In This Issue:

Supreme Court Delivers Biggest Blow to Agriculture Since 1936, United Foods - a Modern Day Butler  by Michael R. McLeod and Scott Heselmeyer

The Aftermath of United States v. United Foods, Inc.: More Questions, More Litigation  by Wayne Watkinson

Avoiding the United Foods' Sword of Damocles, Legal Implications of the Court's 6-4 Mushroom Decision by Richard Rossier

On June 25, 2001, the United States Supreme Court, in the case of United States v. United Foods, held that the assessment requirement of the Mushroom Promotion, Research, and Consumer Information Act was a violation of the First Amendment. ⁽²⁾ The decision was a shock to agriculture because it had been assumed that the issue was settled four years ago when the Court rejected a First Amendment contest to a similar program in Glickman v. Wileman Bros. & Elliott, Inc. ⁽³⁾

Moreover, in declaring an essential component of federal farm policy to be a violation of the Constitution, the Court challenged the ability of Congress to provide relief for American farmers to a degree not seen since the Court struck down the Agricultural Adjustment Act of 1933 in the case ofUnited States v. Butler. ⁽⁴⁾ Just as in the Butler case, it will be necessary for Congress to assert its ability to regulate and promote American agriculture on a national basis. Had Congress failed to do so in the 1930's, there would be no federal farm program today. 

While the mushroom case applies only to a particular program under a particular statute, the Court's ruling is so loose and unreasonable in the distinction it attempts to make that all of the federal commodity research and promotion programs - and scores of state programs - are left in doubt. Thus, an essential component of U.S. agricultural policy and the rural economy is placed in jeopardy. 

Just as it was necessary for the President and Congress to find ways to overcome the misguided decisions of the Supreme Court in the 1930's in order to rescue America from the Great Depression, it will be necessary for Congress to find ways to overcome the misguided opposition of some members of the modern Court in United Foods.

United States v. United Foods

What the Court Decided in United Foods

In United Foods, the Court held that it is a violation of the First Amendment to compel mandatory contributions to a promotion program that is not part of a "broader regulatory scheme." ⁽⁵⁾ In doing so, the Court went to great lengths to distinguish United Foods from its recent decision inWileman.

The government's primary argument in United Foods was that Wileman, which upheld the constitutionality of marketing orders under the Agricultural Marketing Agreement Act of 1937, was controlling precedent and mandated a finding that the mushroom program was constitutional. The Court rejected this argument and distinguished the Wileman decision by saying that the advertising program in question in Wileman was constitutional because it was part of a comprehensive scheme of regulation. ⁽⁶⁾

The decision in United Foods was especially surprising when one considers the Court's reasoning in Wileman. In Wileman, Justice Stevens announced that three characteristics of the scheme in question distinguished it from laws the Court had previously found to abridge the freedom of speech protected by the First Amendment. ⁽⁷⁾ Those characteristics were: (1) that the orders imposed no restraint on the freedom of any producer to communicate any message to any audience; (2) that the orders did not compel any person to engage in any actual or symbolic speech; and (3) that the orders did not compel the producers to endorse or to finance any political or ideological views. ⁽⁸⁾ The mushroom program in question in United Foods displayed these same vital characteristics, yet the Court chose to ignore its previous statements. In United Foods, the Court claims that the test applied in Wileman was only applied because the program in question was part of a broader regulatory scheme. ⁽⁹⁾ In saying this, the Court seems to be taking a position that Congress can only impose assessments for promotion on the producers of a commodity if it also imposes a wide array of additional regulatory and bureaucratic controls. The adoption of such a position by this Court is at the very least surprising. 

At the same time, the Court refused to address the Government's alternative argument - that the advertising in question in the case was government speech. The Court refused to address this question because it was not raised in the Court of Appeals. The Court's decision not to address this subject leaves a large gray area in First Amendment jurisprudence.

Potential Impact of the United Foods Decision

The United Foods decision has a potential impact that reaches much further than the mushroom industry. In fact, the decision seriously threatens the ability of agricultural producers, especially smaller scale producers of less significant commodities, to maintain and develop markets for their products. At risk are programs that, together, gather around $630 million for the promotion of various agricultural commodities each year. For several commodities, these programs have turned around industries that were at one point suffering the dire consequences of declining demand.

This article looks into several aspects of the current situation facing commodity research and promotion programs. First, for background information, there is a discussion of a previous situation in the late 1930's where the federal government's necessary role in agricultural policy was successfully defended before a skeptical Supreme Court. This is followed by a brief history of the development of commodity research and promotion programs on the State and federal level and an analysis of the role of these programs as part of broader agricultural policy. Finally, there is a discussion of the similarities between the scenario of the late 1930's and United Foods and the implications for agriculture in the wake of this decision. 

The AAA - Early Disagreement with the Court on Farm Policy

The Beginnings of Federal Agricultural Policy - The Agricultural Adjustment Act

The federal government first took control of agricultural policy with the Agricultural Adjustment Act of 1933 (AAA). ⁽¹⁰⁾ The scenario that preceded the AAA was different from to the situation facing agriculture today; however, there were some similarities. The 1920's, like the 1990's, were a rather prosperous time in United States history. As in the 1990's, agriculture did not share in the prosperity of the 20's. The situation was greatly exacerbated when the stock market crash of 1929 drove commodity prices even lower and pushed agriculture to the brink of catastrophy. As a result, one of President Roosevelt's first priorities was agricultural policy, which passed Congress in the form of the AAA in less than 100 days after Roosevelt took office. 

A portion of the AAA allowed the Secretary of Agriculture to impose taxes on processors of agricultural commodities to offset the costs of rental or benefit payments to producers. The Supreme Court heard a challenge to this provision in the 1936 case of United States v. Butler. ⁽¹¹⁾ In Butler, the Court determined that the act was one regulating agricultural production and the tax was a "mere incident of such regulation." ⁽¹²⁾ The Court further determined that the regulation of agricultural production was beyond the powers delegated to the federal government, and that the tax was "but a means to an unconstitutional end." ⁽¹³⁾

Supreme Court Declares Agriculture Not a National Issue

The Butler Court stated that agriculture was not a national issue, calling it a "purely local activity." ⁽¹⁴⁾ There was a great outcry not only in the agricultural community, but also in the legal community. Dean Lloyd K. Garrison of the Wisconsin Law School pointed out that not only was it obvious that 48 separate state legislatures could not deal with agricultural policy but the Court had declared that the federal government could not do so either. ⁽¹⁵⁾Butler came among a string of cases in which the Court decided that the federal government had no place in other issues such as labor and the minimum wage. 

