United States v. United Foods, Inc. – Oral Argument – April 17, 2001

Media for United States v. United Foods, Inc.

Audio Transcription for Opinion Announcement – June 25, 2001 in United States v. United Foods, Inc.

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William H. Rehnquist:

We’ll hear argument first this morning on No. 00-276, the United States and the Department of Agriculture v. United Foods, Inc.–

Ms. McDowell.

Barbara B. McDowell:

Mr. Chief Justice, and may it please the Court:

The assessments imposed under the Mushroom Promotion, Research, and Consumer Information Act do not abridge the freedom of speech of any mushroom producer.

No producer is restrained by the Act from communicating any message to any audience, no producer is compelled to speak, and no producer is compelled to fund the expression of others’ political or ideological views.

Mushroom producers are simply required to contribute to the costs of a program of commercial speech and other activities designed to further the economic interests of their own industry.

Antonin Scalia:

Not in their view?

Barbara B. McDowell:

Not entirely, Your Honor, no, but Congress is entitled in this sort of economic program to make the determination that the interests of the industry as a whole would benefit from such a program.

David H. Souter:

Well, you speak of the economic program.

What is the economic program other than the program requiring contributions to this advertising scheme?

Barbara B. McDowell:

Well, the program is not limited to advertising, Justice Souter.

As the title of the statute suggests, it’s promotion, research, and consumer education, so the programs authorized by the Mushroom Council can and in some instances do include more than advertising.

Anthony M. Kennedy:

But I take it it’s your position that if it were solely confined to advertising, it would be constitutional nonetheless.

Barbara B. McDowell:

That’s correct, Justice Kennedy, as long as Congress has a legitimate interest in strengthening the market for a particular agricultural commodity, Congress is entitled under Wileman to enact this sort of program and impose it upon an industry.

Anthony M. Kennedy:

Is this commercial speech that is within the First Amendment for some purposes?

Barbara B. McDowell:

Yes, it is, commercial speech.

Certainly if an individual producer was engaging in the same sort of message, the Government would be constrained by the commercial speech doctrine from restricting the speech.

Anthony M. Kennedy:

So your position is that in some instances industries or persons can be compelled to contribute to commercial speech when there is no other program that’s connected with it?

Barbara B. McDowell:

That’s correct.

Of course, such programs are subject to other constitutional constraints, such as rational basis considerations and–

Antonin Scalia:

And you say it can’t cover ideological speech.

What is ideological speech?

I mean, suppose I am a member of the People for the Ethical Treatment of Mushrooms, and I think that mushrooms should not be eaten at all, can I be compelled to take part in this advertising?

Barbara B. McDowell:

–Well, then presumably you wouldn’t be a mushroom producer and you wouldn’t be covered by this statute.

Antonin Scalia:

Oh, no, I produce them to make them happy.

I just don’t harvest them.

Barbara B. McDowell:

Well, I still think in those circumstances you would be outside the statute because you wouldn’t be selling them for consumption.

On the other hand–

Antonin Scalia:

Would it be ideological?

I mean what is this ideological line that you’re drawing?

Antonin Scalia:

I mean, what if I feel adamantly about a free market and this advertising is slanting the market?

I feel passionately that as an ideological matter a free market is a good thing.

Barbara B. McDowell:

–It’s a line that the Court drew in Wileman Brothers itself contrasting those sorts of objections of fruit producers with the kinds of objections that were asserted in cases like Abood and Keller, objections to, for example, a nuclear freeze initiative that the California bar had supported or contributions to political candidates in the Abood context.

Antonin Scalia:

So nuclear freezes and political candidates are ideological.

Barbara B. McDowell:

Those would clearly fall on that side of the line, whereas–

Antonin Scalia:

Free economy is not?

Barbara B. McDowell:

–Pardon me?

Antonin Scalia:

Free economy is not?

Barbara B. McDowell:

Well, certainly respondent and others are free, notwithstanding the Mushroom Act to express their own views about the benefits of a free economy.

Ruth Bader Ginsburg:

Ms. McDowell, I take it you’re making a point that in that respect it’s no different from Wileman, but you’ve gotten away from a point that you started on when Justice Kennedy put a question to you.

You of course are trying to make this as much like Wileman as you can.

Is there anything in this program, as there was in that one, other than the advertising?

You said the statute authorizes research and something else you mentioned, but in fact is anything going on other than the advertising?

Barbara B. McDowell:

Yes, in fact, Justice Ginsburg, other programs are going on.

There has been research into the nutritional and health benefits of mushrooms, there’s a considerable amount of working with grocery store managers in terms of the placement of mushrooms, safe storage of mushrooms, other programs of that nature, but probably the bulk of the expenditures of the program to date have been for public relations and publicity type activities, but there are other activities going on here as well.

John Paul Stevens:

Is it correct, as your opponent in the red brief says, that there are actually two different rather dramatically different kinds of programs in the Department of Agriculture and that this is not in the same group that the one in Wileman was involved in?

Barbara B. McDowell:

Well, it’s true, Justice Stevens, that the program in Wileman Brothers was authorized under the Agricultural Marketing Agreements Act and programs authorized under that Act sometimes, in most cases, in fact, do include other regulations, but there are some 11 promotion, research, and consumer information programs that are quite similar to this one, including the ones in the beef, pork, and cotton industries.

All of these programs in different years involved different components of research, consumer information, and promotion.

So it would be difficult to draw a line between which were more and less like the ones in Wileman Brothers.

David H. Souter:

But did those–

Antonin Scalia:

–I presume you can be forced to contribute to a program that is clearly against your economic interests.

I mean, you’re a peach grower and you’re compelled to contribute to an advertising program promoting yellowish peaches whereas you’re growing orangey peaches.

You could be compelled to do that?

Barbara B. McDowell:

Well, that was certainly one of the complaints that was raised in Wileman Brothers, and it wasn’t given constitutional significance.

Antonin Scalia:

So your answer is yes?

Barbara B. McDowell:

Presumably Congress could determine that there were benefits to be obtained to the entire industry by promotion that focused at least in one year on particular products.

