In United States v. United Foods, Inc., 533 U.S. 405 (2001), a compelled advertising case, the Supreme Court ruled that mushroom producers could not be forced to subsidize generic advertising for mushrooms.
The Court reasoned that “First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors.”
Tennessee company challenges law requiring subsidies for generic mushroom advertising
The federal government, pursuant to the Mushroom Promotion, Research and Consumer Information Act, required mushroom producers to subsidize generic ads for mushrooms.
United Foods, Inc., a Tennessee-based mushroom producer, objected to the forced advertising subsidies, arguing that such advertising conflicted with its message that its own mushrooms were superior to others. A district court, following the lead of an administrative law judge, had rejected this plea, but the Sixth Circuit Court of Appeals had ruled in favor of United Foods, Inc.
Supreme Court finds law is clear case of compelled speech not allowed by First Amendment
In affirming the circuit court ruling, the Supreme Court distinguished the case of mushroom producer United Foods from its 1997 decision in Glickman v. Wileman Brothers & Elliott, Inc., in which the Supreme Court upheld a series of agricultural marketing orders for California tree fruits that included assessments for generic advertising because they determined that the program was part of a larger plan of collectivized economic regulation, not speech compulsion.
In United Foods, the Court noted that in Glickman “the mandated assessments for speech were ancillary to a more comprehensive program restricting marketing autonomy.” In United Foods, according to Justice Anthony M. Kennedy, who wrote for the majority, “the advertising itself, far from being ancillary, is the principal object of the regulatory scheme.” Kennedy viewed the forced advertising program for mushroom producers as a clear case of compelling speech.
The federal government tried to argue that the forced mushroom advertising was a form of government speech immune from First Amendment review. However, the Court rejected this argument because it was not advanced in the lower courts. The government later successfully advanced the government-speech argument in the beef advertising decision Johanns v. Livestock Marketing Association (2005).
Justices John Paul Stevens and Clarence Thomas wrote separate concurring opinions, whereas Justice Steven G. Breyer — joined by Justices Sandra Day O’Connor and Ruth Bader Ginsburg — dissented. Breyer viewed the mushroom case as indistinguishable from Glickman.
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.