Inc. Glickman v. Wileman Brothers & Elliott

The decision limited the First Amendment protection of commercial speech, particularly in cases where legislation introduced by the states or Congress regulated matters of trade. Because the case did not involve compelled political or ideological speech, and was considered integral to the regulation of the market, the majority found that the advertising did not violate the First Amendment. The impact of the decision was limited, however, as several justices dissented, and the decision was limited to the producers of agricultural products.

In 1937, Congress passed the Agricultural Marketing Agreement Act (AMAA), which was designed to protect the public by regulating the agricultural market. Congress saw fit to exempt agriculture from the antitrust regulations which protect competition in other markets, in order to create a collective atmosphere. The market as a whole would settle on product standards, prices, and other factors. This collectivism would benefit the public, ensuring quality products at reasonable prices. The AMAA authorized, as part of the collective action of agricultural groups, generic advertising and promotion of products. Collective actions are mandated by marketing orders, which are drafted by committees and must be approved by a majority of producers. Wileman Brothers & Elliott, Inc., objected in 1988 to two such marketing orders, which required California tree fruit producers to contribute to generic advertising.

Wileman Brothers & Elliott, Inc. was a large producer and marketer of California tree fruit, a classification which included nectarines, plums, pears, and peaches. The company refused to pay the assessments for generic advertising, arguing that the assessments took funds away from more specific advertising relating to the brands it marketed, and that it disagreed with some of the advertising itself. The Court rejected the argument that the generic advertising took resources away from more specific advertising, because "[t]his is equally true . . . of assessments to cover employee benefits, inspection fees, or any other activity that is authorized by a marketing order." The financial requirements of the assessments could not, of themselves, be understood to restrict speech. The company also objected on First Amendment grounds, arguing that it should not be coerced into financing any kind of speech.

Following the company's refusal to pay the assessments, an administrative law judge ruled for Wileman Brothers & Elliott, Inc.; the secretary of agriculture, though, reversed this ruling, and the Ninth District Court agreed. Wileman Brothers then argued the case in the court of appeals, which ruled that enforced financing of the advertising was a violation of First Amendment guarantees to freedom of speech, because the advertising represented compelled speech. The Department of Agriculture then appealed to the U.S. Supreme Court, which overturned the court of appeals' decision.

The Court's decision was primarily based on two related cases: Abood v. Detroit Board of Education (1977) and Keller v. State Bar of California (1990). In Abood v. Detroit Board of Education, the Court had addressed the concerns of state employees who were required to pay union dues, some of which were to be directed toward publications expressing political opinions. The Court in that case ruled that state employees could not be forced to pay for ideological speech; the ruling was interpreted in the case at hand as follows: "Abood . . . did not announce a broad First Amendment right not to be compelled to provide financial support for any organization that conducts expressive activities. Rather, Abood merely recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's `freedom of belief.'" Keller v. State Bar of California was a similar case, allowing California bar members' dues to finance information geared toward educating the public, but barred compelling members to endorse political views. The majority of the Court understood the generic advertising to be a similar kind of nonideological, nonpolitical speech, which Congress had authorized in order to regulate the market. Besides these precedents, the Court also considered the kinds of laws which do limit speech, and found that the advertising assessments had little similarity to them. As Justice Stevens wrote,

Three characteristics of the regulatory scheme at issue distinguish it from laws that we have found to abridge the freedom of speech protected by the First Amendment. 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 finance any political or ideological views.

But four of the justices dissented with the majority opinion. There was a concern that commercial speech was receiving less protection than other forms of speech, and that this case represented a setback regarding that speech. The dissenting justices also expressed doubt as to whether the generic advertising in question helped in any tangible way to regulate the market. The basis of the dissent was that the case failed the test for acceptable limits on commercial speech set forth in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980). In that case, it was determined that commercial speech could only be limited (or, in Glickman, compelled) if government regulation required it. The dissenting justices felt that the compelled generic advertising was excessive, and not pertinent to regulation of the market.

Because of the strong arguments of the dissenting writers and the very limited nature of the regulations in question, this case will probably not have a wide impact on matters of free speech. The majority opinion made it clear that the First Amendment would not allow any coercion to political or ideological speech, and that the ruling at hand dealt specifically with the Agricultural Marketing Agreement Act. But defenders of commercial speech cite the case as a blow to the protections of the First Amendment.