UNITED STATES V. UNITED FOODS, INC. (00-276) 533 U.S. 405 (2001)
197 F.3d 221, affirmed.
[ Kennedy ]
[ Stevens ]
[ Thomas ]
[ Breyer ]
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Breyer, J., dissenting


No. 00—276



[June 25, 2001]

Justice Breyer, with whom Justice Ginsburg joins, and with whom Justice O’Connor joins as to Parts I and III, dissenting.

The Court, in my view, disregards controlling precedent, fails properly to analyze the strength of the relevant regulatory and commercial speech interests, and introduces into First Amendment law an unreasoned legal principle that may well pose an obstacle to the development of beneficial forms of economic regulation. I consequently dissent.


Only four years ago this Court considered a case very similar to this one, Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997). The issue there, like here, was whether the First Amendment prohibited the Government from collecting a fee for collective product advertising from an objecting grower of those products (nectarines, peaches, and plums). We held that the collection of the fee did not “rais[e] a First Amendment issue for us to resolve,” but rather was “simply a question of economic policy for Congress and the Executive to resolve.” Id., at 468. We gave the following reasons in support of our conclusion:

“First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views.” Id., at 469—470.

This case, although it involves mushrooms rather than fruit, is identical in each of these three critical respects. No one, including the Court, claims otherwise. And I believe these similar characteristics demand a similar conclusion.

The Court sees an important difference in what it says is the fact that Wileman’s fruit producers were subject to regulation (presumably price and supply regulation) that “ ‘displaced competition,’ ” to the “extent that they were ‘expressly exempted from the antitrust laws.’ Ante, at 5 (quoting 521 U.S., at 461). The mushroom producers here, it says, are not “ ‘subjected to a uniform price, … restrictio[n] on supply,’ ante, at 6 (quoting 197 F.3d 221, 222, 223 (CA6 1999)), or any other “common venture” that “depriv[es]” them of the “ability to compete,” ante, at 8. And it characterizes this difference as “fundamental.” Ante, at 5.

But the record indicates that the difference to which the Court points could not have been critical. The Court in Wileman did not refer to the presence of price or output regulations. It referred to the fact that Congress had “authorized” that kind of regulation. 521 U.S., at 462 (emphasis added). See also id., at 461 (citing agricultural marketing statute while noting that marketing orders issued under its authority “may include” price and quantity controls (emphasis added)). Both then-existing federal regulations and Justice Souter’s dissenting opinion make clear that, at least in respect to some of Wileman’s marketing orders, price and output regulations, while “authorized,” were not, in fact, in place. See 7 CFR pts. 916, 917 (1997) (setting forth container, packaging, grade, and size regulations, but not price and output regulations); 521 U.S., at 500, n. 13 (souter, J., dissenting) (noting that “the extent to which the Act eliminates competition varies among different marketing orders”). In this case, just as in Wileman, the Secretary of Agriculture is authorized to promulgate price and supply regulations. See ante, at 9 (“greater regulation of the mushroom market might have been implemented under the Agricultural Marketing Agreement Act of 1937”); 7 U.S.C. § 608c(2), (6)(A), (7). But in neither case has she actually done so. Perhaps that is why the Court in Wileman did not rely heavily upon the existence of the Secretary’s authority to regulate prices or output. See 521 U.S., at 469 (noting statutory scheme in passing).

Regardless, it is difficult to understand why the presence or absence of price and output regulations could make a critical First Amendment difference. The Court says that collective fruit advertising (unlike mushroom advertising) was the “logical concomitant” of the more comprehensive “economic” regulatory “scheme.” Ante, at 6. But it does not explain how that could be so. Producer price-fixing schemes seek to keep prices higher than market conditions might otherwise dictate, as do restrictions on supply. Antitrust exemptions are a “logical concomitant,” for otherwise the price or output agreement might be held unlawful. But collective advertising has no obvious comparable connection. As far as Wileman or the record here suggests, collective advertising might, or might not, help bring about prices higher than market conditions would otherwise dictate. Certainly nothing in Wileman suggests the contrary. Cf. 521 U.S., at 477 (Souter, J., dissenting) (criticizing the Court for not requiring advertising program to be “reasonably necessary to implement the regulation”).

