Commercial speech, usually defined as speech that does no more than propose a commercial transaction, is protected by the First Amendment.
The Mushroom Promotion, Research, and Consumer Information Act mandated that fresh mushroom handlers pay assessments used primarily to fund advertisements promoting mushroom sales. Respondent United Foods, Inc., a large agricultural enterprise based in Tennessee, refused to pay the assessment, claiming that it violated the First Amendment. Consequently, United Foods, Inc. filed a petition challenging the assessment with the Secretary of Agriculture, and the United States filed an enforcement action in the District Court. After the administrative appeal was denied, United Foods, Inc. sought review in the District Court, which consolidated the two cases. In granting the Government summary judgment, the court found dispositive the decision in Glickman v. Wileman Brothers & Elliott, Inc., that the First Amendment was not violated when agricultural marketing orders, as part of a larger regulatory marketing scheme, required producers of California tree fruit to pay assessments for product advertising. The Sixth Circuit reversed, holding that Glickman did not control because the mandated payments in this case were not part of a comprehensive statutory agricultural marketing program.
Was the assessment requirement imposed under The Mushroom Promotion, Research, and Consumer Information Act violative of the First Amendment?
The assessment of the fresh mushroom handler under the Mushroom Promotion, Research, and Consumer Information Act to fund generic advertisements that promoted mushroom sales violated the First Amendment guarantee of freedom of speech. In the case at bar, the Court noted that United Foods, Inc. wanted to convey the message that its brand of mushrooms is superior to those grown by other producers, thus, it objected to being charged for a message which seemed to be favored by a majority of producers. The message was that mushrooms were worth consuming whether or not they are branded. The Court averred 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; and there is no apparent principle which distinguishes out of hand minor debates about whether a branded mushroom is better than just any mushroom. As a consequence, the compelled funding for the advertising must pass First Amendment scrutiny.