A few days before Butler was decided, President Roosevelt had outlined three possibilities, including packing the Court, for reversing the pattern of the Court's denial of nearly every New Deal policy. Following the Butler decision, several plans were quickly proposed to give Congress more control over national economic policy. These included options for Congress to re-enact a law that had been declared unconstitutional, suggestions that a unanimous verdict of the Court should be required to declare an act of Congress unconstitutional, and many other similar suggestions. ⁽¹⁶⁾ In direct response to Butler, however, Congress decided to take the less drastic constitutional route and make changes that would remedy the provisions directly found unconstitutional by the Court. 

Despite the Butler decision, neither farmers nor legislators were ready to abandon the effort to restore prosperity to agriculture. New legislation was worked out and presented within a few weeks of the ruling. The Soil Conservation and Domestic Allotment Act of 1936 was passed in February, 1936, less than two months after the Butler decision. ⁽¹⁷⁾ This new legislation included a change away from the focus of temporary emergency policy based on price supports that was the objective of the 1933 AAA. Instead, the new law hastened the transition to an income objective that was based on long-term objectives and placed emphasis on soil conservation and farm management practices. Agricultural leaders had planned this transition for future years, and the Butler decision had the effect of greatly speeding up these changes. 

Still, these measures did not entirely have the long-term effect agricultural leaders looked for. Work began immediately on more comprehensive legislation, and the AAA was passed in new form in 1938. The AAA of 1938 was far more comprehensive than the stopgap measures implemented immediately after Butler. Although the specific provisions ruled unconstitutional in Butler were not present in the new law, many elements of the 1933 act remained intact, and the 1938 AAA left no doubt that Congress considered agriculture a national issue. ⁽¹⁸⁾

The Court Changes Course

It was not long before federal involvement in agricultural policy came under attack again. However, the Court was much more sympathetic the second time around. The Court's first major step away from Butler came in 1939 with its decision in Mulford v. Smith. ⁽¹⁹⁾ In Mulford, the constitutionality of the marketing quotas for tobacco included in the 1938 AAA was challenged. Specifically, the appellant argued that the act was "a statutory plan to control agricultural production and, therefore, beyond the powers delegated to Congress." ⁽²⁰⁾ This charge seemed to be a specific allegation that the 1938 act was in violation of Butler. Writing for the majority, Justice Roberts, the author of the Butler opinion, clearly refuted this argument and wrote that the act intended "to be solely a regulation of interstate commerce." ⁽²¹⁾ Justice Roberts' opinion never mentions Butler, but it took a clear step away from the premise that Congress lacked the power to regulate agriculture. In his dissent, Justice Butler wrote that this decision was a clear contradiction to the Butler decision. Justice Butler was joined in his dissent by Justice McReynolds. ⁽²²⁾ These were the only two of the six-justice majority in Butler who remained supporters of that position. Of the other four justices, two were no longer on the Court and two had changed course - as evidenced by their support of the Mulford decision.

In 1942, the Supreme Court completely abandoned Butler when it heard the case of Wickard v. Filburn. ⁽²³⁾ Filburn operated a small farm in Ohio and refused to pay a fine levied by USDA after he planted and harvested wheat in excess of the acreage assigned to him under the AAA. ⁽²⁴⁾ Filburn claimed that the excess wheat was for personal use and was not produced for market. As such, he claimed that Congress did not have power under the commerce clause to regulate the personal consumption of wheat - as personal use does not affect commerce. ⁽²⁵⁾ A unanimous Court decided that even wheat that is produced for personal use can affect commerce and is subject to regulation by the federal government. ⁽²⁶⁾ By this time, the two dissenters from Mulford--presumably the two remaining defenders of the Butler decision--had left the Court.

The Wickard decision constituted a 180-degree turn from the approach of the Butler Court. Not only did the Court uphold the federal government's authority to regulate agricultural production but it also upheld the federal government's authority to regulate agricultural production that would never even enter the stream of commerce. 

History of Commodity Research and Promotion Programs

The first federally legislated generic commodity promotion programs were authorized by Congress in the Agricultural Marketing Agreement Act (AMAA) of 1937. ⁽²⁷⁾ The act provided for orders that focused mainly on elements such as supply control and product quality, but it also provided "for the establishment of production research, marketing research and development projects." ⁽²⁸⁾ Such a project was the subject of the Wileman case. Although this act provided the authority to establish commodity promotion programs, stand-alone legislation has been the preferred method of establishing them. ⁽²⁹⁾

The first such stand-alone legislation, requiring mandatory assessments without refund provisions for a promotion program, was enacted in Florida in 1935. The legislation was challenged, but the Florida Supreme Court upheld the program as a valid tax that was not a burden on interstate commerce and was imposed for a public purpose. ⁽³⁰⁾ By 1986, 316 state promotion programs were being funded by producer checkoffs authorized by state legislation. ⁽³¹⁾

There was a problem with commodity promotion programs on the state level. That problem was that most major commodities are produced in several states. To address this, some commodity groups established national organizations, with each state within the organization contributing to a national promotion program. This gave rise to more difficulties, however. There were instances in which some states did not contribute to the program, and states also had varying assessment levels. The situation that developed is often referred to as the "free-rider syndrome." ⁽³²⁾ Although there was cooperation among state organizations, many felt that federal legislation was necessary to ensure equity across the states.

The first stand-alone federal statute authorizing general commodity promotion was the National Wool Act of 1954. The Wool Act did not directly assess producers. Rather, money was taken out of price support funds that would have been paid to wool producers and was set aside for wool promotion. ⁽³³⁾

The first industry to pay a direct assessment on a national level was cotton. The Cotton Research and Promotion Act became law in 1966. Stand-alone legislation followed for the promotion of wheat in 1970, potatoes in 1971, eggs in 1974, and flowers in 1981. ⁽³⁴⁾

The Dairy Research and Promotion Act of 1983 was the first research and promotion program authorized without refund provisions. ⁽³⁵⁾ The 1985 Farm Bill added research and promotion statutes for honey, beef, pork, and watermelons. ⁽³⁶⁾ Pecans, mushrooms, limes, soybeans, and fluid milk promotion and research statutes were added in the 1990 Farm Bill. ⁽³⁷⁾ Following the lead of the dairy industry, the cotton, potato and egg programs had all terminated refund authority by the end of 1990. As discussed below, this decision was vital to the ultimate success of the cotton and egg programs. There are no current federal commodity research and promotion programs that offer refunds on demand.

