No. 00-276 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA AND 

UNITED STATES DEPARTMENT OF AGRICULTURE, 
PETITIONERS 

v. 

UNITED FOODS, INC. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

BRIEF FOR THE PETITIONERS 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BARBARA MCDOWELL 

Assistant to the Solicitor 

General 

DOUGLAS N. LETTER 
AUGUST E. FLENTJE 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the assessments imposed pursuant to the 
Mushroom Promotion, Research, and Consumer Infor- 
mation Act of 1990, 7 U.S.C. 6101 et seq., on members of 
the mushroom industry for advertising programs de- 
signed to support the industry violate the First Amend- 
ment. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 2 

Argument: 

I. The generic advertising program for mush- 
rooms does not violate the First Amendment 

under this Court’s decision in Wileman 

Brothers .......................................................................... 14 

A. For each of the three reasons identified 

by the Court in Wileman Brothers, the 

generic advertising program here is 

unlike laws that have been held to abridge 

the freedom of speech ........................................... 
14 

B. The court of appeals erred in distinguishing 

this case from Wileman Brothers on the 

ground that mushrooms are not as exten- 
sively regulated as California tree fruits .......... 

21 

II. The generic advertising program for mush- 
rooms does not violate the First Amendment 

for the independent reason that it involves 

only government speech .............................................. 

32 

Conclusion ....................................................................................... 45 

TABLE OF AUTHORITIES 

Cases: 

Abood v. Detroit Bd. of Educ., 431 U.S. 209 

(1977) .................................................... 

15, 16, 26, 27, 30, 34, 40 

Block v. Meese, 793 F.2d 1303 (D.C. Cir.), cert. 

denied, 478 U.S. 1021 (1986) ................................................ 

34 

Board of Regents of the Univ. of Wis. Sys. v. South- 
worth, 120 S. Ct. 1346 (2000) ......................... 14, 33, 40, 42, 43 

(III) 

IV 

Cases—Continued: Page 

Central Hudson Gas & Elec. Co. v. Public Serv. 

Comm’n, 447 U.S. 557 (1980) ............................................... 

30 

Consolidated Edison Co. v. Public Serv. Comm’n, 

447 U.S. 530 (1980) ................................................................ 

30 

Cox v. New Hampshire, 312 U.S. 569 (1941) ..................... 

43 

Currin v. Wallace, 306 U.S. 1 (1939) ................................... 

35 

Flamer v. Delaware, 68 F.3d 736 (3d Cir. 1995), 

cert. denied, 516 U.S. 1088 (1996) ................................... 

16-17 

Gerawan Farming, Inc. v. Veneman, 85 Cal. Rptr. 2d 

598 (Ct. App. 1999), aff ’d in part and vacated in part 

sub nom. Gerawan Farming., Inc. v. Lyons, 12 P.3d 

70 (Cal. 2000) ...................................................................... 

23, 27 

Glickman v. Wileman Brothers & Elliott, Inc., 

521 U.S. 457 (1997) .......................................................... 

passim 

Kadrmas v. Dickinson Pub. Schs., 487 U.S. 

450 (1988) ................................................................................. 

43 

Keller v. State Bar, 767 P.2d 1020 (Cal. 1989), 

rev’d, 496 U.S. 1 (1990) .................................. 

16, 27, 30, 33, 40 

Lathrop v. Donohue, 367 U.S. 820 (1961) ........................... 

33 

Lebron v. National R.R. Passenger Corp., 513 U.S. 

374 (1995) ................................................... 

13, 32, 34, 35, 36, 40 

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 

(1991) .................................................................................... 

10, 16 

Matsui Nursery, Inc. v. California Cut Flower 

Comm’n, No. S-96-1092 EJG-GGH (E.D. Cal. Aug. 

6, 1997) ..................................................................................... 

9 

National Endowment for the Arts v. Finley, 

524 U.S. 569 (1999) ................................................................ 

34 

Nature’s Dairy v. Glickman, No. 98-1073, 1999 

WL 137631 (6th Cir. Mar. 2, 1999) (173 F.3d 429), 

cert. denied, 528 U.S. 1074 (2000) ....................................... 

31 

Rosenberger v. Rector & Visitors of Univ. of Va., 

515 U.S. 819 (1995) ............................................................ 

33, 44 

United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), 

cert. denied, 498 U.S. 1094 (1990) ................................... 23, 24 

V 

Cases—Continued: Page 

United States v. Rock Royal Co-op., Inc., 307 U.S. 