By contrast, the advertising here relates directly, not in an incidental or subsidiary manner, to the regulatory program’s underlying goal of “maintain[ing] and expand[ing] existing markets and uses for mushrooms.” 7 U.S.C. § 6101(b)(2). As the Mushroom Act’s economic goals indicate, collective promotion and research is a perfectly traditional form of government intervention in the marketplace. Promotion may help to overcome inaccurate consumer perceptions about a product. See Hearings on H. R. 1776 et al. before the Subcommittee on Domestic Marketing, Consumer Relations, and Nutrition of the House Committee on Agriculture, 101st Cong., 1st Sess., 99 (1989) (hereinafter Hearings) (statement of Rep. Grant) (noting need to overcome consumer fears about safety of eating mushrooms and that per capita mushroom consumption in Canada was twice that of United States). Overcoming those perceptions will sometimes bring special public benefits. See 7 U.S.C. § 6101(a)(1)—(3) (mushrooms are “valuable part of the human diet,” and their production “benefits the environment”). And compelled payment may be needed to produce those benefits where, otherwise, some producers would take a free ride on the expenditures of others. See Hearings 95—96 (statement of James Ciarrocchi) (“The … industry has embarked on several voluntary promotion campaigns over the years… . [A] lesson from every one … has been unreliability, inefficiency, and inequities of voluntary participation”).

Compared with traditional “command and control,” price, or output regulation, this kind of regulation–which relies upon self-regulation through industry trade associations and upon the dissemination of information–is more consistent, not less consistent, with producer choice. It is difficult to see why a Constitution that seeks to protect individual freedom would consider the absence of “heavy regulation,” ante, at 6, to amount to a special, determinative reason for refusing to permit this less intrusive program. If the Court classifies the former, more comprehensive regulatory scheme as “economic regulation” for First Amendment purposes, it should similarly classify the latter, which does not differ significantly but for the comparatively greater degree of freedom that it allows.

The Court invokes in support of its conclusion other First Amendment precedent, namely, Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), Keller v. State Bar of Cal., 496 U.S. 1 (1990), West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), and Wooley v. Maynard, 430 U.S. 705 (1977). But those cases are very different. The first two, Abood and Keller, involved compelled contributions by employees to trade unions and by lawyers to state bar associations, respectively. This Court held that the compelled contributions were unlawful (1) to the extent that they helped fund subsidiary activities of the organization, i.e., activities other than those that legally justified a compelled contribution; and (2) because the subsidiary activities in question were political activities that might “conflict with one’s ‘freedom of belief.’ Wileman, supra, at 471 (quoting Abood, supra, at 235). See Keller, supra, at 15 (communications involving abortion, prayer in the public schools, and gun control); Abood, supra, at 213 (communications involving politics and religion).

By contrast, the funded activities here, like identical activities in Wileman, do not involve this kind of expression. In Wileman we described the messages at issue as incapable of “engender[ing] any crisis of conscience” and the producers’ objections as “trivial.” 521 U.S., at 471, 472. The messages here are indistinguishable. Compare Brief for Respondent 10—11 (objecting to advertising because it treats branded and unbranded mushrooms alike, associates mushrooms “with the consumption of alcohol and … tout[s] mushrooms as an aphrodisiac”), with Wileman, supra, at 467, n. 10 (dismissing objections to advertising that suggested “ ‘all varieties of California fruit to be of equal quality,’ ” and included “ ‘sexually subliminal messages as evidenced by an ad depicting a young girl in a wet bathing suit’ ”) (quoting District Court opinion). See also Appendix, infra. The compelled contribution here relates directly to the regulatory program’s basic goal.

Neither does this case resemble either Barnette or Wooley. Barnette involved compelling children, contrary to their conscience, to salute the American flag. 319 U.S., at 632. Wooley involved compelling motorists, contrary to their conscience, to display license plates bearing the State’s message “Live Free or Die.” 430 U.S., at 707. In Wileman we found Barnette and Wooley, and all of “our compelled speech case law … clearly inapplicable” to compelled financial support of generic advertising. 521 U.S., at 470. See also Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985) (refusing to apply Wooley and Barnette in a commercial context where “the interests at stake in this case are not of the same order”). We explained:

“The use of assessments to pay 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 … merely required to make contributions for advertising.” Wileman, supra, at 470—471.

These statements are no less applicable to the present case. How can the Court today base its holding on Barnette, Wooley, Abood, and Keller–the very same cases that we expressly distinguished in Wileman?