Congress further detailed its support for commodity promotion with the Commodity Promotion, Research, and Information Act of 1996. ⁽³⁸⁾ Among its findings, Congress stated that the commodity promotion programs are "in the national public interest" as they are "vital to the welfare of the agricultural economy", and that the programs "are of particular benefit to small producers". ⁽³⁹⁾ The 1996 act also included authorizing statutes for the promotion of canola and rapeseed, kiwifruit, and popcorn. ⁽⁴⁰⁾ The act also included general language allowing for the creation of programs for other commodities. Research and promotion programs for peanuts and blueberries have been established under this authority. ⁽⁴¹⁾ A final addition was made with the passage of the Hass Avocado Promotion, Research, and Information Act of 2000. ⁽⁴²⁾

Oversight of these programs is provided by the Agricultural Marketing Service (AMS) of the United States Department of Agriculture (USDA). AMS currently oversees research and promotion programs for cotton, potatoes, eggs, dairy, honey, beef, pork, lamb, mohair, watermelons, soybeans, mushrooms, fluid milk, peanuts, blueberries, and popcorn.

Two well-documented success stories can illustrate the importance of commodity research and promotion programs as a part of agricultural policy. The stories are those of the cotton and egg industries.

The Cotton Program

Cotton growers requested legislation and approved the program in a referendum in response to concerns that cotton was losing market share to synthetic fibers. During the late 1960's, cotton's market share was falling dramatically. It reached its low during the early years of the promotion program, when cotton held only 34% of the retail apparel and home fabrics market and per capita consumption had fallen to around 14 pounds in 1975. ⁽⁴³⁾ At its origination, the cotton program collected an assessment of $1 on every bale of cotton harvested and ginned in the United States, and refunds were available on demand. ⁽⁴⁴⁾ In 1977, a supplemental assessment of four tenths of one percent was added to all cotton marketed in the United States. In 1991, growers approved changes to the program that repealed the refund provisions, set the supplemental assessment at five tenths of one percent, and mandated the collection of assessments on imported raw cotton and the cotton content of imported textile and apparel products. ⁽⁴⁵⁾ By the year 2000, cotton's retail market share had reached 61% and per capita consumption was estimated at 37 pounds. ⁽⁴⁶⁾

The Egg Program

The research and promotion program of the egg industry is another excellent example of how such a cooperative program can turn an industry around. The high point for per capita egg consumption was 402 eggs in 1945. Because of lifestyle changes and health concerns in the ensuing years, per capita consumption reached its lowest level in 1991 at 233 eggs per capita. In an effort to halt this decline and return hope to the industry, the American Egg Board (AEB), the board that administers the checkoff program under USDA supervision, funded extensive health and nutrition research that demonstrated the health benefits of eggs in the diet. In addition, the elimination of the refund provision in the law as an amendment enacted in 1988 enabled the AEB to raise sufficient funds to effectively advertise eggs on a national basis. A combination of sound scientific research and effective advertising produced a gradual increase in per capita consumption to 258 eggs in the year 2000.

These results have transformed the egg industry from a declining industry to a growth industry. Egg producers are now positive about the future of their industry and on their research and promotion program. In a survey conducted in 2000, 86% of producers rated the American Egg Board good or excellent. 

Egg producers are not the beneficiaries of a federal farm price support. They sell their products on a free market, subject only to a comprehensive scheme of health and safety regulations. They ask of their government only the authority to join together under a federal statute to promote their product through scientific research and advertising to consumers. Yet, this benefit has been substantial enough to change the future of the egg industry. The industry is more concentrated than most of agriculture, but not so concentrated that a few large producers could have this kind of impact by branded advertising and corporate research. Only through the federal program is it possible to engage in the kind of self-help that is vital to their industry's future.

The Right of Individual Egg Producers to Advertise Remains

The egg industry is a good reflection of the fact that individual producers are able to advertise their own particular production while contributing to the generic promotion of the industry at a whole. Advertisements for brown eggs, free-range eggs, pasteurized in-shell eggs, and the like abound in the marketplace. The generic promotion program that touts the advantages of eggs as a whole has in no way inhibited producers or groups of producers from successfully advertising their own, individual brands. 

Research and Promotion Programs Help Smaller Farmers

The success of the research and promotion programs is of particular benefit to small family farmers. As agribusinesses become larger and more concentrated, their ability to devote resources to promoting their own products greatly increases. Small farmers are simply unable to devote such resources as individuals. These programs allow producers small and large to come together as one entity to promote their commodity. At the same time, nothing about these programs prevents individual producers from advertising the superiority of the products produced on their particular farm.

Research and Promotion Programs Help Farmers Who are not Subsidized

Research and promotion programs are also of particular benefit to those commodities that do not benefit from federal farm programs. Many of the commodities participating in research and promotion programs do not receive the government support that is provided to the major crop commodities. Without government payments in times of low income, it is especially important that these commodities have an effective mechanism of maintaining and developing markets for their products. Ironically, as discussed below, these commodities are the ones most seriously threatened by the United Foods decision.

Reflections of Butler in United Foods

The Butler Case - Agriculture is a Purely Local Activity

In modern times, the assertions of the Butler Court can seem quite out of line with what we consider common sense. This is due, in large part, to the decisions in Mulford and Wickard, under which the Court established Congress' authority to regulate agriculture on the basis of the commerce clause. It was quite obvious to those involved in the industry that agriculture was anything but a local issue. In fact, agriculture had been a national and international activity since the first Virginia colonists exported tobacco, our first cash crop, to England in the 17^th Century. The Butler Court, however, stated that "the act under review does not purport to regulate transactions in interstate or foreign commerce. Its stated purpose is the control of agricultural production, a purely local activity." ⁽⁴⁷⁾ Perhaps more surprising is the next sentence of the decision: "Indeed, the Government does not attempt to uphold the validity of the act on the basis of the commerce clause, which, for the purpose of the present case, may be put aside as irrelevant." ⁽⁴⁸⁾ The great surprise in this is that the government failed to even raise an argument which, just three years later, was sufficient to uphold a nearly identical statute - that Congress could regulate agriculture under the authority of the commerce clause.