533 (1939) ................................................................................. 

35 

United States v. Sperry Corp., 493 U.S. 52 (1989) ............ 

42 

United States Postal Serv. v. Council of Green- 
burgh Civic Ass’ns, 453 U.S. 114 (1981) ............................ 

43 

Victor v. Nebraska, 511 U.S. 1 (1994) ................................. 

16 

Constitution, statutes and regulations: 

U.S. Const. Amend. I ....................................................... 

passim 

Agricultural Marketing Agreement Act of 1937, 

7 U.S.C. 601 et seq. .......................................... 

14, 20, 25, 28, 29 

7 U.S.C. 608c(2) ................................................................. 

29 

Beef Promotion and Research Act of 1985, 7 U.S.C. 2901 

et seq. .............................................................................. 

23, 24, 31 

7 U.S.C. 2904(4)(B) ........................................................... 

23 

Federal Agricultural Improvement and Reform Act of 

1996, Pub. L. No. 104-127, 110 Stat. 888 ......... 

7, 20, 25, 36, 39 

Title V, Subtitle A, 110 Stat. 1029 (7 U.S.C. 7401): 

7 U.S.C. 7401(a) (Supp. IV 1998) 

25 

7 U.S.C. 7401(a)(1) (Supp. IV 1998) ......................... 

25 

7 U.S.C. 7401(a)(10) (Supp. IV 1998) ............. 

7, 20, 25, 

36, 39, 42 

7 U.S.C. 7401(b)(1) (Supp. IV 1998) .... 
7, 20, 25, 35, 39 

7 U.S.C. 7401(b)(2) (Supp. IV 1998) ............ 

7, 25, 39, 42 

7 U.S.C. 7401(b)(4) (Supp. IV 1998) ......................... 

8 

7 U.S.C. 7401(b)(7) (Supp. IV 1998) ......................... 

7 

7 U.S.C. 7401(b)(8) (Supp. IV 1998) ................. 

7, 36, 39 

7 U.S.C. 7401(b)(10) (Supp. IV 1998) ....................... 

7 

7 U.S.C. 7401(b)(11) (Supp. IV 1998) ....................... 

39 

Food, Agriculture, Conservation, and Trade Act of 

1990, Pub. L. No. 101-624, 104 Stat. 3359 ........................ 

4, 41 

Title XIX, §§ 1901-1998, 104 Stat. 3838 ........................ 

5 

Mushroom Promotion, Research, and Consumer Infor- 
mation Act of 1990, Pub. L. No. 101-624, Title XIX, 

Subtitle B, §§ 1921-1933, 104 Stat. 3854 (7 U.S.C. 

6101 et seq.) ....................................................................... passim 

VI 

Statutes and regulations—Continued: 

