);
Bolger v.
Youngs Drug Products
492
492 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
government.
Edenfield v.
Fane, 507 U. S., at 770;
Board of Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S.
469, 480 (1989). In this case, the Secretary has failed to
establish that the challenged advertising programs satisfy any of
these three prongs of the
Central Hudson test.
A
The express purposes of the Agricultural Marketing Agreement Act
of 1937 (AMAA or Act), 7 U. S. C. § 601
et seq., including
the advertising programs established under it, are to stabilize
markets for covered agricultural products and maintain the prices
received by farmers. §§ 602(1), (4); see also Federal Agriculture
Improvement and Reform Act of 1996 (FAIR Act) §§ 501(b)(1), (3),
Pub. L. 104-127, 110 Stat. 888, 1030 (finding by Congress that the
purpose of agricultural commodity promotion laws is to maintain and
expand the market for covered commodities).7 It is doubtless true
that at a general level these are substantial government interests,
and unless there were some reason to doubt that undue market
instability or income fluctuation has in fact affected a given
segment of the economy, governmental
Corp., 463
U. S. 60, 66-68 (1983). The concept of commercial speech would
be reduced to a relic if the threshold for imposing strict scrutiny
were reached simply because certain advertisements evoke vaguely
nostalgic themes of indeterminate political import or because the
hypersensitive may see the specter of sex in the film of a child
eating a peach.
7 A subtitle of the FAIR Act, which was enacted on April 4,
1996, authorizes promotion and advertising orders for any
agricultural commodity. Its procedural mechanisms are similar to
those put in place by the AMAA, although there is one noticeable
difference (other than breadth of coverage) between the two laws:
orders issued under the FAIR Act, unlike those under the AMAA, must
be national in scope. FAIR Act §§ 511-526, 110 Stat. 1032-1048. The
FAIR Act does not, however, affect or pre-empt any other federal or
state law, such as the AMAA, authorizing promotion or research
relating to an agricultural commodity. § 524, id., at 1047. The
FAIR Act also includes new findings in support of "commodity
promotion laws," including the advertising provisions of the AMAA.
§ 501, id., at 1029.
493
efforts to address such problems would require little to satisfy
the first
Central Hudson criterion that a substantial
government interest be the object of the regulation. Thus, if the
Government were to attack these problems across an interstate
market for a given agricultural commodity or group of them, the
substantiality of the national interest would not be open to
apparent question, and the sole issues under
Central Hudson
would seem to be whether the means chosen were sufficiently direct
and well tailored. But when the government's program targets
expression in only a narrow band of a broad spectrum of similar
market activities in which its interests appear to be at stake, a
question naturally does arise. For the arbitrariness or
underinclusiveness of the scheme chosen by the government may well
suggest that the asserted interests either are not pressing or are
not the real objects animating the restriction on speech. See
Rubin v.
Coors Brewing Co., 514 U. S., at 489
("[E]xemptions and inconsistencies" in alcohol labeling ban "bring
into question the purpose of the ... ban," such that it does not
survive the
Central Hudson test);
City of Ladue v.
Gilleo, 512 U.
S. 43, 52-53 (1994) ("Exemptions from an otherwise legitimate
regulation of a medium of speech ... may diminish the credibility
of the government's rationale for restricting speech in the first
place");
Cincinnati v.
Discovery Network, Inc.,
507 U. S. 410,
424-426 (1993) (same);
Florida Star v.
B. J.
F., 491 U. S.
524,540 (1989) ("[T]he facial underinclusiveness" of a
regulation of speech "raises serious doubts about whether Florida
is, in fact, serving, with this statute, the significant interests"
invoked in support of it). Under such circumstances, the
government's obligation to establish the empirical reality of the
problems it purports to be addressing, see
Turner Broadcasting
System, Inc. v.
FCC, 512 U. S. 622, 664
(1994);
Edenfield v.
Fane, supra, at 770-771,
requires a sensible reason for drawing the line between those
instances in which the government burdens First Amendment freedom
in the name of the asserted interest and those in which it does
not.