United Foods - A Modern Day Butler

By laying aside the carefully reasoned Wileman case with an unreasonable and illogical distinction in United Foods, the Court has departed as far from reality as did the Butler Court. InUnited Foods, the Court held that it does not violate the First Amendment to compel payment for commodity advertising if a commodity is part of a "comprehensive scheme of regulation," ⁽⁴⁹⁾ while it does violate the First Amendment if such a commodity is not regulated. By doing so, the Court defies common sense as the Butler Court did in declaring agriculture a local issue. By saying that Congress cannot enact a law that establishes an economic regulation in which producers are assessed to pay for advertising their products unless Congress enacts a comprehensive regulatory scheme, the Court is intruding on the traditional prerogatives of the legislative branch. This all-or-nothing mandate has no basis in the Constitution.

The Court failed to distinguish where a line could be drawn that defines such a comprehensive scheme of regulation. If there is no such scheme for mushrooms, then it would seem that other commodities with little government involvement are also not part of a comprehensive scheme. However, the beef, pork, and egg industries are subject to extensive health and safety regulation that one might argue is a comprehensive system of regulation that is comparable to the comprehensive regulation of tree fruit cited in Wileman. The question also arises at the other end of the spectrum. In addition to extensive health and safety regulations, dairy products, for example, are subject to marketing orders and extensive regulation by the federal government. Cotton and other major commodities also experience a great amount of government involvement, although the free market does establish the market price for these commodities. How much regulation is necessary? Is it necessary that the regulation be in the same statute as the promotion program? It has been left unclear which category the Court would place these programs in. 

What does seem clear - and most unfortunate - is that under this test, those programs most likely to fail would be the ones for commodities that receive very little benefit from other forms of government support. As mentioned above, these research and promotion programs are most beneficial to commodities that do not receive other forms of government support, but it seems that these very programs are the first ones the United Foods Court would shoot down.

The Breyer Dissent

Justice Breyer outlined the situation the Court has created in his dissent to the majority opinion in United Foods:

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, the Court infects more traditional regulatory requirements--those related, say, to warranties, or to health or safety information--with constitutional doubt. 

Alternatively, the Courts 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. 

At a minimum, the holding here, when contrasted with that in Wileman, creates an incentive to increase the Governments involvement in any information-based regulatory program, thereby unnecessarily increasing the degree of that programs restrictiveness. I do not believe the First Amendment seeks to limit the Governments economic regulatory choices in this way--any more than does the Due Process Clause. ⁽⁵⁰⁾

The Court Misstates the Facts

This problem is exacerbated by the fact that California nectarines and peaches, the subject of the Wileman case, are not nearly as regulated as the Court portrays them to be. The Court, quotingWileman, states that the marketing orders in question "have displaced many aspects of independent business activity that characterize other portions of the economy…" ⁽⁵¹⁾ In fact, the marketing orders in question in Wileman regulate aspects such as fruit size and maturity levels, but those orders did not impose supply limits or price controls on California nectarines and peaches. ⁽⁵²⁾ Further, the case of California nectarines and peaches can't be distinguished merely because price controls or supply limits could have been imposed under the AMAA. This fails to be a distinguishing factor because the AMAA authorizes the issuance orders that would impose such regulations for "any agricultural commodity." ⁽⁵³⁾ Thus, although such additional regulations could have been imposed in the tree fruit industry, they could just have well been imposed for any other commodity.

The Court Did Not Decide the Government Speech Issue

The second issue left undecided by the Court in United Foods leaves more hope for commodity promotion programs. As an alternative to placing the case under the Wileman precedent, the government argued that the speech involved in the commodity promotion programs should be considered government speech for First Amendment purposes. Designating the results of these programs as government speech would shield them from First Amendment challenges such as that brought by United Foods. The government's arguments and those filed by supporting parties seemed convincing on this issue, but the Court refused to address them. Because the argument was not made prior to the case reaching the Supreme Court, the Court did not have to address it, and they chose not to do so. 

The Road Ahead

Where is Agriculture Left After United Foods?

These unanswered questions leave a large hole in our current agricultural policy. The recent trend in agricultural policy has been a push for farmers to do more for themselves. Planting decisions have been given back to farmers, and marketing has become infinitely more important. The future of agriculture now depends, in large part, on the ability of producers to successfully market their product in domestic and international markets. The primary tools for achieving such goals are cooperative marketing programs. In nearly every case, such programs can only be successful on a national basis. This necessity has led to the very programs that are at risk as a result of the United Foods decision. It is vitally important that the agricultural community understands the importance of these programs and takes the proper steps to ensure their continuance.

Following the Butler decision, our nation was left without a nationwide agricultural policy in a time of great need. In his dissent, Justice Stone pointed out: "The limitation now sanctioned must lead to absurd consequences." ⁽⁵⁴⁾ In the wake of the United Foods decision, agriculture faces a similar predicament. The Court's decision in United Foods may lead to a similarly absurd situation where the nationwide promotion of an agricultural commodity can only be accomplished if the government issues "a more comprehensive program restricting marketing autonomy." ⁽⁵⁵⁾

Farm Groups Must Unite and Work With Congress

In the late 1930's, farm groups were able to work with Congress to remedy the situation and ensure that farmers across the country received assistance despite a harmful decision by the Supreme Court. In the wake of United Foods, an important portion of federal agricultural policy has been placed at risk, and it will take a concentrated, cooperative effort among all sectors of agriculture to ensure that these vital programs survive. Agriculture groups will have to act together to urge Congress to step forward and take action to ensure that these programs can survive future constitutional challenges. 

One promising approach is for Congress to establish standards for the government speech that results from the advertising by commodity promotion programs. Some constitutional scholars have long thought that the government speech argument is clearly persuasive if the Supreme Court is not persuaded by other arguments. Clearly, commodity promotion programs meet the test for a government entity that was laid out in Lebron v. Nat'l Railroad Passenger Corp. The brief amici curiae filed by several commodity groups in the United Foods case describes the holding of Lebron:

In Lebron, the National Railroad Passenger Corporation (better known as Amtrak) refused to allow the petitioner to display an advertisement of political nature on a large illuminated billboard controlled by Amtrak. The question for the Court was whether Amtrak should be considered part of the government for First Amendment purposes. The Court's answer was yes. The Court succinctly stated its holding in the final paragraph of its opinion: "We hold that where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment."

Unfortunately, the government did not raise the governmental speech issue in Wileman. InUnited Foods, the argument was brought up in the Supreme Court, but had not been offered in the lower courts. Therefore, the Court refused to consider it.