Page 

7 U.S.C. 6101(a)(1)-(7) ...................................................... 

2 

7 U.S.C. 6101(a)(5) ............................................................ 

3, 37 

7 U.S.C. 6101(a)(6) .......................................................... 

3, 20 

7 U.S.C. 6101(b) .............................................. 

3, 11, 18, 20, 35 

7 U.S.C. 6103 ...................................................................... 

35 

7 U.S.C. 6104(b) ............................................................... 

3, 35 

7 U.S.C. 6104(b)(1) ............................................................ 

3 

7 U.S.C. 6104(b)(1)(B) ...................................................... 

36 

7 U.S.C. 6104(b)(2) ............................................................ 

3 

7 U.S.C. 6104(b)(2)(G) ...................................................... 

36 

7 U.S.C. 6104(b)(3)(A) ...................................................... 

36 

7 U.S.C. 6104(c) ............................................................... 

3, 37 

7 U.S.C. 6104(c)(4) ............................................ 

3-4, 18, 35, 37 

7 U.S.C. 6104(c)(5) ..................................................... 

4, 18, 29 

7 U.S.C. 6104(d)(3) .................................................... 

4, 38, 41 

7 U.S.C. 6104(g)(1)(A) ...................................................... 

4 

7 U.S.C. 6104(g)(1)(B) ...................................................... 

4 

7 U.S.C. 6104(g)(2) ............................................................ 

4 

7 U.S.C. 6104(g)(2)(D) ...................................................... 

4 

7 U.S.C. 6104(g)(3) ............................................................ 

18 

7 U.S.C. 6104(h) .................................................... 

4, 18, 37, 41 

7 U.S.C. 6105(a) ............................................................. 

35, 41 

7 U.S.C. 6105(a)(1) ............................................................ 

6 

7 U.S.C. 6105(b)(1)(A) .................................................... 

6, 42 

7 U.S.C. 6105(b)(1)(B) .................................................... 

6, 42 

7 U.S.C. 6106(a) ................................................................. 

39 

7 U.S.C. 6106(a)(1)(A) ...................................................... 

8 

7 U.S.C. 6106(a)(2) ............................................................ 

39 

7 U.S.C. 6106(b) ................................................................. 

39 

7 U.S.C. 6107(a) ........................................................... 

4, 8, 39 

7 U.S.C. 6107(b) ................................................................. 

39 

7 U.S.C. 6107(c) ................................................................. 

39 

7 U.S.C. 6107(d)-(f) ........................................................... 

39 

7 U.S.C. 6110 .................................................................... 

7, 38 

7 U.S.C. 2202 .............................................................................. 
4 

7 U.S.C. 4501 et seq. .................................................................. 31 

VII 

Statutes and regulations—Continued: 

Page 

7 U.S.C. 6401 et seq. .................................................................. 
31 

7 C.F.R.: 

Pt. 916 (1997) .......................................................................... 

28 

Pt. 917 (1997) .......................................................................... 
28 

Pt. 1209 .............................................................................. 
passim 

Section 1209.34(e)(1) ......................................................... 
37 

Section 1209.35(c) .............................................................. 
37 

Sections 1209.38-1209.39 .................................................. 
37 

Section 1209.40 .................................................................. 
18 

Section 1209.40(a)(1) ......................................................... 
37 

Section 1209.40(d) ............................................................. 
37 

Section 1209.51(b) ............................................................. 
4 

Section 1209.70 .................................................................. 
38 

Section 1209.75 .................................................................. 
38 

Miscellaneous: 

Agricultural Mktg. Serv., United States Dep’t of 

Agric.: 

Guidelines for AMS Oversight of Commodity 

Research and Promotion Programs: 
(1994) ........................................................................ 38 

64 Fed. Reg. 70,682 (1999) ................................... 

38 

Mushroom Indus. Votes to Continue 

Promotion Program, Release No. 
AMS-071-98 (Mar. 20, 1998) ...................................... 

6 
William Claiborne, Hog Producers Defeat “Pork 

Checkoff,” Wash. Post, Jan. 16, 2001 ................................ 

42 

136 Cong. Rec. (1990): 

p. 19,258 ........................................................................... 41 

p. 19,511 ........................................................................... 

4, 5 

pp. 19,511-19,512 ............................................................... 
5 

pp. 19,511-19,513 ............................................................... 
41 

p. 19,512 ........................................................................... 5 

p. 19,513 ..................................................................... 

5, 6, 41 

p. 19,614 ................................................................ 
5, 6, 26, 41 

Laurence H. Tribe, American Constitutional Law 
(2d ed. 1988) ............................................................................ 44 

In the Supreme Court of the United States 

No. 00-276 

UNITED STATES OF AMERICA AND 

UNITED STATES DEPARTMENT OF AGRICULTURE, 
PETITIONERS 

v. 

UNITED FOODS, INC. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

BRIEF FOR THE PETITIONERS 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-9a) 
is reported at 197 F.3d 221. The opinion of the district 
court (Pet. App. 10a-21a) is not reported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
November 23, 1999. A petition for rehearing was 
denied on March 23, 2000 (Pet. App. 22a-23a). On June 
9, 2000, Justice Stevens extended the time for filing a 
petition for a writ of certiorari to and including July 21, 
2000, and, on July 13, 2000, Justice Stevens further 
extended that time to and including August 18, 2000. 
The petition for a writ of certiorari was filed on August 

(1) 

2 

18, 2000, and was granted on November 27, 2000. This 
Court has jurisdiction under 28 U.S.C. 1254(1). 

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED 

1. The First Amendment to the United States Con- 
stitution provides in pertinent part: 

Congress shall make no law * * * abridging the 
freedom of speech * * *. 

2. The relevant provisions of the Mushroom Pro- 
motion, Research, and Consumer Information Act of 
1990, Subtitle B of Title XIX of the Food, Agriculture, 
Conservation, and Trade Act of 1990, Pub. L. No. 101- 
624, §§ 1921-1933, 104 Stat. 3854-3865 (7 U.S.C. 6101 et 
seq.) are reproduced at Pet. App. 24a-28a. 