Antonin Scalia:

And make you contribute to the saying that my competitor’s product is better than mine?

Barbara B. McDowell:

Presumably Congress could do that, Justice Scalia, but that’s not what this program does.

David H. Souter:

But in Wileman, the argument, I didn’t think it was a persuasive one, but the argument that carried the day in Wileman was that the restrictions on speech, which I agree fall within Justice Scalia’s hypo were justified because they were incidental to and they were germane to what was a true act of market regulation.

There was regulation by quality control on what could be marketed, and there was regulation in terms of quantity that could be marketed.

David H. Souter:

Now, I take it there are no such features in this case?

Barbara B. McDowell:

That’s correct, but I would disagree with your premise that there were quantity controls in Wileman Brothers.

There weren’t.

There were only quality and maturity controls.

David H. Souter:

I’m sorry, you’re right.

The standards for bringing fruit to market were in Wileman, you’re right.

Barbara B. McDowell:

Yes.

We don’t think that those differences in regulation make any difference with respect to the First Amendment interests that are implicated here.

David H. Souter:

Well, what do you make of the germaneness argument in Wileman and its relation to this case?

I mean, it’s got to be germane, the argument in Wileman was that the restrictions were germane to these other market regulatory activities, and what you have described as the Government’s activities here seem to be entirely either advertising or other promotional activities.

You said, well, they tell the produce managers where to put the mushrooms in the stores.

I mean, that isn’t market regulation.

It’s, I would say it’s simply promotion, teaching them how to sell mushrooms.

So I don’t see that there is anything to which this is germane which is comparable to the scheme in Wileman.

Sandra Day O’Connor:

Ms. McDowell, is that perhaps why you raise an alternative argument, that this, in fact, is Government speech?

Barbara B. McDowell:

We had raised that alternative argument, Justice O’Connor.

Sandra Day O’Connor:

And is it because of this problem that you’ve been listening to this morning that it doesn’t appear to be part of a broader regulatory program?

Barbara B. McDowell:

We raised the Government speech argument because we think it’s also a viable argument.

Sandra Day O’Connor:

Was that argument made below?

Barbara B. McDowell:

No, it wasn’t made below.

We believe that it’s encompassed by the question presented in our petition, and that the Court has the discretion to reach that question if it wants to.

Sandra Day O’Connor:

And are you going to address it in your argument?

Barbara B. McDowell:

Yes, I will, if I could just return briefly to Justice Souter’s question because I think our argument in Wileman Brothers and how we read the Court’s opinion is not that the generic advertising program has to be germane to some separate regulatory program.

David H. Souter:

Then why did the court spend all the time that it did discussing germaneness?

Barbara B. McDowell:

Well, as we understand the Court’s opinion, the Court was saying that the generic advertising program was germane to Congress’s interest in strengthening and stabilizing the market for an agricultural product, and that’s precisely the same interest–

David H. Souter:

So in that case then you’re simply saying that the advertising scheme was in effect germane to a general scheme of addressing the desirability of marketing this material, and that seems to me to read the germaneness requirement right out of, you know, right out of any significance.

Barbara B. McDowell:

–We would disagree.

We think that in both this case and Wileman Brothers there was a legitimate nonspeech purpose for the regulation, and that was strengthening and stabilizing the market for a commodity.

It wasn’t there and it isn’t here simply to encourage speech about mushrooms.

Antonin Scalia:

Well, if you’re… I’m sorry.

Ruth Bader Ginsburg:

Couldn’t at least one read… there may be ambiguity in it, but Wileman to have alternative arguments that is one is the germaneness thing, but then I think the Court used expressions like in any event, which sounds like that’s a self standing ground, that it wasn’t necessary to have both, if it had either, it would do.

Barbara B. McDowell:

The opinion certainly can be read in that manner, and here, as in Wileman Brothers, there is no political or ideological content to the speech.

Antonin Scalia:

Ms. McDowell, if germaneness to a Government regulatory program is irrelevant, how do you explain the limitations we’ve placed upon compulsory union dues?

Could a union compel nonunion members to contribute to union activities other than those of representing the employees so long as those other union activities are not ideological?

Barbara B. McDowell:

Yes, the Court has so held in cases such as Lehnert where the Court allowed nonmembers’ dues to be used to fund certain union programs which were not ideological and were not particularly germane to the purpose of collective bargaining but were nonetheless considered to be permissible.

Anthony M. Kennedy:

So the line gets back to ideology again, and I do want you to address the Government speech argument Justice O’Connor… let me, just one hypothetical.

Suppose that the Government decides that kids are spending too much money on designer clothes, and they want them to buy generic clothes, and because they’re causing jealousy in the high schools and all that stuff, so the Government has a huge advertising campaign, buy generic clothes, but assesses all the clothing manufacturers, including the designers, is that ideological?

Barbara B. McDowell:

We would still view that I think as a commercial message, but it would be somewhat more problematic because the clothing producers would be required to fund a program that’s directly contrary to their interests.

Anthony M. Kennedy:

But you’re controlling consumer tastes, demands, attitudes.

This it seems to me, is something that our culture, rightly or wrongly, is very interested in, and you’re saying that the Government can compel people that don’t believe in that particular approach to contribute to shaping social attitudes about it through speech?

Barbara B. McDowell:

It’s a somewhat more difficult question than this one, Justice Kennedy, I will agree with you.

If there is a sufficiently important Government interest, it might well be permissible.

On the other hand, there are always rational basis standards that apply, and it might not seem rational to single out the clothing producers in this instance for that sort of an assessment.

It seems much more rational to impose an assessment on those members of the industry that benefit.

Anthony M. Kennedy:

Oh, so now you have to have some special Government interest?

Barbara B. McDowell:

Pardon me?

Anthony M. Kennedy:

Now you have to have some special Government interest, some compelling interest that the Government is accomplishing?

Barbara B. McDowell:

Perhaps an important interest under the Abood standard if one is to view this as ideological speech.

Antonin Scalia:

Do you know the last case in which a tax scheme was stricken down because the objects of it were irrational?