494
494 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
Here, the AMAA's authorization of compelled advertising programs
is so random and so randomly implemented, in light of the Act's
stated purposes, as to unsettle any inference that the Government's
asserted interest is either substantial or even real. First, the
Act authorizes paid advertising programs in marketing orders for 25
listed fruits, nuts, vegetables, and eggs, but not for any other
agricultural commodity. See 7 U. S. C. § 608c(6)(I).8 The list
includes onions but not garlic, tomatoes but not cucumbers, Tokay
grapes but not other grapes, and so on. The selection is puzzling.
The only thing the limited list unambiguously shows is that a need
for promotional control does not go hand-in-hand with a need for
market and economic stability, since the authorization for
marketing orders bears no such narrow restriction to specific types
of produce. But no general criterion for selection is stated in the
text, and neither Congress nor the Secretary has so much as
suggested that such a criterion exists. Instead, the legislative
history shows that from time to time Congress has simply amended
the Act to add particular commodities to the list at the request of
interested producers or handlers, without ever explaining why
com-
8 Section 608c(6)(I) currently provides that marketing orders
may include terms "[eJstablishing or providing for the
establishment of production research, marketing research and
development projects designed to assist, improve, or promote the
marketing, distribution, and consumption or efficient production of
any such commodity or product, the expense of such projects to be
paid from funds collected pursuant to the marketing order:
Provided, That with respect to orders applicable to almonds,
filberts (otherwise known as hazelnuts), California-grown peaches,
cherries, papayas, carrots, citrus fruits, onions, Tokay grapes,
pears, dates, plums, nectarines, celery, sweet corn, limes, olives,
pecans, eggs, avocados, apples, raisins, walnuts, tomatoes, or
Florida-grown strawberries, such projects may provide for any form
of marketing promotion including paid advertising and with respect
to almonds, filberts (otherwise known as hazelnuts), raisins,
walnuts, olives, and Florida Indian River grapefruit may provide
for crediting the pro rata expense assessment obligations of a
handler with all or any portion of his direct expenditures for such
marketing promotion including paid advertising as may be authorized
by the order .... "
495
pelled advertising programs were necessary for the specific
produce chosen and not others.9 The legislative history for the
bill authorizing paid advertising programs for plums, nectarines,
and several other commodities is a good case on point. The record
indicates merely that "[o]ver the past several years, numerous
commodity groups have come to the Congress and asked for authority
to provide for [market development and advertising] activities
under the terms of their agreement and it has always been granted.
This bill combines several such individual requests made by various
producer groups operating under marketing agreements or orders." H.
R. Rep. No. 89-846, 89th Cong., 1st Sess., 2 (1965). A letter from
the Acting Secretary of Agriculture appended to the cited House
Report similarly accounts for the choice of covered products solely
by reference to grower and handler interest.
Id., at 3-4.
Or, again, the legislative history of the amendment adding
"California-grown peaches" to the list refers only to the view of
the Department of Agri-
9 The substantive terms of marketing orders under the AMAA as
originally enacted were generally limited to restrictions on the
total marketable quantity of the commodity, allocations among
handlers, disposition of surplus quantities, and maintenance of
reserve supplies. 7 U. S. C. § 608c(6) (1934 ed., Supp. III). For
the first time in 1954, Congress permitted marketing orders to
establish "marketing research and development projects designed to
assist, improve, or promote the marketing, distribution, and
consumption [of a] commodity or product, the expense of such
projects to be paid from funds collected pursuant to the marketing
order." 68 Stat. 906; 7 U. S. C. § 608c(6)(I). Since then, Congress
has repeatedly amended the Act to authorize, but only for specified
commodities, "any form of marketing promotion including paid
advertising."
Ibid. The first such amendment, in 1962,
allowed advertising programs for cherries, Pub. L. 87-703, 76 Stat.
632; similar schemes for plums and nectarines followed in 1965,
Pub. L. 89-330, 79 Stat. 1270, and for "California-grown peaches"
in 1971, Pub. L. 92-120, 85 Stat. 340; and today, various
authorizations cover the 25 commodities listed in § 608c(6)(I). The
Act now also permits crediting some or all of a handler's
independent expenditures for advertising against his assessment
obligations with respect to six commodities (but not nectarines,
plums, or peaches).