Nearly every human action that the law affects, and virtually all governmental activity, involves speech. For First Amendment purposes this Court has distinguished among contexts in which speech activity might arise, applying special speech-protective rules and presumptions in some of those areas, but not in others. See, e.g., Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000) (indicating that less restrictive rules apply to governmental speech); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557, 564 (1980) (commercial speech subject to “mid-level” scrutiny); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968) (applying special rules applicable to speech of government employees). Were the Court not to do so–were it to apply the strictest level of scrutiny in every area of speech touched by law–it would, at a minimum, create through its First Amendment analysis a serious obstacle to the operation of well-established, legislatively created, regulatory programs, thereby seriously hindering the operation of that democratic self-government that the Constitution seeks to create and to protect. Cf. Post, The Constitutional Status of Commercial Speech, 48 UCLA L. Rev. 1, 9—10 (2000).

That, I believe, is why it is important to understand that the regulatory program before us is a “species of economic regulation,” Wileman, 521 U.S., at 477, which does not “warrant special First Amendment scrutiny,” id., at 474. Irrespective of Wileman I would so characterize the program for three reasons.

First, the program does not significantly interfere with protected speech interests. It does not compel speech itself; it compels the payment of money. Money and speech are not identical. Cf. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 388—389 (2000); id., at 398 (Stevens, J., concurring) (“Money is property; it is not speech”); id., at 400 (Breyer, J., concurring) (“[A] decision to contribute money to a campaign is a matter of First Amendment concern–not because money is speech (it is not); but because it enables speech”). Indeed, the contested requirement–that individual producers make a payment to help achieve a governmental objective–resembles a targeted tax. See Southworth, 529 U.S., at 241 (Souter, J., joined by Stevens and Breyer, JJ., concurring in judgment) (“[T]he university fee at issue is a tax”). And the “government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties.” Id., at 229 (majority opinion). Cf. Regan v. Taxation With Representation of Wash., 461 U.S. 540, 547 (1983) (“Legislatures have especially broad latitude in creating classifications and distinctions in tax statutes”).

Second, this program furthers, rather than hinders, the basic First Amendment “commercial speech” objective. The speech at issue amounts to ordinary product promotion within the commercial marketplace–an arena typically characterized both by the need for a degree of public supervision and the absence of a special democratic need to protect the channels of public debate, i.e., the communicative process itself. Cf. Post, supra, at 14—15. No one here claims that the mushroom producers are restrained from contributing to a public debate, moving public opinion, writing literature, creating art, invoking the processes of democratic self-government, or doing anything else more central to the First Amendment’s concern with democratic self-government.

When purely commercial speech is at issue, the Court has described the First Amendment’s basic objective as protection of the consumer’s interest in the free flow of truthful commercial information. See, e.g., Edenfield v. Fane, 507 U.S. 761, 766 (1993) (“First Amendment coverage of commercial speech is designed to safeguard” society’s “interes[t] in broad access to complete and accurate commercial information”); Zauderer, 471 U.S., at 651 (“[T]he extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information”); Central Hudson, 447 U.S., at 563 (“The First Amendment’s concern for commercial speech is based on the informational function of advertising”); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978) (“A commercial advertisement is constitutionally protected not so much because it pertains to the seller’s business as because it furthers the societal interest in the ‘free flow of commercial information’ ”) (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 764 (1976)). Unlike many of the commercial speech restrictions this Court has previously addressed, the program before us promotes the dissemination of truthful information to consumers. And to sustain the objecting producer’s constitutional claim will likely make less information, not more information, available. Perhaps that is why this Court has not previously applied “compelled speech” doctrine to strike down laws requiring provision of additional commercial speech.

Third, there is no special risk of other forms of speech-related harm. As I have previously pointed out, and Wileman held, there is no risk of significant harm to an individual’s conscience. Supra, at 5—7. The program does not censor producer views unrelated to its basic regulatory justification. Supra, at 2. And there is little risk of harming any “discrete, little noticed grou[p].” Ante, at 4. The Act excludes small producers, 7 U.S.C. § 6102(6), (11) (exempting those who import or produce less than 500,000 pounds of mushrooms annually)–unlike respondent, a large, influential corporation. The Act contains methods for implementing its requirements democratically. See §§6104(b)(1)(B), (g)(2) (Mushroom Council, which sets assessment rate, is composed entirely of industry representatives); §§6105(a), (b) (referendum required before Secretary of Agriculture’s order can go into effect and five years thereafter, and producers may request additional referenda). And the Act provides for supervision by the Secretary. §6104(d)(3) (requiring Secretary to approve all advertising programs). See also Wileman, 521 U.S., at 477 (refusing to upset “the judgment of the majority of market participants, bureaucrats, and legislators who have concluded that [collective advertising] programs are beneficial”). These safeguards protect against abuse of the program, such as “making one entrepreneur finance advertising for the benefit of his competitors.” Ante, at 2 (Stevens, J., concurring). Indeed, there is no indication here that the generic advertising promotes some brands but not others. And any “debat[e]” about branded versus nonbranded mushrooms, ante, at 5 (majority opinion), is identical to that in Wileman. Supra, at 5—6.