Barbara B. McDowell:

It happens rarely, Your Honor, but perhaps Congress could be–

Antonin Scalia:

Very, very rarely rational basis of taxation is almost anything goes.

I can’t imagine striking down that scheme on the basis that it’s irrational because of the taxpayers identified.

Barbara B. McDowell:

–Well, the Court certainly has done that in instances where the group singled out the taxation was, for example, the media, but obviously the hypothetical posited by Justice Kennedy wouldn’t involve that.

If I could get–

I think we deflected Justice O’Connor’s question about Government speech.

Barbara B. McDowell:

–I was about to get back to that, thank you.

It’s our view that the speech here is speech of the Government, funded by taxes or user fees on those who are perceived by Congress to benefit the most from the speech.

John Paul Stevens:

But does the tax apply to everybody who benefits from the speech?

Barbara B. McDowell:

Pardon me?

John Paul Stevens:

Is the tax imposed on every producer who benefits from the speech?

Barbara B. McDowell:

It’s imposed on those who Congress determined would benefit the most.

John Paul Stevens:

Is it imposed on all of those who benefit from the speech?

Barbara B. McDowell:

Surely there may be some small producers that–

John Paul Stevens:

Is it imposed on all those who benefit from the speech?

William H. Rehnquist:

Answer the question.

John Paul Stevens:

Yes or no.

Barbara B. McDowell:

–No, no.

John Paul Stevens:

Okay.

Barbara B. McDowell:

And indeed Congress perceived the statute to benefit the entire agricultural industry, and indeed the entire agricultural industry does not pay those assessments, either, but Congress determined that the major mushroom producers would be the ones who benefited the most, and the vast majority of the industry does contribute to the assessments.

William H. Rehnquist:

Well, how about our old Butler case you know, in 1936, where there was a tax on processors that the Court held was unconstitutional because it was misdirected.

Now, then the case may not be good law anymore, but certainly you’ve got some problem with a tax which is imposed on some people but benefits a lot of other people.

Barbara B. McDowell:

Well, Congress could reasonably determine that the costs of imposing the tax on the very, very small producers would exceed the benefits of doing so.

For example, under the current assessment of a quarter cent per pound of mushrooms produced, the smaller producers, those who are exempt, would pay at most $1250 a year, and that’s really a very small amount.

William H. Rehnquist:

If you treat this as simply a tax thing, a tax scheme, that’s probably our most lenient standard of review, but you have the commercial speech cases which talk about an intermediate level of scrutiny well above even ordinary rational basis.

Barbara B. McDowell:

Well, that’s correct, but we don’t believe that the commercial speech cases, Central Hudson, and so on are applicable here because we’re not talking about restrictions on anyone’s speech or regulations of speech.

Rather, we’re talking about a program that imposes a tax or user fee for the purpose of encouraging more consumer speech, not less.

Ruth Bader Ginsburg:

Is there any message here other than–

William H. Rehnquist:

–Well, that argument’s rejected in Buckley–

Ruth Bader Ginsburg:

–mushrooms are so good for you?

I mean, I thought that that was your central point, that unlike Central Hudson, this is not a restriction on what anybody can say.

This is just a message that presumably all who sell mushrooms couldn’t object to.

Barbara B. McDowell:

That’s correct, Justice Ginsburg.

William H. Rehnquist:

The argument you just made, that the Government is paying to have more speech was exactly the argument we reject in Buckley where the campaign finance rule that we struck down said, you know, we need to hear from more people, not less, and so we’re going to restrict some people’s speech, and the courts refused to go along with that.

Barbara B. McDowell:

Yes, in contrast to Buckley, though, this isn’t a program that restricts people’s speech, that limits how much mushroom producers can speak.

They are free to speak as much as they want to.

They are only required to contribute money to this program in addition so that there can be generic speech.

Sandra Day O’Connor:

What is our closest case that supports this kind of fee to pay for some kind of Government designed speech?

What do you rely on?

Barbara B. McDowell:

I’m not sure that we have any case of this Court that involves a targeted fee to pay for a Government speech program.

Certainly the Court has recognized, although not necessarily relied as a holding on the principle that the Government isn’t subject to the constraints of the First Amendment when it speaks on its own behalf, and the Court has recognized that all Government programs don’t have to be funded through general tax revenues but can be targeted, can be funded through a variety of user fees and other targeted taxes.

Anthony M. Kennedy:

Well, I’m not sure it would be a stable or a workable line, but it does seem to me that there’s not much we can do about Government speech, but maybe at least we can say it has to be funded by general revenues and not from a targeted group that objects to it.

Barbara B. McDowell:

Well, that would obviously be a line could you draw, Justice Kennedy.

There are some cases that have similar aspects, where the Government has imposed a user fee on individual speakers, for example in the context of the Cox case, the Court recognized that user fees could be imposed to reimburse local Government for the costs of administering parades, and so there seems to be nothing inconsistent with the First Amendment with requiring special taxes or assessments for speech activity.

Anthony M. Kennedy:

Is there anything–

John Paul Stevens:

–May I ask, if the Government has made this argument, and there have been a bunch of these cases involving different programs, meat and pears and so on.

Has the Government made the Government speech argument in any of these other cases?

Barbara B. McDowell:

Yes, we made the argument in the Frame case, which was the case that conflicted with Wileman Brothers, a Third Circuit case.

The Third Circuit, although it perceived the question as a close one, did not rule for the Government on the Government speech ground.

It instead ruled on the ground that there was a compelling interest for the beef program, which is very much like the mushroom program.

John Paul Stevens:

Right.

I had one other question that’s based on something in the red brief.

I don’t recall this, but they quote from the oral argument in the case, the Wileman case, saying that the Government said they would lose if it were not a marketing program like this, is that a correct statement?

Barbara B. McDowell:

No, it’s not a correct statement, Your Honor.

What we said was that if the Court didn’t recognize that there was an important purpose to be served by these programs, we would lose, but we didn’t tie our argument in Wileman to the existence of additional regulation.

John Paul Stevens:

I see.

Anthony M. Kennedy:

Why do we need an important purpose other than just to solve rational basis, in which case is any old purpose?