Ibid.
496
496 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
culture that "any fruit or vegetable commodity group which
actively supports the development of a promotion program by this
means should be given an opportunity to do so." S. Rep. No. 92-295,
p. 2 (1971). Nor do the proposed rulemakings for authorizing
advertising programs in marketing orders carry findings that might
explain why such programs might be needed for the specified
commodities but not others; the announcements rely instead on a
"consensus of the industry ... that promotional activities ... have
been beneficial in increasing demand," 36 Fed. Reg. 8736 (1971)
(plums); see also 41 Fed. Reg. 14376-14377 (1976) (peaches).l0
Of course, when government goes no further than regulating the
underlying economic activity, this sort of piecemeal legislation in
answer to expressions of interest by affected parties is plainly
permissible, short of something so arbitrary as to fail the
rational basis test. See,
e. g.,
Williamson v.
Lee
Optical of Okla., Inc., 348 U. S. 483, 487-489
(1955). But when speech is at stake, the government fails to carry
its burden of showing a substantial interest when it does nothing
more than refer to a "consensus" within a limited interest group
that wants the regulation. Instead, the erratic pattern of
regulation itself places the reality of any public or governmental
interest in question, and a correlation with nothing more than the
priorities of particular interest groups gives no reassuring
answerY
10 A possible exception is the proposed rulemaking for
nectarines, which refers to the relative unfamiliarity of the
consuming public with nectarines, due in part to the fact that new
varieties that could be marketed nationally had only recently been
developed. See 31 Fed. Reg. 5635, 5636 (1966). This solitary
finding does not cure the other defects of the statutory scheme,
however.
11 This does not mean that taking the views of the industry into
account in itself renders a program suspect. Both the AMAA and the
more general authorization of compelled agricultural advertising
programs recently enacted as part of the FAIR Act require orders
implementing such programs to be approved by producers and/or
handlers in periodic referenda. See 7 U. S. C. §§ 608c(8)(A), (B),
(9)(B)(i), (16), (19); FAIR Act § 518, 110
497
A second element of the arbitrary in this statutory and
regulatory scheme inheres in the geographical limitations on the
marketing orders that include the advertising programs challenged
in this case, which apply only to peaches, plums, and nectarines
grown in California, unaccompanied by counterparts for advertising
the same commodities grown elsewhere. Some geographical
restriction, it must be said, follows from the general provision of
the AMAA limiting marketing orders to the smallest production or
marketing area practicable and consistent with the policy of the
Act. See 7 U. S. C. § 608c(1l)(B). But this provision merely
explains why a substantial governmental interest in advertising a
type of produce would have to be manifested in as many orders under
the AMAA as there are defined production or marketing areas; it
does nothing to explain the oddity that a Government interest worth
vindicating should occur within such geographically select
boundaries and nowhere else, or to negate the suggestion of the
evidence already mentioned, that the Government's asserted interest
is nothing more than the preference of a local interest group.
The oddity is most pronounced in the instance of peaches, since
the statute itself authorizes forced advertising only in marketing
orders for "California-grown peaches," not in orders for peaches
grown anywhere else in the country. § 608c(6)(I). Although
California is the biggest peachgrowing State, more than 30 others
also grow peaches commercially and together typically account for
about half of the
Stat. 1043-1044. Since the asserted purpose of these advertising
schemes is to increase demand for the covered commodities and
thereby maintain the income of producers and handlers, requiring
periodic approval by those most likely to benefit if a program is
working as planned may serve as an additional check on whether the
purpose of the program is in fact being achieved. Contrary to what
the majority implies, see
ante, at 476-477, however, the
mere vote of a majority is never enough to compel dissenters to pay
for private or quasi-private speech whose message they do not wish
to foster; otherwise, the First Amendment would place no limitation
on this type of majoritarian action.
498
498 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
national crop, and roughly two-thirds of the peaches sold fresh.