USDA Signals Support for Commodity Promotion Programs

A recent, promising development is that USDA has signaled its determination to continue its support of commodity research and promotion programs. This is evidenced by the fact that a proposed order for a new program - the Hass Avocado Promotion, Research, and Consumer Information Order - was published in the Federal Register on July 13. As part of that proposal, USDA included these comments specifically mentioning the government speech issue:

On June 25, 2001, the United States Supreme Court issued a decision in the case ofUnited States v. United Foods, that held that the imposition of mandatory assessments to fund generic mushroom advertising violated the First Amendment insofar as it required the mushroom industry to subsidize commercial speech with which they disagreed. The Court expressly declined to reach the question whether the generic advertising conducted under the mushroom program constitutes government speech. ⁽⁵⁶⁾

These comments by USDA are important because support for commodity promotion programs by the Executive Branch is crucial to the continuation of these programs during the period of uncertainty that has been created by the United Foods decision. Moreover, it will be necessary for both the Legislative Branch and Executive Branch to work together to remedy this situation, just as the Roosevelt Administration and Congress worked together to protect farmers from a misguided Supreme Court decision over 60 years ago. Additional litigation before the Supreme Court will be necessary, but it would seem that strong expressions of views by both Congress and the Executive Branch would prevail on the Supreme Court to reconsider and clarify its position, just as the Court did in the aftermath of the Butler decision.

1. Michael R. McLeod, of McLeod, Watkinson, & Miller, has worked on the majority of the national commodity promotion programs. Scott Heselmeyer is a student at the Georgetown University Law Center and an intern with the firm.
2. United States v. United Foods, Inc., No. 00-276, slip op. at 9 (U.S. June 25, 2001).
3. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997).
4. United States v. Butler, 297 U.S. 1 (1936).
5. United States v. United Foods, Inc., No. 00-276, slip op. at 5 (U.S. June 25, 2001).
6. United States v. United Foods, Inc., No. 00-276, slip op. at 5 (U.S. June 25, 2001).
7. Wileman, 521 U.S. at 469.
8. Id.
9. United States v. United Foods, Inc., No. 00-276, slip op. at 5 (U.S. June 25, 2001).
10. 48 Stat. 31 (May 12, 1933).
11. United States v. Butler, 297 U.S. 1 (1936).
12. Id. at 61.
13. Id. at 68.
14. Id. at 64.
15. Schlesinger, Arthur M., The Age of Roosevelt: The Politics of Upheaval 488-89 (1960).
16. Schlesinger, Arthur M., The Age of Roosevelt: The Politics of Upheaval 491 (1960).
17. 49 Stat. 1128.
18. Benedict, Murry R., Farm Policies of the United States: 1790-1950, 348-52 (1953).
19. Mulford v. Smith, 307 U.S. 38 (1939).
20. Id. at 47.
21. Id.
22. Id. at 57.
23. Wickard v. Filburn, 317 U.S. 111 (1942).
24. Id. at 115.
25. Id. at 113-14.
26. Id. at 118-19.
27. 50 Stat. 246
28. 7 U.S.C. § 608c(6)(I) (West, 1999).
29. Forker, Olan D. and Ronald W. Ward, Commodity Advertising. The Economics and Measurement of Generic Programs 82 (1993).
30. C.V. Floyd Fruit Co. v. Florida Citrus Comm., 175 So. 248 (Fl. 1937).
31. Forker, Olan D. and Ronald W. Ward, Commodity Advertising. The Economics and Measurement of Generic Programs 81 (1993).
32. Forker, Olan D. and Ronald W. Ward, Commodity Advertising. The Economics and Measurement of Generic Programs 81 (1993).
33. 7 U.S.C. § 1787. Repealed. Pub.L. 103-130 (West, 1999).
34. 7 U.S.C. §§ 3401, 2611, 2701, and 6801 (West, 1999).
35. 7 U.S.C. § 4501
36. 7 U.S.C. §§ 2901, 4801, and 4901 (West, 1999).
37. 7 U.S.C. §§ 6001, 6101, 6201, 6301, 6401 (West, 1999).
38. Subtitle B of Title V of Pub.L. 104-127. 7 U.S.C. § 7401 et. seq. (West, 1999).
39. 7 U.S.C. §§ 7401(b)(1), 7401(b)(10) (West, 1999).
40. 7 U.S.C. §§ 7441 et.seq., 7461 et.seq., 7481 et.seq. (West, 1999).
41. 7 C.F.R. 1216 et seq., 1218 et seq.
42. Pub. L. 106-387, 7 U.S.C. § 7801 et.seq. (West 1999, 2001 Supp.).
43. Cotton Board, There is a Difference…at http://www.cottonboard.org/misc/difference.cfm.
44. Cotton Board, There is a Difference…at http://www.cottonboard.org/misc/difference.cfm.
45. Cotton Board, There is a Difference…at http://www.cottonboard.org/misc/difference.cfm.
46. Cotton Board, Index of Indicators, at http://www.cottonboard.org/misc/indexind.cfm.
47. Butler, 297 U.S. at 63-64.
48. Id. at 64.
49. United States v. United Foods, Inc., No. 00-276, slip op. at 5 (U.S. June 25, 2001).
50. United States v. United Foods, Inc., No. 00-276, slip op. at 10-11 (U.S. June 25, 2001) (Breyer, J., dissenting) (citations omitted).
51. United States v. United Foods, Inc., No. 00-276, slip op. at 5 (U.S. June 25, 2001) (quoting Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997)).
52. 7 C.F.R. Pts. 916, 917 (2001).
53. 7 U.S.C. 608c(2) (West, 2000).
54. Butler, 297 U.S. at 85.
55. United States v. United Foods, Inc., No. 00-276, slip op. at 5 (U.S. June 25, 2001).
56. Hass Avocado Promotion, Research, and Consumer Information Order, 66 Fed. Reg. 36,869, 36,876 (July 13, 2001) (to be codified at 7 C.F.R. pt. 1219).

In 1997, the Supreme Court handed advocates of commodity checkoff programs a stirring victory. The Court, by a 5-4 majority, determined that congressionally authorized programs that assess producers or processors to advertise and promote agricultural commodities were constitutional. ⁽¹⁾ For years, these programs had been challenged on the basis that the mandatory assessment of producers or processors for advertising of commodities was a violation of the producer's or processor's First Amendment right guaranteed by the U. S. Constitution ⁽²⁾

The majority in Wileman held that the collection of a fee for such activities did not even "raise a First Amendment issue for [the Court] to resolve," but was rather "simply a question of economic policy for Congress and the executive to resolve." ⁽³⁾ The fact that the Supreme Court had finally put to rest the First Amendment issue relating to "check-off" programs forced those who opposed the programs to seek other means, such as petition referenda, to terminate programs that did not have sufficient industry support.