Is it important because speech is involved?

Barbara B. McDowell:

We were arguing in that case pre Wileman, obviously, before the Court’s Wileman decision that the Abood standard was the appropriate one to apply in these cases, and under Abood the speech program that’s funded by the objectors has to be germane to an important Government purpose, and so that’s why we were arguing that the purpose was at least important.

We would argue, of course, that the purpose of the Mushroom Act is also an important one to strengthen the mushroom industry, as Congress found, and to thereby strengthen the entire agricultural commodity.

Antonin Scalia:

Is there anything that Congress does that is not important?

I mean, if strengthening the mushroom program is important, what is not important?

Can you give me an example of some Government program that is not important, less important than strengthening the mushroom program?

Barbara B. McDowell:

I wouldn’t be able to give you one, Justice Scalia, but certainly in this case Congress conducted hearings on the Mushroom Act, heard from both sides of the issue, and heard some legitimate concerns from members of the mushroom industry about developments in the industry over the past decade or so that had resulted in many mushroom farmers going out of business.

William H. Rehnquist:

There’s a mushroom caucus in Congress, isn’t there?

Barbara B. McDowell:

I’m not aware of that, Mr. Chief Justice.

Antonin Scalia:

A subterranean group, no doubt.

Barbara B. McDowell:

To get back to the Government speech argument, we would emphasize that the Mushroom Council, the entity that engages in this speech, was created specially by Congress, Congress specified that the Secretary of Agriculture would appoint all members of the Mushroom Council, Congress specified the categories of activities in which the Mushroom Council could and could not engage and Congress provided that the Secretary of Agriculture would have to approve each plan, project, and budgeted the Mushroom Council before it was–

Anthony M. Kennedy:

Well, what’s the case or the rule or the line of doctrine that says speech interests can be abridged because there’s an important, as opposed to simply a rational, Government interest?

That sounds to me like a new line of cases.

Barbara B. McDowell:

–Well, we would suggest that this particular program doesn’t involve any infringement of speech interests at all.

Barbara B. McDowell:

The Court has suggested that there are some First Amendment interests–

Anthony M. Kennedy:

Well, but that’s–

Barbara B. McDowell:

–implicated in cases such as Abood with–

Anthony M. Kennedy:

–But then why are you saying it has to be an important interest?

Then if speech isn’t involved, then just any old rational basis will do, the Government can do whatever they want.

Barbara B. McDowell:

–Well, that’s correct, and that’s what the Court seemed to recognize in Wileman Brothers, that this case did not implicate any special First Amendment interests at all and therefore rational basis applied.

We had argued in Wileman Brothers not for a standard that lenient but for the Abood standard, and we were arguing there that the programs from California tree fruits satisfied that standard, as would the mushroom program here.

No further–

John Paul Stevens:

There is another question I have on the Government speech argument.

How significant is it that it wasn’t raised below, and you’re the petitioner, you’re not the respondent?

I know you say it’s embraced within the question presented, but does that satisfy the procedural requirement?

Normally when petitioner relies on an argument, the petitioner should have raised it at some earlier stage in the litigation.

Barbara B. McDowell:

–We should have raised it, Your Honor, that’s true.

We didn’t.

We think that the Court certainly has jurisdiction and discretion to address it in this case, and the Court has addressed similar cases that have come up in similar circumstances.

When cases occur–

John Paul Stevens:

What’s the closest case you can call our attention to that would say you have not procedurally defaulted the issue?

Barbara B. McDowell:

–Vance v. Terrozzas, 444 U.S. 252, a 1980 decision by Justice White.

Stephen G. Breyer:

Does it matter if they have an ideological objection?

I noticed in their brief they said they objected to the association of mushrooms with alcohol, for example.

Barbara B. McDowell:

No, we believe that under Wileman this is not the sort of objection that would amount to an ideological one, one that would invalidate the entire program.

It’s more as the Court put it in Wileman, a disagreement about tactics.

Ruth Bader Ginsburg:

Is there a procedure to object to that?

It’s one thing to say that mushrooms are so good to eat, but if one says they’re an aphrodisiac, is there a procedure to object to that kind of advertisement?

Barbara B. McDowell:

There is certainly a procedure through the Mushroom Council which consists of persons who were nominated by members of the mushroom industry to contact them and to express disagreement.

Ruth Bader Ginsburg:

How about the Secretary of Agriculture?

Barbara B. McDowell:

Such complaints can certainly be voiced to the Secretary of Agriculture as well.

There’s not a mechanism, for example, for obtaining a refund for this sort of expression with which one might disagree, but there are avenues for expressing objections.

Indeed, I would note that respondent’s own representative was a member of the Mushroom Council at the time that the so called aphrodisiac program was implemented, and he voiced his objection to it at the time and apparently was not persuasive to the other members of the Council, but he certainly was heard on that matter.

If there are no further questions, I will reserve the remainder of my time.

William H. Rehnquist:

Very well, Ms. McDowell.

Mr. Tribe, we’ll hear from you.

Laurence H. Tribe:

Thank you.

Mr. Chief Justice, and may it please the Court:

Because something in this case does appear to turn on whether merely rationality review is appropriate or whether one needs something more important, we would suggest very much more important since we do think this is a free speech case, I wanted to begin with Justice Scalia’s question, is there anything that Congress does that is not important.

I think it’s a question, however couched, that one really has to address in the context of these programs because, as the Solicitor General mentioned, there are a dozen programs in which Congress has essentially provided for the Government to mandate that growers and producers pay for advertisement and then although there is some other informational stuff, that’s the core of it, and in this case, as we point out in footnote 7 of our brief, it’s 98 percent of it.

These other programs are really quite haphazard.

They cover blueberries but not raspberries.

They don’t cover strawberries.

They cover avocados, not artichokes.

They cover popcorn.

At 1996 Congress found specifically that popcorn has all of the characteristics of mushrooms vital to the economy, and indeed it was in 1996 determined by Congress that canola is even more important to the survival of the economy and yet no canola program was put in place, and maybe that explains why problems are occurring.