See App. 389; U. S. Dept. of Agriculture, Agricultural Statistics,
1995-96, p. V -23 (Table 294). Yet the nonCalifornia peaches are
utterly ignored in the Government's promotional orders. The
challenged advertising campaign for "California Summer Fruits,"
running in markets throughout the United States and in Canada, see
App. 341343, 477-479, does not proclaim simply that peaches or the
other fruits are good things. Rather, as the Secretary tells us,
the advertising program "promotes California fruit as unique."
Brief for Petitioner 31. It mayor may not be, but promoting a crop
from one State at the expense of essentially the same thing grown
in the others reveals nothing about a substantial national interest
justifying the National Government in restricting speech. Without
more, the most reasonable inference is not of a substantial
Government interest, but effective politics on the part of
producers who see the chance to spread their advertising costs.
Nothing more appears.12
The Secretary makes no attempt to explain how the Act's
geographical scope restrictions relate to the asserted goals of the
advertising programs. The general restriction of marketing orders
to the smallest practicable area has been part of the Act since it
became law, long before Congress permitted compelled advertising,
the authorization for which was simply grafted onto the existing
Act as a convenient vehicle for the funding schemes. See n. 9,
supra; see also S. Rep. No. 92-295, supra, at 2 (letter from
Department of Agriculture indicating that the AMAA "could provide
the facility for" financing commodity advertising programs).
12 While plum and nectarine production is more highly
concentrated in California, see U. S. Dept. of Agriculture,
Agricultural Statistics, 1995-96, pp. V-21, V-27 to V-28 (Tables
288, 304-308), the AMAA's requirement that marketing orders cover
the smallest geographical area practicable still lacks any
reasonable connection to the asserted purposes of the advertising
programs instituted thereunder.
499
Nor does any explanation appear for restricting peach
advertising programs to California produce. Without some
explanation, one would expect something quite different, that a
compelled advertising program of the National Government intended
to increase consumer demand for an agricultural commodity would
apply to produce grown throughout the land. Indeed, in recently
enacting the FAIR Act, which authorizes compulsory advertising
programs for all agricultural commodities on a national basis (but
also leaves the separate provisions of the AMAA intact, see § 524,
110 Stat. 1047), Congress specifically found that "[t]he
cooperative development, financing, and implementation of a
coordinated
national program of research, promotion, and
information regarding agricultural commodities are necessary to
maintain and expand existing markets and to develop new markets for
these commodities." § 512(a)(7), id., at 1033 (emphasis added); see
also § 514(a)(2), id., at 1035 ("Each order issued under this
section shall be national in scope"). The AMAA, of course, actually
prohibits orders of national scope. In sum, these advertising
schemes come with a statutory text and regulatory history so remote
from the Government's asserted interests as to undermine the
reality, let alone the substantiality, of the claims put forward by
the Secretary in attempting to satisfy
Central Hudson's
first requirement.
B
Even if the Secretary could establish a sufficiently substantial
interest, he would need also to show how the compelled advertising
programs directly advance that interest, that is, how the schemes
actually contribute to stabilizing agricultural markets and
maintaining farm income by stimulating consumer demand. To show
this required causation, the Secretary relies on cases concerning
governmental bans on particular advertising content, where we have
accepted the unremarkable presumption that advertising actually
works to increase consumer demand, so that limiting adver-
500
500 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
tising tends to soften it. See
United States v.
Edge
Broadcasting Co., 509 U. S. 418, 428
(1993);
Posadas de Puerto Rico Associates v.
Tourism Co.
of P. R., 478 U.
S. 328, 341-342
(1986); Central Hudson, 447 U. S., at
569. This presumption is not, however, automatically convertible
into support for the Secretary here. In the cases mentioned, the
question has been whether some advertising (in the absence of the
government's ban) would be more effective in stimulating demand
than no advertising (due to the ban). Here, in contrast, the causal
question of direct advancement does not involve comparing the
effectiveness of something with nothing, for even without the
coercive promotional schemes there would be some voluntary
advertising. Thus, the question here requires a comparison of the
effectiveness of advertising under the Government's program with
the effectiveness of whatever advertising would likely exist
without it.13
For this purpose, the Secretary correctly notes that the
effectiveness of the Government's regulation must be viewed
overall, considering the market behavior of growers and handlers
generally, not just in its isolated application to one or a few
individuals such as respondents.