However, the stability offered by Wileman was short-lived. In 1999, the Court of Appeals for the Sixth Circuit (which includes Kentucky, Michigan, Ohio, and Tennessee) reversed a district court decision that had held that the mushroom promotion and research program was constitutional based on the rationale in Wileman. ⁽⁴⁾ The Sixth Circuit reversed on the basis that the constitutionality of the checkoff program was dependent upon the payment of assessments for promotion and advertising being part of "a broader…regulatory system". ⁽⁵⁾ The Sixth Circuit opined that the tree fruit industry was a heavily regulated industry, with marketing orders displacing many of the competitive marketing aspects in the industry. In the view of the three judge panel in the Sixth Circuit, the assessments for advertising and promotion was a concomitant part of a more comprehensive regulatory scheme. The Sixth Circuit decided that the mushroom industry lacked a comprehensive regulatory scheme, having only a promotion and research program as the only regulations affecting the industry. Therefore, the Sixth Circuit panel reversed the district court's decision and determined that the program violated the rights of mushroom processors.

The Solicitor General of the United States, on behalf of the United States government, sought a review of this decision by the Supreme Court. The Solicitor and several Amicus Curie argued that (1) the assessments and promotion program were constitutional and were not dependent upon additional regulation within the industry to maintain their constitutionality, and (2) that the speech of the Mushroom Council was speech by the government and therefore could not violate the First Amendment rights of the defendant mushroom processor. Oral argument was heard before the Court on April 17, 2001.
 

THE MUSHROOM DECISION

On June 25, 2001, the Supreme Court issued a decision in United States v. United Foods, Inc., which affirmed the Sixth Circuit's decision that the mushroom program had violated the First Amendment rights of the processor, and distinguished the mushroom program from the tree fruit program found constitutional in Wileman. ⁽⁶⁾By differentiating the tree fruit program in Wileman and relying on the premise of heavy regulation within the industry, the six-justice majority in United Foods set a standard for review of check-off programs that is more form than substance and lacks definition. The fact that the record in Wileman indicated that the tree fruit industry was not subject to production or price controls did not prevent the majority in United Foods from using those regulatory tools to distinguish the tree fruit industry from the mushroom industry. In fact, as Justice Breyer points out in his dissent in United Foods (citing Justice Souter's dissent in Wileman), "in respect to some of Wileman's marketing orders, price and output regulations, while 'authorized' were not in fact in place." ⁽⁷⁾ Justice Breyer noted that mushrooms are listed within the Agricultural Marketing Agreement Act of 1937, as amended, as one of several commodities for which marketing orders are authorized, including those regulated under the tree fruit orders. Therefore, the majority in Wileman justified the tree fruit program because the industry had regulations "setting forth container, packaging, grade and size regulations, but not price and output regulations." ⁽⁸⁾ The mushroom industry lacked even those minor regulatory controls, and therefore was not authorized to have an assessment for promotion and advertising.
 

GOVERNMENT SPEECH

In addition, the Supreme Court in United Foods was faced with the issue as to whether the speech elicited by these Congressionally authorized and Secretary-appointed boards is government speech. If, as argued by the Solicitor General in the mushroom case, the speech found objectionable by the mushroom processor in question is government speech, the First Amendment rights of the processor have not been violated.

In a nutshell, the First Amendment limits the ability of the government to either restrict a person's speech or to force a person to speak. However, the First Amendment does not prevent the government from speaking. ⁽⁹⁾ Therefore, if the speech elicited by these checkoff boards like the Mushroom Council is deemed to be government speech, then the First Amendment most likely does not come into play. By leaving undecided the government speech issue, the Court has virtually invited the Solicitor General of the United States to present this argument in the next case involving checkoff assessments. ⁽¹⁰⁾

The Court also indicated that it did not analyze the application of the commercial speech doctrine from the Central Hudson case to determine if the Government's interest in mushroom promotion meets that test in the next case involving check-offs because the government did not urge it to do so. Under the Central Hudson test, commercial speech compelled by the government may be held constitutional if "(1) the interest being pursued by the government is substantial (2) the regulation directly advances that interest and (3) is narrowly tailored to serve it." ⁽¹¹⁾ It is not clear if this remains a viable option for analyzing mandatory funding cases after United Foods. ⁽¹²⁾
 

WHAT IS THE FUTURE OF THESE PROGRAMS NOW?

The key issue faced by many of the industries that have check-off programs is: what happens now as a result of the decision in United Foods? The decision rendered by the Supreme Court in United Foods, Inc. has invigorated the opponents of the promotion programs and will no doubt lead to several challenges to check-off programs in many industries. Proponents of the checkoff programs will seek to differentiate their program and industry regulatory scheme from that which was found lacking in the mushroom industry. Each program will argue that it meets the vague standard for constitutionality articulated in United Foods. Words such as "collectivized" and "cooperative marketing" will become common in agricultural organizations, which previously touted their independence from regulation.
 

What is the Standard?

The Court held that the tree fruit program in Wileman was constitutional because the tree fruits were marketed "pursuant to detailed marketing orders that had displaced many aspects of independent business activity" justified the assessment of producers to fund promotion activities. ⁽¹³⁾ Therefore, the extent to which an industry is regulated by the government and is subject to "collective action, rather than aggregate consequences of independent choices" ⁽¹⁴⁾ seems to strengthen the viability of a promotion and research program within the industry.

There are several cases involving checkoff programs currently working their way through the federal court system. ⁽¹⁵⁾ Some of these cases involve the beef program, which operates in an industry that is clearly subject to substantial regulation. It is also an industry that is significantly important to the viability of the agricultural community. Will the Court apply a narrow interpretation to its standard in United Foods and look at only regulations that restrict production or control price (even though those controls were not in place in the tree fruit industry)? Or will the Court view broadly its requirement for regulatory schemes and recognize inspection and safety regulations and mandatory price reporting as "a far broader regulatory system that does not principally concern speech." ⁽¹⁶⁾

Furthermore, the Justice Department, which defends the checkoff programs, has raised the government speech argument in those cases moving through the courts. The government speech argument will be front and center in the next case decided by the Supreme Court. The lower courts will build a record that describes the level of oversight and control exercised by the Secretary of Agriculture over these programs. The Supreme Court will have to decide whether the speech published by these boards constitutes government speech. If it does, the challenges to these programs will have to rely on some other avenue of attack, since the First Amendment avenue of attack will have been thwarted.
 

What About Research Activities?