Ruth Bader Ginsburg:

Mr. Tribe, how does that differ from some tree fruits that were covered and others weren’t in Wileman?

Laurence H. Tribe:

Not at all, but in Wileman you had an economic regulation essentially, and as the Chief Justice pointed out in his concurring opinion in the Greater New Orleans case, the various haphazard features of the commercial regulation there, of commercial speech might have been constitutionally tolerable if Congress had undertaken substantively to regulate the gambling industry.

That’s a very fundamental difference.

Of course, one finds a crazy quilt pattern and one doesn’t inspect Congress’ findings when merely rationality is involved, but if we are to accept the Government’s theory, and I want to turn to Government speech in a moment, if we’re to accept the Government’s theory that whenever there is an interest, not a program, not a regulatory regime, nothing like collective bargaining or a labor union with an integrated set of obligations or an integrated bar, as in the Keller case, but just an interest, like the interest in not having kids waste too much money on designer clothes.

Whenever you can posit an interest in the air and then you can find speech that would advance that interest, that’s all you need.

Now, that would be an astonishing principle.

Stephen G. Breyer:

Why is it astonishing?

Suppose the Government were to say museum goers pay an extra ten cents on a ticket so that we then can advertise to the inner city the presence of museums.

Suppose that you had tobacco, and they said we want to charge 50 cents more a cigarette pack so that we can advertise that cigarettes are bad for you?

All right, I mean, you can think of–

Laurence H. Tribe:

Sure.

Stephen G. Breyer:

–lots of things that are not the slightest bit absurd.

Laurence H. Tribe:

Right.

Stephen G. Breyer:

And you’re saying that all those things are unconstitutional?

Laurence H. Tribe:

I’m not.

I do believe that the Court would have to break new ground, perhaps along the line Justice Kennedy has suggested if there were Government speech.

In your questions, Justice Breyer, you said we, we.

Stephen G. Breyer:

Oh, no, there isn’t.

Stephen G. Breyer:

In my questions there is no Government speech.

Laurence H. Tribe:

Well, who is the we in your question?

Stephen G. Breyer:

The we is that they have the museum council, and the museum council is told by statute to collect ten cents on each ticket to advertise museums in the inner city or we have the tobacco council, and the tobacco council is told to collect 50 cents a pack to advertise that tobacco smoking is bad for you.

Now, I’d want to know… all those things seem identical to me.

Laurence H. Tribe:

Well, it seems to me that I really should turn to whether this is speech for which the Government bears responsibility because it seems to me that in all of your cases, whether the ultimate vehicle for the speech is the tobacco council or the Government, it’s the Government’s message.

It’s quite different to say that we’re going to take money from private enterprise, private individuals, we’re going to give it to other private individuals so that they can compose a message, like a message that brands don’t make any difference, if you’ve seen one mushroom, you’ve seen them all, a message which is very much opposed to the interest of those who are forced to pay.

Now, if this were Government speech, where Government is accountable to the people, a principle like Justice Kennedy, saying that as long as the beneficiaries are the ones who are taxed might suffice, but let me turn to whether it’s Government speech because I think when we get back to the question of whether it can survive on any other theory, it will be fairly clear that it cannot.

Now, I’m not going to spend time on whether this issue is properly before the court, except to say that it’s not just a technicality, it’s not simply that the matter was not raised or addressed below, and–

William H. Rehnquist:

Well, to what extent do you have to, you know, if you lose a case in the court of appeals, your common sense tells you have a little bit different emphasis in the Supreme Court, maybe you’ll win.

Laurence H. Tribe:

–Oh, I understand their reasons for doing it.

I just wanted to say what reasons the Court might have for not letting them do it.

And that is that if you look at the face of this law, as I’ll explain in a moment, it’s not Government speech.

To show that it was, they would have to adduce some facts, as in Brentwood.

William H. Rehnquist:

But we’re talking about the First Amendment.

This is just one strand as opposed to another strand of First Amendment arguments.

Laurence H. Tribe:

I’m not saying the Court lacks jurisdiction, but I’m saying in order to establish that the Government is really responsible for these messages, despite the fact that under the regulations and the statute, the secretary cannot, in fact, reject a message for any reason other than that the program established by the Mushroom Council, it violates the statute, or that the message derogates another individual’s product.

The message is composed by these private individuals in the Mushroom Council.

The members of the Mushroom Council are selected by nomination from the private industry.

The Government is simply saying, promote mushrooms.

Now, if that is Government speech, it seems to me that in a case like, oh, for example, it seems to me that in the Amtrak case where they rely heavily on Lebron, in Amtrak where this Court did hold that for purposes of making first amendment arguments against Amtrak, it is an instrumentality of the Government, but the artist who wanted to put something on that huge billboard in Amtrak’s Penn Station was not going to be propagating a Government message simply because the Government was providing the facility.

The question of whether you can make a First Amendment argument against an entity whether it’s sufficiently the Government for that purpose, has nothing to do with the question of whether it is Government speech when that entity, as in the case of the Mushroom Council, uses its private capacity to propagate messages in its private interests.

Mr. Tribe, I thought that the Secretary of Agriculture was the one who had the ultimate say about whatever message the Council proposed would, in fact, be allowed to be spoken.

Ruth Bader Ginsburg:

Isn’t that so?

Couldn’t the Secretary of Agriculture say I veto this message, we won’t have it?

Laurence H. Tribe:

He could under the statute, only if the message is not consistent with the statute.

If he does not have general censorial powers, he’s not an editor under this statute.

So that–

Ruth Bader Ginsburg:

I thought he’s an approver, that if he doesn’t approve, the message doesn’t go out.

Isn’t that so?

Laurence H. Tribe:

–He has the ultimate power to approve the whole program.

Laurence H. Tribe:

The program is approved by him.

But he does not have authority to disapprove a campaign of advertising under the program on the ground that he doesn’t like what it says.

He has never exercised such authority, the regulations don’t–

Ruth Bader Ginsburg:

Maybe he hasn’t exercised it, but where in the statute does it say he doesn’t have that authority?