Edge Broadcasting, supra,
at 427. The Secretary therefore argues that though respondents have
voiced the desire to do more individual advertising if the system
of mandatory assessments were ended, other handlers who benefit
from the Government's
13 Although they do not apply the
Central Hudson test,
the majority does criticize the Court of Appeals' application of it
as "illogical" insofar as that court enquired whether collective
advertising or purely private advertising is more effective at
stabilizing markets, because the Act's basic policy is to achieve
its economic goals by compelling cooperation in lieu of
independent, competitive decisionmaking.
Ante, at 474-475.
But the extent to which the Act eliminates competition varies among
different marketing orders, and the spottiness of collective
advertising schemes under the Act demonstrates that there is no
necessary connection between some compelled economic cooperation
and forced collective advertising. There is thus nothing
"illogical" in comparing the effectiveness of collective and
private advertising schemes in the context of the marketing order
regime.
501
program might well become "free riders" if promotion were to
become wholly voluntary, to the point of cutting the sum total of
advertising done. That might happen. It is also reasonably
conceivable, though, that pure self-interest would keep the level
of voluntary advertising high enough that the mandatory program
could only be seen as affecting the details of the ads or shifting
their costs, in either event without effect on market stability or
income to producers as a group. 14 We, of course, do not know, but
these possibilities alone should be fatal to the Government here,
which has the burden to establish the factual justification for
ordering a subsidy for commercial speech. Mere speculation about
one or another possibility does not carry the burden, see
Turner
Broadcasting System, 512 U. S., at 664;
Edenfield v.
Fane, 507 U. S., at 770-771, and the Government has to show
that its mandatory scheme appreciably increases the total amount of
advertising for a commodity or somehow does a better job of
sparking the right level of consumer demand than a wholly voluntary
system would. There is no evidence of this in the record here.
c
Finally, a regulation of commercial speech must be narrowly
tailored to achieving the government's interests; there must be a
"'fit' between the legislature's ends and the means chosen to
accomplish those ends,-a fit ... that represents not necessarily
the single best disposition but one whose
14 While even on the cost-shifting scenario the Government would
have reduced the "problem" of free riders referred to by the
Secretary, that would not be a sufficient freestanding
justification for the program. "[P]rivate speech often furthers the
interests of nonspeakers, and that does not alone empower the state
to compel the speech to be paid for,"
Lehnert v.
Ferris
Faculty Assn., 500 U. S., at 556 (SCALIA, J., concurring in
judgment in part and dissenting in part). We have never sustained a
restriction on speech solely because some individuals would ride
free on the private speech of others, but only when the free-rider
problem arises in serving other substantial governmental
interests.
502
502 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
SOUTER, J., dissenting
scope is in proportion to the interest served."
Board of
Trustees of State Univ. of N.
Y. v.
Fox, 492 U.
S., at 480 (citations and internal quotation marks omitted). This
sense of fitness is not precise, to be sure, but it rules out a
regulation if "far less restrictive and more precise means" are
available.
Id., at 479 (internal quotation marks omitted).
Respondents argue that the mandatory advertising schemes for
California peaches, plums, and nectarines fail this narrow
tailoring requirement, because they deny handlers any credit toward
their assessments for some or all of their individual advertising
expenditures. The point is well taken. On its face, at least, a
credit system would be a far less restrictive and more precise way
to achieve the Government's stated interests, eliminating as it
would much of the burden on respondents' speech without diminishing
the total amount of advertising for a particular commodity. Indeed,
the remarkable thing is that the AMAA itself provides for exactly
such credits for individual advertising expenditures under
marketing orders for almonds, filberts, raisins, walnuts, olives,
and Florida Indian River grapefruit, but not for other commodities.
