Glickman v. Wileman Brothers & Elliott, Inc.
521 U.S. 457, 138 L. Ed. 2d 585, 1997 U.S. LEXIS 4036 (1997)
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Rule of Law:
Compelled financial contributions to a generic advertising fund, as part of a broader federal economic regulatory scheme, do not constitute an abridgment of the contributors' First Amendment free speech rights and are not subject to heightened scrutiny.
Facts:
- Pursuant to the Agricultural Marketing Agreement Act of 1937 (AMAA), the Secretary of Agriculture promulgated marketing orders to regulate the California nectarine, plum, and peach markets.
- These orders aimed to maintain orderly marketing conditions and fair prices by displacing competition with collective action on matters like fruit quality, grade, and size.
- The marketing orders required producers and handlers, including Wileman Bros. & Elliott, Inc., to pay mandatory assessments to cover the costs of administering the orders.
- A portion of the collected assessments was used to fund a generic advertising program promoting "California Summer Fruits."
- Wileman Bros. & Elliott, Inc., a large fruit producer that packed and marketed its own fruit, disagreed with the strategy and content of the generic advertising program.
- Believing their own branded advertising was more effective, Wileman Bros. & Elliott, Inc. eventually refused to pay the assessments required by the marketing orders.
Procedural Posture:
- Wileman Bros. & Elliott, Inc., filed petitions with the Secretary of Agriculture challenging the marketing orders' maturity standards and generic advertising regulations.
- An Administrative Law Judge (ALJ) ruled in favor of Wileman on non-constitutional grounds.
- The Judicial Officer of the Department of Agriculture reversed the ALJ's decision entirely.
- Wileman and 15 other handlers filed an action in the U.S. District Court for the Eastern District of California, seeking review of the Judicial Officer's decision.
- The District Court granted summary judgment for the Secretary of Agriculture, upholding the marketing orders.
- Wileman (appellant) appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit affirmed the District Court on statutory grounds but reversed on constitutional grounds, holding that the compelled funding for advertising violated the First Amendment.
- The Secretary of Agriculture (petitioner) petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
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Issue:
Does a federal marketing order that requires fruit growers and handlers to contribute to a fund for generic industry advertising violate their First Amendment rights to freedom of speech?
Opinions:
Majority - Justice Stevens
No. Requiring fruit producers to fund generic advertising as part of a broader collective enterprise of economic regulation does not violate the First Amendment. This regulatory scheme is distinguished from laws that abridge free speech because it imposes no restraint on any producer's freedom to communicate their own message, it does not compel any person to engage in actual or symbolic speech, and it does not compel producers to endorse or finance any political or ideological views. The assessments are a form of economic regulation, not speech regulation, and thus are not subject to the heightened scrutiny of the Central Hudson test. The Court reasoned that the producers' objections are to a business strategy, not a crisis of conscience based on political or ideological disagreement, which differentiates this case from compelled speech precedents like Abood v. Detroit Bd. of Ed.
Dissenting - Justice Souter
Yes. Compelled financial support for commercial speech is a First Amendment issue and should be subject to judicial scrutiny. The majority errs by concluding that coerced subsidies are permissible if they are 'germane' to a regulatory scheme and are not ideological. Protected speech may not be the subject of coercion to speak or to subsidize speech without sufficient justification. The advertising program should be analyzed under the Central Hudson test for commercial speech, which the government fails to satisfy. The government has not demonstrated that the program directly advances a substantial government interest or that it is narrowly tailored, especially given its arbitrary and underinclusive nature.
Dissenting - Justice Thomas
Yes. The majority's conclusion that compelled funding of advertising does not involve 'speech' at all is a complete repudiation of established First Amendment precedent. Paying money for advertising is a form of speech, and compelling speech raises a First Amendment issue just as much as restricting it. It is incongruous to suggest forcing producers to contribute to an advertising campaign is not a speech issue while forbidding them from voluntarily contributing would be. The regulation fails even the lenient Central Hudson test, and it would certainly fail the higher standard that should be applied to all speech, commercial or not.
Analysis:
This decision established a significant distinction within compelled speech jurisprudence, creating a category of compelled financial support for commercial speech that is exempt from heightened First Amendment scrutiny. By classifying the mandatory advertising assessments as economic regulation rather than speech regulation, the Court gave substantial deference to Congress's policy judgments in the commercial sphere. This ruling legitimized numerous agricultural 'checkoff' programs and provides a framework for upholding similar mandatory funding schemes for industry promotion, provided they are part of a broader, non-ideological regulatory structure. The case narrows the application of compelled speech protections in the commercial context, distinguishing economic disagreements from the political or ideological objections that trigger heightened scrutiny.