This brings to issue the question as to whether all of the activities funded with the promotion and research assessments are a violation of the First Amendment. For those activities that are not speech (e.g., nutrition or production research, new product development, etc.), are the assessments a violation of the First Amendment under United Foods? How can non-speech activities be a violation of someone's First Amendment rights? Can Congress, which approves millions of dollars in disaster relief, commodity loan payments, and other tools to maintain agricultural stability, include authority for a program to maintain a stable marketing condition funded through assessments on producers and processors for research and promotion relating to their products?

Is one of the short- term solutions to the mushroom program to divert assessments to non-speech activities until the Supreme Court can decide the government speech issue? Another solution may be to allow those participants in a program that object to the speech activities within a program (e.g. advertising) to designate their assessments to non-speech programs such as research or product development, thereby removing the First Amendment issue. Lower courts are going to struggle with these issues as the cases move through the litigation process. These are all issues that will have to be addressed at some time by the Supreme Court.

The decision in United Foods has raised more questions than it has answered. The decision in United Foods addressed only the mushroom industry. Since the factual basis needs to be developed for each industry that operates a checkoff program, it is necessary that each of the programs be reviewed separately as a component part of the overall regulatory scheme within that industry. Unfortunately, instead of resolving the First Amendment issue for promotion and research programs, United Foods has merely stirred the pot.

1. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997).
2. See, e.g., United States v. Frame, 885 F.2d 1119 (3rd Cir. 1989), cert. denied, 493 U.S. 1094 (1990).
3. Wileman, 521 U.S. at 468.
4. United Foods, Inc. v. United States, 197 F.3d 221 (6th Cir. 1999).
5. Id. at 223.
6.  United States v. United Foods, Inc., No. 00-276 (U.S. June 25, 2001).
7. United States v. United Foods, Inc., No. 00-276, slip op. dissent at 3 (U.S. June 25, 2001) (Breyer, J. dissenting).
8. Id.
9. See Keller v. State Bar of Cal., 496 U.S. 1 (1990).
10. United States v. United Foods, Inc., No. 00-276, slip op. at 10 (U.S. June 25, 2001).
11. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 491 (1997) (Souter, J. dissenting) (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980)).
12. See United States v. United Foods, Inc., No. 00-276, slip op. at 3 (U.S. June 25, 2001).
13. Glickman, 521 U.S. at 469.
14. Id. at 461.
15. See, e.g. Goetz v. United States Dep't of Agric., No. Civ 00-3173 (10th Cir. April 20, 2001); Livestock Marketing Ass'n v. United States Dep't of Agric., No. Civ 00-1032(D.S.D. filed December 29, 2000); Charter v. United States Dep't of Agric., No. 00-198-BLG-JDS (D. Mont filed ___ ).
16. United States v. United Foods, Inc., No. 00-276, slip op. at 9 (U.S. June 25, 2001).
17. Wayne Watkinson is an attorney with McLeod, Watkinson & Miller who represents several commodity promotion and research programs and has drafted the legislative and regulatory authority for many programs.

"What is the matter?" said the King.
"That sword! That sword!" cried Damocles.
He was so badly frightened that he dared not move.
"Yes," said Dionysius, "I know there is a sword above your head,
and that it may fall at any moment."
"But why should that trouble you?"

From Favorite Tales of Long Ago © 1955, Aladdin Books.

But are things really that bad? Has the Supreme Court's United Foods decision really sounded the death knell for mandatory commodity promotion programs in this country? Certainly the opponents of these programs and their lawyers want you to think so. But perhaps some perspective is in order. This article will seek to answer those questions as well as to analyze both what the decision resolved and, perhaps more importantly, what it did not resolve but left open for resolution in future cases.

United Foods Majority Opinion

On June 25, 2001, the United States Supreme Court issued its decision inUnited States v. United Foods. The case involved a First Amendment challenge to the generic advertising component of the Mushroom Promotion Act. By a 6-3 majority, the Court held that the program's funding of generic advertising violated the First Amendment because it compelled mushroom producers to fund speech to which some of them objected. The Court noted that the case was different factually from the Glickman v. Wileman case decided four years ago where the Court denied a First Amendment challenge to the mandatory assessments for generic advertising required by the California Tree Fruit Agreement. That case, the Court held, involved comprehensive regulation of the California Tree Fruit industry that was so extensive that it displaced many aspects of the free market. In such a context, it ruled, the mandatory collection of advertising assessments did not raise First Amendment concerns. In contrast, the Court noted, the domestic mushroom industry is not comprehensively regulated and the free market in mushrooms has not been displaced. Where that is the case (that is, where the market remains free and uncollectivized), the Supreme Court ruled that compelled advertising assessments violate the First Amendment rights of those required to pay assessments in support of the program.

While the Court recognized that compelled funding of speech was different than compelled speech, it nevertheless noted that existing Supreme Court precedent established that the First Amendment may prevent the government "from compelling certain individuals to pay subsidies for speech to which they object." Slip.Op. at 4. The Court further noted that "First Amendment values are at serious risk if the government can compel a particular citizen, or discrete group of citizens, to pay special subsidies for speech on the side that it favors." Id. The Court rejected the government's argument that the result in the mushroom case was controlled by the 4-year old Glickman v. Wileman decision involving California Tree Fruit. It ruled:

In Glickman the mandated assessments for speech were ancillary to a more comprehensive program restricting marketing autonomy. Here, for all practical purposes, the advertising itself, far from being ancillary, is the principal object of the regulatory scheme. 

Id. at 5. In this way the Court distinguished the recent Glickman v. Wileman precedent and cleared the way for applying a very different test to mushrooms than it had applied to tree fruit from California.

Significantly, the majority opinion did not address the issue of whether such advertising constitutes "government speech." It did not deal with this significant argument because the government did not make this argument prior to the case reaching the Supreme Court. As a result, the Supreme Court declined to consider it.. We anticipate that the government will make the "government speech" argument vigorously in future challenges to commodity promotion programs.

The Breyer Dissent

Justice Breyer, joined by Justices O'Connor and Ginsberg, wrote a dissenting opinion in which he suggested that the majority opinion "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." In Justice Breyer's view, the United Foods case is controlled by the 1997 Glickman v. Wileman decision, which held that mandatory assessments for advertizing for California tree fruit did not present a the First Amendment issue for the Court to resolve but simply an economic policy determination for Congress to make. 