Laurence H. Tribe:

–Well, in the guidelines of the Department of Agriculture itself for oversight of commodity research, on page 49 of our brief, the description is that the agricultural marketing service only reviews materials to ensure that they are in compliance with the applicable legislative authority.

I don’t know if one could construe this statute to make the Secretary of Agriculture assume a purely editorial capacity, I rather doubt it, but clearly no such construction has been suggested by the agency that administers the statute.

I think the idea that the Mushroom Council is somehow the voice of America is not plausible.

It’s not plausible because this is not a message that the Government has in any way organized or composed, and if one did take that view–

Anthony M. Kennedy:

Suppose there were some sort of a disclaimer or an affirmation, I suppose it would be, this message is required and permitted by a Governmental program and Governmental regulations.

Laurence H. Tribe:

–The fact that it is permitted by Government does not mean that it is Government’s voice.

A great deal is permitted by the Government.

If it is required, if the exact words are required, the words on a cigarette package, the surgeon general has determined that this is detrimental to your health.

That’s Government speech.

But if we say this is Government speech, then much of what this Court was struggling with, in cases like Keller and Lehnert, the speech of a State bar association, an integrated bar, which the Chief Justice in his opinion for a unanimous Court pointed out the integrated bar for some purposes might be the Government, but the expressive activities in which it engages, even if they are germane to the purposes of collective bargaining, that is, even if they are related to the process of exclusive representation and therefore squarely within the ambit of what the Government has authorized the entity to do in the case of a labor union, and even if they are part of the process of regulating the legal profession or improving legal service, it doesn’t make it Government speech.

In fact, the magic wand of Government speech would obliterate a great deal of the doctrine this Court has carefully built.

I do think it’s worth looking at the reasons.

Stephen G. Breyer:

Would it be Government speech, though, with the museums?

Laurence H. Tribe:

Well, if you had a comparable.

Stephen G. Breyer:

I mean, what they’re doing is a tax, museums, they’re private organizations.

Laurence H. Tribe:

Well, taxing the consumer of a product–

Stephen G. Breyer:

No, no, no.

What happens, they raise it the same way.

I just want to make it the same.

Laurence H. Tribe:

–I don’t care if it’s a tax.

Stephen G. Breyer:

I want to make it the same.

Laurence H. Tribe:

Okay.

Stephen G. Breyer:

And then the museums are going to advertise throughout the city the arts.

They are going to say come to the museums, the arts.

Laurence H. Tribe:

To make it the same… I’m sorry.

Stephen G. Breyer:

It could happen.

Laurence H. Tribe:

I didn’t mean to interrupt.

To make it the same, Justice Breyer, you would have to have a group of museums, some of them believing that all museums are the same, and you don’t have to have anything fancy in the museum, it doesn’t really matter if you have any Jackson Pollack, you just put stuff up, and other museums that specialize, and they have brands.

And now the Government comes along and says, all of you are free to say what you want about whether you will have Picasso there or Jackson Pollack.

Anthony M. Kennedy:

Well, then the test just is whether or not it’s against a particular taxpayer’s or contributor’s interest.

I don’t think that’s going to work.

I’m concerned about the museum, hypothetic–

Laurence H. Tribe:

–I think the users–

Stephen G. Breyer:

–Even the… see, the problem is you go in, what the actual problem it seems to me, and through tobacco, is to start making these distinctions.

I don’t know what kinds of lines we’re going to have to draw.

Does the fact that it’s a tobacco, antismoking message make the difference, all other things being the same?

Laurence H. Tribe:

I see the problem, but the quicksand that you’re describing, I think, one can avoid to some extent by saying that the Government does not have the power without complying with a very stringent First Amendment requirement to make people speak, either speak directly or contribute to someone else who then propagates a message in effect in their name.

It’s true that when I buy a product, the price may include the advertising costs.

I buy Pictsweet mushrooms and it… but if we say the Government can make the people who sell clothes say that it’s not very good to buy designer clothes, then we are lost.

Anthony M. Kennedy:

So what would happen in this case, everything’s the same except the Department of Agriculture writes all this stuff?

They assess, then you would have somebody in the Department of Agri… that would bring it on a parallel with the museum hypothetical.

Laurence H. Tribe:

I think general, what I would like to see, but the Court has really not struggled with problems in this precise area, I would like to see a principle that says that Government speech, when the Government takes responsibility for it, and assumes the shield from First Amendment scrutiny must be funded from general revenue.

Antonin Scalia:

Of course it could be, Mr. Tribe, that the mushroom example strikes us as different from the museum example or the tobacco example simply because we’re more permitting of restrictions upon free speech for reasons that we consider good, and maybe we like museums a lot and we hate smoking a lot, and we’re quite indifferent to mushrooms.

That might express, it might be the reason behind why these examples cause difficulty.

I frankly don’t see any more justification for the museum example or the tobacco example than I do for the mushrooms.

Laurence H. Tribe:

I think that’s right, Justice Scalia.

That is, apart from the portion of your statement that said we’re indifferent about mushrooms, which doesn’t reflect my present state of mind, apart from that, I think that it should not be permissible for the Government to make people propagate messages.

How can it possibly make a difference whether we are told, you’d better hire an agency next year and spend a hundred thousand dollars and advocate the following view, either that mushrooms are not so good for you or that mushrooms are great or that mushrooms make you want to smoke and therefore they’re not good for you.

Ruth Bader Ginsburg:

The surgeon general has determined that smoking is hazardous to health.

That’s a message that the Government compels every cigarette manufacturer to put.

Laurence H. Tribe:

That’s right.

Ruth Bader Ginsburg:

Are you saying in your answer to Justice Scalia that that too is in violation of the First Amendment?

Laurence H. Tribe:

Well, Justice Ginsburg, I think the principle that sometimes what you don’t say is as important as what you do explains why in cases like Zouderer and DeBonyez the Court has stopped short of saying that the Government may never fill in the gaps in someone’s commercial.

That is, if one is selling cigarettes and not mentioning that, by the way, they may kill you, perhaps the Government has the power, it’s been assumed that it does, to say you better add that to your message, but this is not a case where there is a gap in speech that’s being filled by the Government to protect consumers.