7 U. S. C. § 608c(6)(I).
The Secretary contends, however, that the purpose of individual
"branded" advertising is to increase the market share of a single
handler, and so is at odds with the purpose of the Government's
mandatory program, which is to expand the overall size of the
market through the use of "generic" advertising for a commodity
generally. See also FAIR Act §§ 501(b)(6), (7), 110 Stat. 1030-1031
(congressional finding of same). Perhaps so, but that does not tell
us what to make of the credit for, say, private raisin advertising.
It would be hard to imagine more effectively "branded" advertising
than promotions for Sun-Maid raisins, but the statute would allow
Sun-Maid a credit. Why would that be consistent with the
Government's generic objective, but a credit for respondents'
nectarine ads not be? The Government gives us no answer. Without
some further explanation, the statute on raisin ad-
503
vertising seems to reflect a conclusion that could reasonably be
drawn after examining some of the "branded" advertising in the
record before us. A consumer galvanized by respondents' depiction
of "Mr. Plum," App. 542, might turn down a plum by any other name,
but I doubt it.15
I acknowledge that in implementing a credit program for
individual advertising in an otherwise valid compulsory program,
the Government would need substantial leeway in determining whether
such expenditures do in fact further the goal of expanding markets
generally. But where, as here, no particular evaluation has been
made, and the statute dealing with other fruit apparently assumes
that some private advertising does serve the common good, and
everything else is left to assertion, there could be no finding
that a program completely denying credits for all individual
advertis-
15 The Secretary also maintains that credit programs are
appropriate for market conditions specific to the almond industry,
where a single producer cooperative has a 92% share of the market
for direct sales to consumers, see
Gal-Almond, Inc. v.
United States Dept. of Agriculture, 14
F.3d 429, 438, n. 9 (CA9 1993), because in such circumstances
"certain types of individual and brand advertising may accomplish
the government's goals of market stability and increased
consumption without creating a significant free-rider problem."
Brief for Petitioner 47. As with the Secretary's other proffered
justifications for the seemingly arbitrary choices made in the AMAA
provisions concerning advertising, this explanation rests on
nothing more than an unsubstantiated assertion, here about the
effects of brand advertising. Moreover, the legislative and
regulatory history provides no indication that this was the reason
for permitting credits for almonds, but not plums, nectarines, or
California-grown peaches. To the extent the record says anything,
it seems to say quite the contrary of what the Secretary claims.
See S. Rep. No. 91-1204, p. 2 (1970) (incorporating letter from
Almond Growers Council noting that credit provision for almonds
"will be model legislation for other commodities"); 37 Fed. Reg.
3983 (1972). The Secretary's explanation only leads one to wonder
about filberts, for example; is their production, too, under the
domination of a large cooperative? Is the grapefruit market
structured in a way that renders virtually generic the
brand-specific advertising for the Indian River crop?
504
504 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
THOMAS, J., dissenting
ing expenditures is narrowly tailored to an interest in the
stability or expansion of overall markets for a commodity.
***
Although the government's obligation is not a heavy one in
Central Hudson and the cases that follow it, we have
understood it to call for some showing beyond plausibility, and
there has been none here. I would accordingly affirm the judgment
of the Ninth Circuit.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins as to Part II,
dissenting.
I
I join JUSTICE SOUTER'S dissent, with the exception of Part II.
My join is thus limited because I continue to disagree with the use
of the
Central Hudson balancing test and the discounted
weight given to commercial speech generally. See 44
Liquormart,
Inc. v.
Rhode Island, 517 U. S. 484, 518528
(1996) (THOMAS, J., concurring in part and concurring in judgment)
(criticizing
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N.
Y., 447 U. S. 557 (1980)).
Because the regulation at issue here fails even the more lenient
Central Hudson test, however, it,
a fortiori, would
fail the higher standard that should be applied to all speech,
whether commercial or not.
II
I write separately to note my disagreement with the majority's
conclusion that coerced funding of advertising by others does not
involve "speech" at all and does not even raise a First Amendment
"issue." See
ante, at 469-474. It is one thing to differ
about whether a particular regulation involves an "abridgment" of
the freedom of speech, but it is entirely another matter-and a
complete repudiation of our precedent-for the majority to deny that
"speech" is even at issue in this case.