STATEMENT 

This case concerns the constitutionality of a generic 
advertising program for fresh mushrooms that is simi- 
lar to the generic advertising programs for California 
tree fruits upheld in Glickman v. Wileman Brothers & 
Elliott, Inc., 521 U.S. 457 (1997). The court of appeals 
held, however, that the mushroom advertising program 
violates the First Amendment, distinguishing Wileman 
Brothers on the ground that mushrooms are not subject 
to federal regulation that is as extensive as that appli- 
cable to California tree fruits. Pet. App. 1a-9a. 

1. a. Congress enacted the Mushroom Promotion, 
Research, and Consumer Information Act of 1990, 
7 U.S.C. 6101 et seq. (Mushroom Act), after making a 
series of findings set forth in the Act itself. See 
7 U.S.C. 6101(a)(1)-(7). Of particular relevance to this 
case, Congress found that “the maintenance and expan- 
sion of existing markets and uses” for mushrooms are 
“vital to the welfare of producers and those concerned 

3 

with marketing and using mushrooms, as well as to the 
agricultural economy of the Nation.” 7 U.S.C. 
6101(a)(5). Congress further found that “the coopera- 
tive development, financing, and implementation of a 
coordinated program of mushroom promotion, research, 
and consumer information are necessary to maintain 
and expand existing markets for mushrooms.” 7 U.S.C. 
6101(a)(6). The Mushroom Act therefore declares it to 
be “the policy of Congress that it is in the public inter- 
est” to establish an orderly program for developing, 
financing through adequate assessments on mushroom 
producers and importers, and carrying out an “effec- 
tive, continuous, and coordinated program of promo- 
tion, research, and consumer and industry information” 
designed to “strengthen the mushroom industry’s posi- 
tion in the marketplace,” “maintain and expand existing 
markets and uses for mushrooms,” and “develop new 
markets and uses for mushrooms.” 7 U.S.C. 6101(b). 

The Mushroom Act authorizes the Secretary of Agri- 
culture to issue an order establishing a Mushroom 
Council and vesting it with authority to implement the 
statutory policy. See 7 U.S.C. 6104(b) and (c).1 In 
particular, the Act provides that the powers and duties 
of the Mushroom Council shall include “propos[ing], 
receiv[ing], evaluat[ing], approv[ing] and submit[ting] 
to the Secretary for approval * * * budgets, plans, 
and projects of mushroom promotion, research, con- 
sumer information, and industry information.” 7 U.S.C. 

1 The Mushroom Act provides that the Mushroom Council is to 
be composed of between four and nine members, all of whom are to 
be selected by the Secretary from among persons nominated by 
mushroom producers and importers. 7 U.S.C. 6104(b)(1) and (2). 

4 

6104(c)(4).2 The Act specifies that the Council may not 
implement any such plan, project, or budget unless it is 
approved by the Secretary. 7 U.S.C. 6104(d)(3). 

The Mushroom Act provides that the activities of the 
Mushroom Council are to be funded through assess- 
ments collected from producers and importers of 
mushrooms for the domestic fresh market. 7 U.S.C. 
6104(g)(1)(A) and (B).3 The rate of assessment is deter- 
mined by the Mushroom Council subject to approval by 
the Secretary. 7 U.S.C. 6104(g)(2); 7 C.F.R. 1209.51(b). 
The assessments cannot exceed certain ceilings set by 
the Act; the currently applicable ceiling is one cent per 
pound of mushrooms. 7 U.S.C. 6104(g)(2)(D). The Act 
expressly prohibits the use of the assessments “in any 
manner for the purpose of influencing legislation or 
governmental action or policy.” 7 U.S.C. 6104(h).4 

b. The Mushroom Act was included in the Food, 
Agriculture, Conservation, and Trade Act of 1990, Pub. 
L. No. 101-624, 104 Stat. 3359, by means of a Senate 
floor amendment authorizing similar promotion pro- 
grams for a number of agricultural commodities. See 
136 Cong. Rec. 19,511 (1990) (statement of Sen. Fowler, 
sponsor of the amendment) (“The amendment author- 
izes new programs for soybeans, fresh mushrooms, 
limes, and pecans. It makes important modifications to 

2 The Mushroom Act also provides that the Mushroom Order 
shall vest the Mushroom Council with the authority “to develop 
and propose to the Secretary voluntary quality and grade stan- 
dards for mushrooms.” 7 U.S.C. 6104(c)(5). 