Justice Breyer also pointed out that the level of market regulation was not dramatically different in the mushroom market as compared to the California Tree Fruit market. He noted that while the Agricultural Marketing Agreement Act contains Congressional authorization for "heavy" marketing regulations like price and output regulations, the orders before the Court inGlickman lacked any price or output regulation. Those marketing orders (for peaches and nectarines grown in California) merely regulated packaging, container, grade, and size - but, significantly, not price or output. United Foods, Slip Op. at 3-4 (Breyer, J, dissenting). In fact, therefore, it could be argued that the marketing regulation was "light" for California Tree Fruit, not "heavy" as the majority opinion suggests. 

Justice Breyer also pointed out the logical inconsistency in the Court's decision. In essence the Supreme Court is saying that in order to constitutionally compel the funding of generic commodity promotion advertising Congress must first comprehensively regulate the marketplace for that commodity. If it fails to do so, any forced funding of generic commodity advertising will be struck down as unconstitutional. Compared with price or output regulation, Justice Breyer noted, forced funding of advertising actually results in significantly greater freedom to the producer. He states that it is "difficult to see why a Constitution that seeks to protect individual freedom would consider the absence of 'heavy regulation' . . . to amount to a special, determinative reason for refusing to permit this less intrusive program [of compelled funding of generic advertising]." United Foods, Slip Op. at 4-5 (Breyer, J., dissenting).

Justice Breyer also suggests that the unintended consequence of the Court's decision is to "create an incentive to increase the Government's involvement in any information-based regulatory program, thereby unnecessarily increasing the degree of that program's restrictiveness." United Foods, Slip. Op. at 11 (Breyer, J., dissenting). He points out, "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)[invalidating legislation mandating a maximum 60-hour work week for bakers]." United Foods, Slip. Op. at 11 (Breyer, J., dissenting). 

The citation to the Lochner case is significant. Lochner symbolizes the now-discredited substantive due process doctrine embraced by the Supreme Court at the time. During theLochner era (1897 to 1937), the Supreme Court routinely second-guessed the legislative judgments of Congress and various state legislatures and struck down numerous pieces of legislation by finding that they violated the substantive (rather than procedural) due process requirements of the Constitution. The Court at that time endured much criticism for behaving more like a super-legislature than a Court. Seegenerally, L.Tribe, Constitutional Law, § 8-2. Implicitly, it appears, Justice Breyer is making the same criticism of the majority in United Foods. He is suggesting that the Court has overstepped its constitutional role and has ventured into the legislative province reserved by the Constitution exclusively to Congress.

What Does it Mean?

While many claim that the meaning of the United Foods decision is simply the end to all compelled commodity promotion programs, a closer and more careful analysis of the decision reveals a much more complicated answer to the question is required. To begin, it surely can be said that the decision does not mean that the end of all commodity promotion programs is in sight; nor does it mean that the defense of the constitutionality of these programs will now be simple or easy. It will not. It is somewhere between those two extremes, however, that the true meaning of the decision lies. 

What the decision does seem to suggest is that there will be a new wave of challenges to these programs with each group of producers that find themselves dissatisfied with some aspect of how a program is run, filing a lawsuit seeking terminate the program on constitutional grounds.

Moreover, the decision also means that future cases will be more complicated than those in the past, with the parties seeking to establish how "heavily" the marketplace for the subject commodity is regulated, with the program's supporters asserting that the regulation is sufficiently "heavy" to make the advertising program constitutional, while the challengers will assert that the regulation is so "light" as to make the advertising program unconstitutional.

Also, all future cases are likely to have the program's supporters urging the lower court's to uphold the constitutionality of the programs on the independent and separate ground that has not yet been decided on by the Supreme Court - the ground that the speech produced by these government programs is not private speech but government speech which is not subject to the First Amendment.

This case also means, ultimately, that another case will wend its way to the Supreme Court -- a case which has a level of regulation somewhere between mushrooms and California tree fruit, and one where the government speech argument is fully presented and briefed at each stage of the case. While the Supreme Court generally only takes the cases it wants to hear, when such a case is presented to the Court, the justices will have a hard time refusing to hear such a case.

Suggested Legal Strategy

For those seeking to defend these programs in the anticipated new wave of litigation caused by United Foods, a multi-pronged defense strategy is recommended.

First and foremost, the government speech argument should be front and center of the defense against these challenges. The Solicitor General's Supreme Court Brief in the United Foods case makes an excellent case for government speech. It provides the framework for how the argument should be presented at each stage of each case. In addition, a full record should be made in support of the government speech argument, with the record to include evidence showing that the Secretary's oversight over these programs is active and involved. The record should include evidence of the Secretary's role in reviewing and approving advertising, in approving budgets, approving contracts, and attending and overseeing Promotion Board meetings.

Second, the program's defenders should analyze the gamut of regulation that affects the marketplace of the commodity. Each commodity faces various levels and types of regulation, each kind and type of regulation needs to be considered and placed before the court. In addition, in most cases, an economic expert should be considered so that he or she can take the stand and explain to the court how each regulation has an impact in the marketplace. Finally, the level of regulation should be shown as being comparable to the regulation in the California tree fruit industry and different from the regulation of mushrooms.

Finally, the defenders of these programs should provide information to the court about the other aspects of the program beyond advertising. Its important to show, for example, that substantial dollars are also spent on research, on consumer information, and on other aspects of the program. In the mushroom case the government essentially conceded that the only significant activity of the Mushroom Council was generic advertising. Where there is significant money spent on non-advertising activities, however, those facts need to be laid before the court to show how those facts contrast with the situation presented to the Supreme Court in United Foods.

Conclusion

For those who support commodity promotion programs at both the federal and state level, it is time to tell all the Chicken Littles out there that no, the sky is not falling. The sword of Damocles is not hanging over these programs, despite what the challengers and their lawyers would like everyone to believe.

The future will obviously bring much litigation. But United Foods, like Glickman, was only one battle in a war. That war goes on. It is far from over. As Dick Motta said during his stint as coach of the NBA Champion Washington Bullets in the late seventies, "The opera ain't over until the fat lady sings."

Those defending these programs have only just begun to fight. A significant argument, the government speech argument, now comes to the forefront. It is a strong and cogent argument. The judgment here is that it will ultimately carry the day. 

1. ¹ Richard Rossier and McLeod, Watkinson & Miller represent various commodity promotion entities created by federal law. Mr. Rossier and Wayne Watkinson of the McLeod firm were co-authors, along with John Roberts of Hogan & Hartson, of amicicuriae briefs filed with the Supreme Court inGlickman v. Wileman Bros. and in United States v. United Foods, Inc. in support of the government's position in each case that the commodity promotion program did not infringe the First Amendment rights of those whose assessments fund the programs. The firm also serves as legal counsel to, among others, the American Mushroom Institute.