Here the Government says we want essentially to manipulate consumer preference.

It’s exactly like Liquormart except a mirror image.

Laurence H. Tribe:

In Liquormart this Court essentially said, if you, I think, combine the opinions I think this Court said, that if your purpose is to affect consumption, in that case of liquor, by affecting price, and to affect price by, in that case, wording competition because competition might drive price down and drive consumption up.

Then you at least have to satisfy Central Hudson, you would at least–

Ruth Bader Ginsburg:

But then these cases, like Central Hudson, say this is what you can’t say.

In this case the argument is nobody is stopping any individual producer from saying whatever they want to say.

They must in addition support the generic advertising, but except for the theory that there’s only a limited kitty and if I have to support generic I won’t be able to plug my own product, it is very different from saying I’m closing your mouth, you cannot say X.

I’m saying you can say X, but you must in addition say Y.

Laurence H. Tribe:

–Justice Ginsburg, in Riley and in Hurley, this Court said it’s not very different.

Forcing you to say X is not different from preventing you from saying Y, and that’s why the example I just–

John Paul Stevens:

If I may just interrupt, nobody’s forced to say anything here.

Your client doesn’t have to say anything.

All he has to do is pay money into a fund.

Laurence H. Tribe:

–A corporation never can say anything, all it can ever do is pay money.

John Paul Stevens:

No, but it can finance its own message.

It is not being compelled to say anything as a separate entity.

Laurence H. Tribe:

I understand, Justice Stevens, and I think technically… well, that’s why I gave the example of go and hire an ad agency.

If the only thing that Riley and Hurley prevent is having the Government actually say to you, you must use your own employees to get out the following message, then it would follow that they could require us, just as they can require us to put money in the kitty of the Mushroom Council so that they can speak for us, they could require to us go out and hire an ad agency and put out a certain kind of message and spend a hundred thousand a year because they wouldn’t be buttoning our lip.

And by the way, the message better be, all mushrooms are great.

It seems to me if we’ve had to hire an ad agency, no one here would doubt that that violated the First Amendment, to require us to do it, and yet that would be better for us than having to rely on the Mushroom Council.

Anthony M. Kennedy:

Can the Government just advertise mushrooms on its own?

Laurence H. Tribe:

I believe it can.

The Government can–

Anthony M. Kennedy:

Just some kinds of mushrooms?

Laurence H. Tribe:

–It can be selective.

The Government can… viewpoint based in its speech.

Anthony M. Kennedy:

But it can’t target a particular group to pay for that?

Laurence H. Tribe:

I think the moment you start targeting people to pay for speech, a certain subgroup, there is a First Amendment problem.

Stephen G. Breyer:

Of course you think of the securities area where it’s among municipal bonds, as soon as you get into that it’s a common thing for a Government to require people to take certain newspaper ads, to have certain kinds of prospectuses.

Laurence H. Tribe:

To protect consumers.

Stephen G. Breyer:

Well, ah yes, all right.

Now, just for reasons that are good reasons.

Stephen G. Breyer:

I mean, this may be quite basic, and the cases may just not permit me to ask this question, but I just wonder why it is that advertising here you’re going to treat differently from solicitation to buy stocks from any one of thousands and thousands of business activities carried on, as all business is, through speech acts which are subject to wide varieties of regulations, subsidy, dozens of things.

Laurence H. Tribe:

Justice Breyer, I think there is a common theme that’s very important, and that is, regulation designed to eliminate impediments to fair bargaining may sometimes involve an informational component.

Certain kinds of deception interfere with the ability of people to operate in the marketplace of ideas and goods and services.

It’s on that theory that the commercial speech doctrine can make some sense, and as suggested in a number of this Court’s opinions that I think may converge to that view, whenever you try to manipulate preferences rather than enabling people to express them, you are essentially playing a big brother role with information.

That’s why there’s a fundamental difference in principle between saying, in this case you better add a certain warning or you will be fundamentally fooling the person on the other side of the bargaining table–

Is the fundamental principle–

Laurence H. Tribe:

–and saying you better say the following kind of thing because it’s important to us that you say it.

Anthony M. Kennedy:

–Is the fundamental principle just that there’s a slippery slope here?

Suppose you have tires that are coming apart at high speeds, there’s two ways to solve it.

One is for the Government to inspect everything and to charge the tire makers for the inspection fee and then put a Government inspection label on it.

I assume no problem with that.

Laurence H. Tribe:

Right.

Anthony M. Kennedy:

Auto tire… tire makers have to pay for it.

Let’s say that it is more cost effective for the tire makers to simply advertise that they have been inspected by the Government and the tire makers are required to do that.

Assume that it costs the same or even less to require the advertising scheme, but that the same objectives are achieved so far as the market.

Why is the Government prohibited from doing one and not the other, just because of the slippery slope of speech?

Laurence H. Tribe:

Well, I wouldn’t minimize the importance of the slippery slope, but I’m not sure that the advertisement of the fact, the mere fact that you’ve been inspected by the Government is anything more than requiring you to be a vehicle for Government speech, and cases like Wooley v. Maynard supposedly limit that.

They limit it on the ground that if the message is ideological, you shouldn’t be forced to do it.

But there’s the slippery slope.

Where does ideology end?

Ethical treatment of mushrooms.

It seems to me that it’s far safer in terms of protecting people from either having the Government button their lip or having the Government force them to speak, to limit the Government’s power with respect to mandating speech or mandating the funding of speech to cases where the Government can show not just any old general important interest because that’s unlimited, but show that the transactions involved are going to be significantly distorted by either misinformation or by overbearing unless a certain message is included.

The moment you go beyond that, it seems to me, the moment you take advantage of that branch of the Central Hudson test which allows the Government effectively to control speech in order to manipulate preferences because it’s in the public interest, you’ve abandoned the premise of Virginia Board of Pharmacy and of the whole line of cases that follow it.

Antonin Scalia:

So you don’t like the museum and the smoking example, right?

I mean, on that theory, they would be bad.

Laurence H. Tribe:

I think so, but I do want to remind the Court that the issue here is principally whether this program can escape scrutiny under the First Amendment, not whether it is bad under the First Amendment.

