The End of Compelled Contributions for Subsidized Advertising?
Schoenhard, Paul M., Harvard Journal of Law & Public Policy
THE END OF COMPELLED CONTRIBUTIONS FOR SUBSIDIZED ADVERTISING?: United States v. United Foods, 533 U.S. 405 (2001).
Until the Supreme Court's opinion in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., (1) commercial speech was not treated as a distinct category within First Amendment free speech jurisprudence. (2) That commercial speech should be granted lesser protection is a murky concept, supported by a tenuous balancing act between public and private interests. The marketing of goods produced in regulated industries is a prime breeding ground for this clash of public interests (the government's regulation) and private interests (freedom of speech and action). When the federal or state government thus compels contributions for subsidized industry-wide advertising, the result is complaints of forced commercial speech in contravention of the First Amendment. (3)
Seemingly, this issue was laid to rest in Glickman v. Wileman Brothers & Elliot, Inc., (4) in which a divided Supreme Court held that compelled contributions of this sort do not violate the Constitution? Last year, however, only four years after Glickman, in United States v. United Foods, (6) the Court held that in an otherwise unregulated industry, compelled contributions for subsidized advertising are unconstitutional. (7) Despite this apparent departure, rather than overturn their decision in Glickman, the Court chose to distinguish Glickman and cabin its earlier holding. (8) As a result, instead of clarifying or broadening the scope of protection for commercial speech under the First Amendment, United Foods further clouds the waters of constitutional law.
II. A BRIEF REVIEW OF GLICKMAN
Four years ago, in a case factually similar to United Foods, the Supreme Court decided that no First Amendment issues were raised in Glickman v. Wileman Bros. & Elliot, Inc. (9) Glickman involved a First Amendment challenge to compelled contributions for generic advertising by California fruit growers. (10) Writing for the Court, Justice Stevens determined that "criticisms of generic advertising provide no basis for concluding that factually accurate advertising constitutes an abridgement of anybody's right to speak freely." (11) Because of the close connection between the legal questions addressed in Glickman and United Foods, it will be useful to review the Glickman Court's arguments.
Justice Stevens posited the legal question in Glickman as "whether being compelled to fund this [collectivized] advertising raises a First Amendment issue for us to resolve, or rather is simply a question of economic policy for Congress and the Executive to resolve." (12) Already, this formulation of the question indicated the Court's conclusion that in certain contexts commercial speech receives no consideration under the First Amendment. With this mentality, it was easy for Justice Stevens to restrict the precedential value of the Court's earlier commercial speech cases to their specific fact patterns. Granting the government's regulatory scheme a presumption of validity, Justice Stevens argued:
First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views. (13)
Justice Stevens used these distinctions to distinguish Glickman from the Court's previous First Amendment decisions. (14) In particular, the Court considered the precedent set in Abood v. Detroit Board of Education, (15) a political speech case in which the Court invalidated a union requirement that teachers subsidize speech with which they disagreed. (16) Referring again to the generic nature of the collectivized advertising implicated in Glickman, however, Justice Stevens concluded that "[n]either the fact that respondents may prefer to foster that message independently in order to promote and distinguish their own products, nor the fact that they think more or less money should be spent fostering it, makes this case comparable to those in which an objection rested on political or ideological disagreement with the content of the message. …