Supreme Court weighs dispute over generic mushroom ads

Wednesday, April 18, 2001

WASHINGTON — First Amendment landmarks can be found and made in the most unlikely places. Yesterday, the Supreme Court took up a key free-speech case that began at a mushroom farm in Bells, Tenn.

The farm’s owners, United Foods Inc., objected to being forced to pay fees into a government program that financed generic advertising for mushrooms. The company disliked ads that linked mushrooms to romance and wine, and said the program amounted to government-compelled speech, which violates the First Amendment as much as government censorship of speech. The 6th U.S. Circuit Court of Appeals agreed and struck down the program.

During oral arguments in U.S. v. United Foods yesterday, it seemed possible that the high court would also kill the program as a First Amendment violation. But that outcome was far from certain. Most of the time, the court seemed just as divided as it was in 1997, when it turned away a First Amendment challenge to a similar promotion program for the California fruit and nut industry, in the case of Glickman v. Wileman Brothers & Elliott.

In that 5-4 decision, the court majority noted that the California growers were already heavily regulated, making the fee for the generic advertising just another kind of “marketing order” that did not offend the First Amendment.

The United States, represented by Assistant to the Solicitor General Barbara McDowell, argued that the Wileman Brothers decision should control the outcome in the mushroom case, allowing the promotion program to proceed. “We do not abridge the freedom of speech of any mushroom producer,” she said. “No one is compelled to speak.”

Justice Antonin Scalia challenged her on that point, suggesting that growers could have an ideological objection to the generic ads. For argument purposes, he pretended that he was a mushroom farmer who did not believe mushrooms should be eaten — a member of the hypothetical group “People for the Ethical Treatment of Mushrooms,” as he put it.

McDowell replied that a farmer with that philosophy would not likely be a producer bringing mushrooms to market. But Scalia replied, “I produce them to make them happy.” McDowell then said Scalia would be free to convey his philosophy in spite of the advertising program.

But other justices also seemed uncertain about how a government-compelled advertising program could exist without, in effect, imposing the government’s viewpoint on individuals. Justice Anthony Kennedy posited a government program that exacts a fee from clothing makers for an ad campaign that urges consumers to buy “generic” clothing rather than expensive designer brands. Wouldn’t that be a case of “government shaping public attitudes,” Kennedy asked. McDowell said that would be “more problematic.”

Kennedy is a pivotal vote in the case. In the Wileman Brothers decision, Kennedy was in the majority upholding the fruit advertising program, along with John Paul Stevens, Sandra Day O’Connor, Ruth Bader Ginsburg and Stephen Breyer. If Kennedy or any of the others change their minds in the mushroom case, the government program would fall. Similar programs promoting milk, beef and other products, also could be affected.

United Foods, represented by Harvard law professor Laurence Tribe, argued that the fruit and mushroom cases were different, in part, because the mushroom industry is less regulated, making the advertising program a singular speech restriction that is unrelated to any other regulatory goals of the government.

“It should not be permissible for government to make people propagate a message,” Tribe said.

Despite that statement, Tribe acknowledged under questioning that the government-required warnings on cigarette labels were permissible as “a way to fill in the gaps (of advertising) to protect consumers.”

In the end, the case may turn on a last-minute alternative argument offered by the government in its brief to the court. McDowell argued that the mushroom advertising program could be viewed as government speech, which is not limited by the First Amendment. Even though it is funded by a fee paid by farmers, she said, the program is administered by the Department of Agriculture, and the secretary of agriculture has power to veto slogans or ads that are proposed for the program.

O’Connor, another key vote, seemed especially interested in this issue, and Breyer and Ginsburg wanted to know if there was a mechanism by which people could object to the “government speech.”

Tribe spent considerable time dealing with the government-speech issue. He said the ads were designed by the private Mushroom Council, and the secretary of agriculture “is not an editor and does not have censorial powers.” He added, “The fact that government permits it does not mean it’s government speech.”

Several justices also voiced concern that the government-speech issue was not raised in the lower court proceedings, which usually means it cannot be raised at the Supreme Court level. McDowell conceded the issue should have been raised first at the lower court level, but she said it was still within the Supreme Court’s authority to consider the new issue.

A decision in the case could come anytime before the end of the court’s term in late June or early July.

Tags: , , ,