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THE PROBLEM WITH SETTING SPECIAL RULES FOR "COMMERCIAL" SPEECH: An Upcoming Supreme Court Argument Highlights The Need For First Amendment Protections For All Speech

Monday, Apr. 02, 2001

Money is often the handmaiden of speech, as anyone who has written for a living, had a paper route, or contributed to a cause can tell you. Without money, it's difficult to make the time to speak or write at length, let alone to disseminate and publicize one's speech widely enough that it will be listened to. Conversely, speech is increasingly used to sell — whether it sells a viewpoint, a political candidate, or an actual product.


The reason for the current double standard is that the Court sees "political" speech as being at the core of the First Amendment. Protecting such speech, according to the Court, is the Amendment's very justification for existing. In contrast, "commercial" speech, in the Court eyes, is at the First Amendment's periphery, and thus receives comparatively little protection.

The lax standard applicable to commercial speech explains why, for example, the Federal Trade Commission, which regulates advertising, is not a constant First Amendment battlefield. The high standards applicable to pure speech, in contrast, provides the ACLU with some strong ammunition, as long as it picks its battles on political and cultural, and not commercial, turf.

Because of the inexorable connection between speech and money, however, the Court's efforts to keep these standards separate are doomed to fail. Eventually, the distinction will collapse, and a single, higher standard will be imposed by the Court for all speech — commercial, political, and artistic alike.

Indeed, the modern trend among the Court's case is to elide the distinction, providing more and more protection for commercial speech. In many cases, the distinction has proved a creature more of form than of function, more paper than reality — as First Amendment rights have been recognized even in the commercial sphere.

An important commercial speech case that the Supreme Court will hear this month, United States v. United Foods, Inc., will help determine whether or not the trend of recognizing First Amendment rights in the commercial context will continue, or whether the Court will allow more regulation to occur because advertising, not campaigning, is at issue.

Mushroom Wars

The United Foods case arose when a maverick mushroom producer refused to contribute funds towards advertisements for the mushroom industry, despite the fact that a statute required it to do so. In support of its refusal to pay, the producer has argued that the statute violates its First Amendment rights, and therefore should be invalidated.

The government, however, claims the statute, and its mandatory assessment of funds from all industry members, is necessary to avoid some companies becoming "free riders" on the commercial efforts of others.

But the maverick mushroom producer who refused to pay its assessment claims that it is no free rider, but, rather, a conscientious objector. The producer says it does not want to contribute to the industry-wide advertising campaign because — according to the Sixth Circuit Court of Appeals' summary of its arguments — it claims that "other mushroom producers shape the content of the advertising to its disadvantage."

The Sixth Circuit's Ruling That The First Amendment Was Violated

Were the mushroom producer's First Amendment rights indeed violated by the mandatory assessment of funds, even though the speech at issue is an advertisement, and therefore commercial? The Sixth Circuit held that the answer is a resounding yes.

Granted, a 1997 Supreme Court case, Glickman v. Wileman Bros. & Elliott, Inc., had allowed a similar assessment to be made in the highly regulated peach and nectarine industry, rejecting a similar First Amendment claim. But the Sixth Circuit held that the "free market" mushroom industry was critically different and that there, the First Amendment still rules.

In the mushroom industry, the Sixth Circuit held, companies did not exchange their free speech rights for special, government-granted market power, in the way peach and nectarine companies had. Thus, Glickman, according to the Sixth Circuit, did not apply — and First Amendment rights against compelled speech were properly invoked by the maverick mushroom producer.

Schoolchildren could not be forced to say the pledge of allegiance in West Virginia v. Barnette, and newspapers could not be forced to run political candidates' replies to their editorials in Miami Herald v. Tornillo, the Sixth Circuit pointed out. And it held, based on the same principle, that mushroom producers cannot be compelled to fund an ad campaign with which they wholeheartedly disagree.

Consequences of Affirmation or Reversal of the Sixth Circuit's Ruling

The Sixth Circuit's opinion — authored by the whip-smart Judge Gilbert Merritt, the best thing to come out of Nashville since country music — did give a nod to the commercial speech/pure speech distinction. But it also made a contribution to the abolition of that very distinction.

Thus, the Sixth Circuit's decision, if upheld by the Supreme Court, could be important quite significant. Broadly interpreted, the decision could mean that in all but the most highly regulated industries, commercial speakers enjoy First Amendment rights of the same kind that political and cultural speakers enjoy. That would be another step in the continuing trend of destroying the distinction between the standard that govern political speech, and those that govern commercial speech.

The Government's Arguments

In its brief to the Supreme Court, the government dodges the basic issue of why rights against compelled speech do not apply with full force in the "commercial speech" context. Indeed, it makes a number of unpersuasive arguments suggesting that no compelled speech issue is even presented, or that if one is presented, it is trivial and dismissable.

More specifically, the government implausibly claims that ads purporting to speak for the mushroom industry are "government speech," not the mushroom industry's speech. And it asserts that since mushroom producers can speak freely in other advertisements, it is fine that they are compelled to fund advertisements with which they disagree. But that's like saying that it's not offensive to be forced to pray in school because you don't have to pray at home.

The government also suggests the compelled speech issue is trivial because the producers need not "publicly associate" themselves with the speech, because the speech is not "political," and because the speech is not "ideological." But again, these are all dodges. Speech does not have to be political or ideological to be protected by the First Amendment, and one does not have to be publicly associated with speech to have one's rights violated when one is forced to fund it.

The truth is that the commercial speech issue in this case is both real and important. As such, it should be confronted by the Court head on; the Court should not accept the government's invitations to duck the issue.

Why Commercial Speech Matters

Advertising controversies may seem humdrum or trivial — and that may be the root of the Court's decision to afford commercial speech less protection. (Other reasons may include the need to protect the public from defective products, and overblown hype). However, when one considers the way some social controversies are fought out through advertising, the importance of commercial speech is highlighted.

For example, the tobacco industry's anti-youth-smoking campaigns are an obvious attempt to rehabilitate the industry in the public's eyes — but what if the political climate were different, and an anti-youth-smoking cigarette company were forced to contribute to pro-youth smoking advertisements? Certainly that would be objectionable.

Consider, too, the recording industry. What if every record company were required to contribute to anti-Napster ads — even those that have chosen to partner with Napster? Certainly that would be objectionable, too.

Besides, until all newspapers are sold free, television shows utterly eliminate advertising, movies forgo previews and product placements — and pigs fly — we should admit that much of the speech we listen to is commercial speech. It is no less deserving of First Amendment protection for that reason — a truth the Court often implicitly honors, but should uniformly honor, and expressly admit.

Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.

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