Momentum Builds for "Government Speech" Argument
Second Court Rules That Commodity Board Produces Government Speech

By Richard T. Rossier

     On Valentine’s Day, 2003, Gladys Kessler, a Washington, D.C. federal judge, delivered a valentine of sorts to those that support federal and state commodity checkoff programs that require the payment of an assessment to fund  the generic promotion of commodities such as milk, cheese, beef, soybeans, and avocados.   Judge Kessler ruled in Avocados Plus, Inc. v. Veneman that the Hass Avocado Promotion Act did not violate the free speech or equal protection rights of those who filed suit challenging the law, finding that the speech of the Hass Avocado Board was “government speech.”

     While Judge Kessler also ruled that plaintiffs’ freedom of association rights had been violated, she concluded that because plaintiffs’ rejected free speech claim was “the heart of their argument,” and because the balance of harms and the public interest weighed against the issuance of an injunction, she refused plaintiffs’ request that she enter a court order to stop the collection of assessments on Hass avocados.  The decision was a denial of plaintiffs’ motion for a preliminary injunction and a final decision on the merits of plaintiffs’ claim for permanent injunctive relief.  Plaintiffs are expected to appeal.

     Plaintiffs’ complaint alleged that the Hass Avocado Promotion Act violated their free speech, freedom of association, and equal protection rights.  In rejecting plaintiffs’ free speech claim, Judge Kessler held that “because of the extensive government control and oversight over the Hass Avocado Board’s speech, activities, composition, and expenditures, and in light of Congress’ purpose in enacting the statute, the Court concludes that the Board’s speech constitutes government speech.”    In reaching this conclusion, she relied on a case decided in November 2002 (Charter v. USDA) in which a federal court in Montana ruled that the Beef Promotion Act did not violate the First Amendment because the speech of the Beef Board was government speech.   Coming on the heels of two federal court rejections of this argument earlier in 2002 – in South Dakota in June  (involving beef) and in Michigan in October (involving pork), the Avocados Plus decision adds momentum to the argument made by the government and others that the speech of these promotion boards is government speech.  Government speech, they contend, is not subject to the First Amendment because the First Amendment only prevents the government from regulating private speech -- it does not stop the government from speaking.

     Judge Kessler also rejected plaintiffs’ equal protection argument holding that the claim was subject to “rational basis” scrutiny, the lowest level of scrutiny that can be applied to a constitutional claim, and that there was a rational basis for how importers were treated by the Act and the regulations issued by the USDA pursuant to the Act.  Judge Kessler also ruled, however,  that the First Amendment “protects not only the right to associate but also the right to refuse to associate” and stated that such infringements could be permitted only where the law or regulation was narrowly tailored to further a compelling  government interest.

     With respect to plaintiffs’ claim that the Act compels them to associate with domestic avocado producers, Judge Kessler ruled that while “the government’s interest in preserving and strengthening the Hass avocado industry is certainly legitimate and understandable, there is simply no evidence that the Act furthers a compelling government interest.” (Emphasis in original.)  As a result, she ruled, the Act violated plaintiffs’ freedom of association.  As noted above, however, because of Judge Kessler’s rejection of plaintiffs’ other constitutional claims and her balancing of the harms and the public interest, she refused to enter injunctive relief in favor of the plaintiffs. 

     Click for links to the Court's Memorandum Opinion and Order in Avocados Plus v. Veneman in .pdf format.