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United Foods, Inc. v. United States

Supreme Court of the United States · 2001 · Constitutional Law

Constitutional LawFirst AmendmentCompelled SpeechCommercial SpeechFirst Amendmentcompelled subsidygeneric advertisingcommercial speech

Facts

Congress enacted the Mushroom Promotion, Research, and Consumer Information Act, which authorized a Mushroom Council and permitted mandatory assessments on handlers of fresh mushrooms. Although the Act authorized expenditures for promotion, research, consumer information, and industry information, it was undisputed that most of the money collected was spent on generic advertising promoting mushroom sales. United Foods, a large Tennessee agricultural enterprise that grows and distributes mushrooms, refused in 1996 to pay the assessments, arguing that the forced subsidy for generic advertising violated the First Amendment. Unlike the regulatory scheme in Glickman, the mushroom program did not include broader marketing orders regulating production and sale, antitrust exemptions, or other constraints on independent marketing decisions.

Issue

May the federal government, consistent with the First Amendment, compel mushroom handlers to pay mandatory assessments used principally to fund generic advertising when the advertising is not ancillary to a broader collective regulatory scheme? Does Glickman permit such compelled payments in the absence of a comprehensive cooperative marketing program?

Rule

Compelled funding of speech must satisfy First Amendment scrutiny when producers are required to subsidize speech with which they disagree. Mandatory assessments for advertising may be sustained when the speech is germane to, and ancillary to, a broader valid program of compelled association or cooperative economic regulation; but the First Amendment is violated where the principal object of the statutory scheme is speech itself and there is no independent broader regulatory association to which the speech is germane.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Congress creates a national blueberry board that requires all blueberry packers shipping more than 400,000 pounds annually to pay a per-pound assessment. Nearly all of the money is used for ads saying blueberries are healthy and versatile, while growers remain free to set prices, choose packaging, negotiate contracts, and market under their own brands in Portland, Oregon and elsewhere.

A large packer in Oregon objects that it should not have to fund generic blueberry ads because it wants to emphasize its own premium brand. Under the majority's approach, is the assessment most likely constitutional?

Explanation. The majority held that compelled subsidies for speech trigger First Amendment scrutiny when producers are forced to fund speech with which they disagree. Such assessments may be upheld only when the speech is germane to a broader valid program of compelled association or economic regulation independent of the speech itself. Here, as in the governing case, producers remain free to compete and make independent marketing decisions, and the assessment chiefly funds generic ads. That makes speech the principal object of the program, so the assessment is unconstitutional. (Derived from United Foods, Inc. v. United States (n.d.).)