Taken together, these circumstances lead me to classify this common example of government intervention in the marketplace as involving a form of economic regulation, not “commercial speech,” for purposes of applying First Amendment presumptions. And seen as such, I cannot find the program lacks sufficient justification to survive constitutional scrutiny. Wileman, supra, at 476—477.

The Court, in applying stricter First Amendment standards and finding them violated, sets an unfortunate precedent. That precedent suggests, perhaps requires, striking down any similar program that, for example, would require tobacco companies to contribute to an industry fund for advertising the harms of smoking or would use a portion of museum entry charges for a citywide campaign to promote the value of art. Moreover, because of its uncertainty as to how much governmental involvement will produce a form of immunity under the “government speech” doctrine, see ante, at 10—11, the Court infects more traditional regulatory requirements–those related, say, to warranties or to health or safety information–with constitutional doubt.

Alternatively, the Court’s unreasoned distinction between heavily regulated and less heavily regulated speakers could lead to less First Amendment protection in that it would deprive the former of protection. But see Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U.S. 530, 534, n. 1 (1980) (Even “heavily regulated businesses may enjoy constitutional protection”) (citing, as an example, Virginia Bd. of Pharmacy, supra, at 763—765).

At a minimum, the holding here, when contrasted with that in Wileman, creates an incentive to increase the Government’s involvement in any information-based regulatory program, thereby unnecessarily increasing the degree of that program’s restrictiveness. I do not believe the First Amendment seeks to limit the Government’s economic regulatory choices in this way–any more than does the Due Process Clause. Cf. Lochner v. New York, 198 U.S. 45 (1905).


Even if I were to classify the speech at issue here as “commercial speech” and apply the somewhat more stringent standard set forth in the Court’s commercial speech cases, I would reach the same result. That standard permits restrictions where they “directly advance” a “substantial” government interest that could not “be served as well by a more limited restriction.” Central Hudson, 447 U.S., at 564. I have already explained why I believe the Government interest here is substantial, at least when compared with many typical regulatory goals. Supra, at 4. It remains to consider whether the restrictions are needed to advance its objective.

Several features of the program indicate that its speech-related aspects, i.e., its compelled monetary contributions, are necessary and proportionate to the legitimate promotional goals that it seeks. At the legislative hearings that led to enactment of the Act, industry representatives made clear that pre-existing efforts that relied upon voluntary contributions had not worked. Thus, compelled contributions may be necessary to maintain a collective advertising program in that rational producers would otherwise take a free ride on the expenditures of others. See supra, at 4; Abood, 431 U.S., at 222 (relying upon “free rider” justification in union context).

At the same time, those features of the program that led Wileman’s dissenters to find its program disproportionately restrictive are absent here. Wileman’s statutory scheme covered various different agricultural commodities and imposed a patchwork of geographically based limitations while “prohibit[ing] orders of national scope”–all for no apparent reason. 521 U.S., at 499 (Souter, J., dissenting). The law at issue here, however, applies only to mushrooms, and says explicitly that “[a]ny” mushroom order “shall be national in scope.” 7 U.S.C. § 6103(a). Cf. Wileman, supra, at 493 (Souter, J., dissenting) (“[I]f 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 …”).

Nor has the Government relied upon “[m]ere speculation” about the effect of the advertising. Wileman, supra, at 501 (Souter, J., dissenting). Rather, it has provided empirical evidence demonstrating the program’s effect. See Food Marketing & Economics Group, Mushroom Council Program Effectiveness Review, 1999, p. 6 (Feb. 2000), lodging for United States (available in Clerk of Court’s case file) (finding that “for every million dollars spent by the Mushroom Council … the growth rate [of mushroom sales] increases by 2.1%”). In consequence, whatever harm the program may cause First Amendment interests is proportionate. Cf. Bartnicki v. Vopper, 532 U.S. ___ (2001) (Breyer, J., concurring).

The Court’s decision converts “a question of economic policy for Congress and the Executive” into a “First Amendment issue,” contrary to Wileman. 521 U.S., at 468 (internal quotation marks and citation omitted). Nor can its holding find support in basic First Amendment principles.

For these reasons, I dissent.

[Appendix to opinion of Breyer, J., follows this page.]

[Graphic omitted; see printed opinion.]