521 U.S. 457 (1997), 95-1184, Glickman v. Wileman Brothers & Elliott, Inc.

Docket Nº:Case No. 95-1184
Citation:521 U.S. 457, 117 S.Ct. 2130, 138 L.Ed.2d 585, 65 U.S.L.W. 4597
Case Date:June 25, 1997
Court:United States Supreme Court

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521 U.S. 457 (1997)

117 S.Ct. 2130, 138 L.Ed.2d 585, 65 U.S.L.W. 4597




Case No. 95-1184

United States Supreme Court

June 25, 1997

Argued December 2, 1996

Certiorari to the United States Court of Appeals for the Ninth Circuit


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 Serv. Comm'n of N. Y., 447 U.S. 557, 566.


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

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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 anti competitive features. Respondents' criticisms of the generic advertising and their contention that the assessments reduce the sums respondents use to conduct their own advertising provide no basis for concluding that accurate advertising constitutes an abridgment of anybody's right to speak freely. Nor does the First Amendment forbid all compelled financial contributions to fund advertising. Abood v. Detroit Bd. of Ed., 431 U.S. 209, and the cases that follow it, prohibit compelled contributions for expressive activities that conflict with one's freedom of belief. The advertising here does not promote any particular message with which respondents disagree. The fact that respondents may prefer to foster that message in other ways does not make this case comparable to those involving political or ideological disagreement. Moreover, some of the relevant cases suggest that assessments to fund a lawful collective program may be used to pay for nonideological speech over the objection of some members of the group if the speech is germane to the purpose for which the compelled association was justified.

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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.

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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

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is a law "abridging the freedom of speech" within the meaning of the First Amendment.


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,[1] 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...

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