3 The amount of the assessment is based on the quantity of 
mushrooms produced or imported. 7 U.S.C. 6104(g)(2). 

4 The Mushroom Act vests the federal district courts with 
“jurisdiction specifically to enforce, and to prevent and restrain 
any person from violating, any order or regulation made” under 
the Act. 7 U.S.C. 6107(a). 

5 

existing programs for cotton, potatoes, honey, and 
Vidalia onions.”). See Pub. L. No. 101-624, Title XIX, 
§§ 1901-1998, 104 Stat. 3838-3914. 

The congressional supporters of the amendment 
characterized such programs as “self-help” measures 
that are “funded and administered entirely by produc- 
ers with oversight by the Secretary of Agriculture.” 
136 Cong. Rec. at 19,511 (statement of Sen. Fowler); 
accord id. at 19,513 (statement of Sen. Cochran). They 
recognized that such programs, by enabling producers 
“to unite on a national level to conduct effective mar- 
keting and research activities for their products,” had 
“proven extremely successful in maintaining and ex- 
panding existing markets, and developing new markets 
and uses for our commodities.” Id. at 19,511 (statement 
of Sen. Fowler); see also id. at 19,512 (statement of Sen. 
McCain) (noting that such programs “have been very 
successful in assisting our farmers and ranchers in pro- 
moting the benefits of their products”). Congressional 
supporters also noted that the effectiveness of such 
programs could be undermined if all but the smallest 
producers of a commodity were not required to pay 
their “fair share.” Id. at 19,512 (statement of Sen. 
McCain); accord id. at 19,511-19,512 (statement of Sen. 
DeConcini). 

Senator Heinz, in specifically addressing the mush- 
room program, emphasized that such programs reflect 
“an attempt to design a marketing order that respects 
our tradition of free trade,” as opposed to marketing 
orders that, for example, engage in “the artificial 
bolstering of indigenous industries by exclusionary 
measures.” 136 Cong. Rec. at 19,614. “Unlike other 
proposals,” he explained, a generic promotion program 
“does not seek to restrict a given market to the unfair 
advantage of certain U.S. businesses, but rather to 

6 

enlarge that market, allowing everyone to benefit.” 
Ibid.5 

c. The Secretary of Agriculture issued an order, 
pursuant to the Mushroom Act, that became effective in 
1993. See 7 C.F.R. Pt. 1209 (Mushroom Order). Before 
the Mushroom Order took effect, the Secretary sub- 
mitted the Order to a referendum of mushroom pro- 
ducers and importers, as required by the Act. 7 U.S.C. 
6105(a)(1). 

The Mushroom Act required the Secretary to con- 
duct a second such referendum after the Mushroom 
Order had been in effect for five years. 7 U.S.C. 
6105(b)(1)(A). In that referendum, which was con- 
ducted in 1998, a substantial majority of mushroom 
producers and importers voted to retain the Order. 
Pet. App. 15a.6 The Secretary is authorized to conduct 
additional referenda on the Order if 30% of mushroom 
producers and importers request one. 7 U.S.C. 
6105(b)(1)(B). In addition, if the Secretary at any time 
“finds that the order * * * obstructs or does not tend 
to effectuate the declared policy” of the Act, the 

5 Senator Specter, also addressing the provisions of the amend- 
ment authorizing a mushroom promotion program, noted that “this 
amendment is supported by the overwhelming majority of the 
fresh mushroom industry.” 136 Cong. Rec. at 19,513. Senator 
Heinz identified respondent, which he described as “a food con- 
glomerate based in Tennessee,” as “[t]he chief opponent” of the 
amendment. Id. at 19,614. 

6 In 1998, 80% of those voting in the referendum, representing 
70% of the volume of mushrooms produced by all those who voted, 
favored the continuation of the Mushroom Order. Agricultural 
Mktg. Serv., United States Dep’t of Agric., Mushroom Indus. 
Votes to Continue Promotion Program, Release No. AMS-071-98 
(Mar. 20, 1998) (J.A. 79-80). 

7 

Secretary is required to terminate or suspend the 
Order. 7 U.S.C. 6110. 

d. Congress subsequently enacted the Federal Agri- 
cultural Improvement and Reform Act of 1996 (FAIR 
Act), Pub. L. No. 104-127, 110 Stat. 888. That Act, inter 
alia, elaborates on the findings made by Congress in 
enacting other statutes, specifically including the 
Mushroom Act, that authorize generic commodity 
promotion programs. See 7 U.S.C. 7401(a)(10).7 In the 
FAIR Act, Congress confirmed that such programs are, 
as reflected in the provisions of the Mushroom Act, 
industry “ ‘self-help’ mechanisms” subject to the 
“supervision and oversight of the Secretary of Agricul- 
ture.” 7 U.S.C. 7401(b)(8); see also 7 U.S.C. 7401(b)(1) 
(describing such programs as “Government-super- 
vised”). Congress also declared in the FAIR Act that 
such programs are appropriately funded by producers 
and processors, “who most directly reap the benefits of 
the programs.” 7 U.S.C. 7401(b)(2). 