David H. Souter:

But I thought the smoking, I thought the justification for the smoking example, as you put it, was to fill a gap, which I took it as a way of saying it required the correction of what would otherwise have been a misleading presentation by the tobacco company.

Antonin Scalia:

Excuse me, I meant the other smoking example of general advertising, smoking is bad–

David H. Souter:

–Oh, oh, oh.

Antonin Scalia:

–not the thing on cigarettes.

Laurence H. Tribe:

Right, I have no problem with the thing on the package–

David H. Souter:

I’m sorry, okay.

Laurence H. Tribe:

–but making the industry fund a campaign.

David H. Souter:

And likewise here if every 100th mushroom was blue and blue mushrooms made you sick, there would be no problem–

Laurence H. Tribe:

No problem at all.

David H. Souter:

–in funding a scheme saying look out for the blue mushroom?

Laurence H. Tribe:

Look out for the blue mushroom, that’s right.

No problem whatever.

Whether this program should be subject to First Amendment scrutiny other than on the Government speech theory, which as I tried to explain, I think, does not work, depends, I think, on whether it is ancillary to something, that is, it’s not a question of exactly what all the bells and whistles look like in the regulatory program for nectarines and peaches.

It was clear, as this Court repeatedly emphasized, including in the section of the opinion explaining why the Central Hudson framework didn’t fit, it was clear that the fundamental structure of the program was to replace individual choice and competition with collectivization, and when you do that, the premises of Central Hudson don’t work, and when you collectivize, among other things, people don’t necessarily have much incentive to say things that will have positive spillover effects for other people’s products.

There’s a kind of advertisement gap which perhaps the Government could fill the way it did in Wileman.

It’s a close question.

Ruth Bader Ginsburg:

Mr. Tribe, all this depends on your reading Wileman in a way other than Justice Souter appeared to read it in his footnote 3 when he said–

Laurence H. Tribe:

Uh huh.

Ruth Bader Ginsburg:

–germane is one thing or is not ideological.

He seemed to think that this opinion had two legs, and it could stand on one or the other.

Laurence H. Tribe:

Well, I must say I read the in any event phrase, which is pivotal here.

Ruth Bader Ginsburg:

That’s from the–

Laurence H. Tribe:

From the… right.

Ruth Bader Ginsburg:

–the Court’s opinion.

Laurence H. Tribe:

I know.

I read it less literally.

Ruth Bader Ginsburg:

I’m reading the… or from the dissenting opinion.

Laurence H. Tribe:

Right.

But it seems to me that all one really has to ask is whether it would be conceivable to have a rule that says as long as it’s not ideological, it doesn’t matter whether it’s germane to anything, you can make people speak about it, so we could make the mushroom people distribute copies of weather reports to everyone in the country.

You might come up with a rationalization for that.

If on the other hand–

Stephen G. Breyer:

Wasn’t it true that in the Wileman that the object… it wasn’t cartelization, there weren’t price or production regulations, there were simply regulations as to product quality.

Laurence H. Tribe:

–Well, but for one thing you can have a serious antitrust conspiracy simply because of minimum quality agreements.

Stephen G. Breyer:

Yeah, that’s true.

Laurence H. Tribe:

But it really went beyond that.

Also, there were size restrictions on the fruit.

Antonin Scalia:

Poor quality–

Laurence H. Tribe:

The nectarine.

Antonin Scalia:

–is one manner of competing, you sell poor quality–

Laurence H. Tribe:

Exactly, exactly.

Antonin Scalia:

–goods at a cheaper price.

Some people prefer to pay less and can’t tell the difference.

Laurence H. Tribe:

But clearly they were immune, for example, from the antitrust laws.

This was now collectivized, and so all the talk about the free market of information which underlies and undergirds Virginia Board didn’t apply.

David H. Souter:

The only difference was the particular thing.

Germane there to product quality, germane here to expanding the market.

Laurence H. Tribe:

But that’s always present.

That is, if you want to… germane in Liquormart to having people consume less liquor, I mean, that will never do.

It seems to me the moment you kick the prop out from under this it’s simply a free floating mandate to fund speech, and it seems to me as such it can’t possibly be sustained.

And I do think that even the word germane is awfully slippery, as is the word ideology.

It seems to me that when you look at, for example, what Keller said about the Ellis case, it’s really required in the whole Abood line of cases that something be reasonably necessary as an expense incurred to make the nonspeech program of collective bargaining or of professional regulation work.

This is not reasonably necessary to make anything work except itself, and indeed one of their amici representing beef and milk and eggs I think said it quite bluntly I think on page 6 of the amicus brief.

They said this speech is germane to itself.

David H. Souter:

Well, hurrah.

Laurence H. Tribe:

It seems to me that tautology is everybody’s friend except the friend of the First Amendment, and I think with that I would close.

William H. Rehnquist:

Thank you, Mr. Tribe.

Ms. McDowell, you have four minutes remaining.

Barbara B. McDowell:

I did want to correct the suggestion that, as Mr. Tribe put it, the Secretary of Agriculture does not have general censorial power over the speech of the Mushroom Council.

Indeed, she does.

It’s inherent in 7 USC 6104 (D)(3), no plan or project of promotion, research, consumer information or industry information or budget shall be implemented prior to its approval by the Secretary.

Indeed, I’m informed by the Department of Agriculture that secretaries of agriculture have censored speech of agricultural groups such as this one on grounds of taste as well as on grounds of lack of conformity with the statute and regulations.

Mr. Tribe referred to the theory that the Government should not be buttoning a person’s lip or forcing them to speak.

This program does neither for the reasons recognized in Wileman Brothers.

Respondent is not required to engage in any speech nor is respondent’s own speech censored in any manner by the Mushroom Act.

Barbara B. McDowell:

The mushroom producers such as respondent are merely required to contribute to an economic program to promote their product.

Sometimes perhaps, as this Court has recognized, money can be speech, but here it’s just money.

Thank you.

William H. Rehnquist:

Thank you, Ms. McDowell, the case is submitted.