505
In numerous cases, this Court has recognized that paying money
for the purposes of advertising involves speech.1 The Court also
has recognized that compelling speech raises a First Amendment
issue just as much as restricting speech.2 Given these two
elemental principles of our First Amendment jurisprudence, it is
incongruous to suggest that forcing fruitgrowers to contribute to a
collective advertising campaign does not even
involve
speech, while at the same time effectively conceding that
forbidding a fruitgrower to make those same contributions
voluntarily would violate the First Amendment. Compare
ante,
at 470 (promotional regulations should be scrutinized under the
same standard as other anticompetitive aspects of the marketing
orders), with
ante, at 469, and n. 12 (distinguishing this
case as not involving a "restraint" on any producer's freedom to
communicate with any audience). Yet, that is precisely what the
majority opinion does.3
1 See
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N Y.,
447 U. S. 557 (1980)
(advertising to promote the use of electricity is speech);
First
Nat. Bank of Boston V.
Bellotti, 435 U. S. 765 (1978)
(corporate advertising regarding referendum);
Abood V.
Detroit Bd. of Ed., 431 U. S. 209 (1977)
(per curiam)
(payment of dues used to engage in speech);
Buckley V.
Valeo, 424 U. S.
1 (1976) (contributions for political advertising).
2 See
Turner Broadcasting System, Inc. V.
FCC,
520 U. S. 180
(1997) (coerced carriage of broadcast signals over cable television
facilities); Pa
cific Gas &
Elec. CO. V.
Public
Util. Comm'n of Cal., 475 U. S. 1 (1986) (coerced
inclusion of private messages in utility bill envelopes);
PruneYard Shopping Center V.
Robins, 447 U. S. 74 (1980)
(coerced creation of a speaker's forum on private property);
Abood V.
Detroit Bd. of Ed., supra (coerced payment
of dues used to engage in speech);
Wooley V.
Maynard,
430 U. S. 705
(1977) (coerced display of state license plate);
Miami Herald
Publishing CO. V.
Tornillo, 418 U. S. 241 (1974)
(coerced right of reply to newspaper editorials);
West Virginia
Bd. of Ed. V.
Barnette, 319 U. S. 624 (1943)
(coerced Pledge of Allegiance).
3 The majority's grounds for distinguishing certain of our
precedents are, to say the least, unpersuasive and contradictory,
as JUSTICE SOUTER'S dissent amply demonstrates. Moreover, the
majority's excessive emphasis on the supposed collectivization of
the fruit industry,
ante, at 469, 474477, likewise fails to
support its conclusion. Although the Constitution
506
506 GLICKMAN
v. WILEMAN BROTHERS & ELLIOTT, INC.
THOMAS, J., dissenting
What we are now left with, if we are to take the majority
opinion at face value, is one of two disturbing consequences:
Either (1) paying for advertising is not speech at all, while
such activities as draft card burning, flag burning, armband
wearing, public sleeping, and nude dancing are,4 or (2) compelling
payment for third-party communication does not implicate speech,
and thus the Government would be free to force payment for a whole
variety of expressive conduct that it could not restrict. In either
case, surely we have lost our way.
may not "enact Mr. Herbert Spencer's Social Statics,"
Lochner v.
New York, 198 U. S. 45, 75 (1905)
(Holmes, J., dissenting), and thus the Government has a
considerable range of authority in regulating the Nation's economic
structure, part of the Constitution-the First Amendment-does enact
a distinctly individualistic notion of "the freedom of speech," and
Congress may not simply collectivize that aspect of our society,
regardless of what it may do elsewhere.
4 See
United States v.
O'Brien, 391 U. S. 367 (1968)
(draft card burning);
Texas v.
Johnson, 491 U. S. 397 (1989)
(flag burning);
Tinker v.
Des Moines Independent
Community School Dist., 393 U. S. 503 (1969)
(armbands);
Clark v.
Community for Creative
Non-Violence, 468
U. S. 288 (1984) (prohibition on sleeping in park raises First
Amendment issues);
Schad v.
Mount Ephraim, 452 U. S. 61 (1981) (nude
dancing).
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