Congress found that such programs advance the 
interests of agricultural producers by “utilizing promo- 
tion methods and techniques that individual producers 
and processors typically are unable, or have no incen- 
tive, to employ.” 7 U.S.C. 7401(b)(7). In addition, Con- 
gress found that such programs are of “particular 
benefit to small producers,” who may “lack the re- 
sources or market power to advertise on their own” and 
may be “unable to benefit from the economies of scale 
available in promotion and advertising.” 7 U.S.C. 
7401(b)(10). Congress noted that the Mushroom Act 
and the other commodity promotion laws “were neither 
designed nor intended to prohibit or restrict, and the 

7 All citations of provisions of the FAIR Act are of 7 U.S.C. 
(Supp. IV 1998). 

8 

promotion programs established and funded pursuant 
to these laws do not prohibit or restrict, individual 
advertising or promotion of the covered commodities by 
any producer, processor, or group of producers or pro- 
cessors.” 7 U.S.C. 7401(b)(4). 

2. Respondent United Foods, Inc., a mushroom 
producer, has refused since 1996 to pay its assessments 
under the Mushroom Act and the Mushroom Order. 
See Pet. App. 15a. Instead, respondent filed a petition 
with the Secretary of Agriculture, pursuant to 7 U.S.C. 
6106(a)(1)(A), claiming that the Mushroom Act, the 
Mushroom Order, and the assessments imposed there- 
under violate the First Amendment. See J.A. 27. The 
United States then filed an action against respondent in 
the United States District Court for the Western Dis- 
trict of Tennessee, pursuant to 7 U.S.C. 6107(a), seek- 
ing to enforce the terms of the Mushroom Order and to 
require respondent to comply with it. J.A. 55-60. The 
two matters were stayed pending this Court’s resolu- 
tion of Wileman Brothers. Pet. App. 11a. 

After the decision in Wileman Brothers, the admin- 
istrative law judge assigned to respondent’s case dis- 
missed the petition. J.A. 27-31. The administrative law 
judge concluded that Wileman Brothers “is dispositive 
of the issues herein,” rejecting respondent’s attempt to 
distinguish Wileman Brothers on the ground that “the 
peach and nectarine marketing orders at issue there 
regulated other aspects of the market, and did not have 
promotion as their sole purpose.” J.A. 28. 

The Judicial Officer of the Department of Agriculture 
affirmed. J.A. 32-54. The Judicial Officer explained 
that the Mushroom Act and the Mushroom Order “have 
the very same three characteristics which the Court 
found dispositive of the First Amendment issue in 
[Wileman Brothers].” J.A. 43. Specifically, the Judicial 

9 

Officer explained, the Mushroom Act and the Mush- 
room Order do not prohibit respondent from communi- 
cating any message to any audience, do not compel 
respondent to speak or to be publicly associated with 
the Mushroom Council’s promotion program, and do not 
compel respondent to finance any political or ideological 
views. J.A. 43-46. 

Respondent then filed a complaint in district court, 
seeking review of the Judicial Officer’s decision. The 
district court consolidated that action with the United 
States’ enforcement action, and granted the United 
States’ motions for summary judgment. Pet. App. 10a- 
21a. The court held that Wileman Brothers “is clearly 
dispositive of [respondent’s] First Amendment chal- 
lenge to the [Mushroom Act] and the Order.” Id. at 18a. 
The court rejected respondent’s effort to distinguish 
Wileman Brothers on the ground that the mushroom 
industry is not as extensively regulated as the Califor- 
nia tree fruit industries. The court reasoned that 
Wileman Brothers “did not turn on the degree to which 
[the] State or Federal Government has otherwise dis- 
placed free market competition”; rather, the court 
understood Wileman Brothers as holding that “com- 
pelled participation in a generic advertising program is 
itself a form of economic regulation whose efficacy is to 
be judged by legislatures, Government officials and 
producers, and not by the Court.” Ibid. (quoting 
Matsui Nursery, Inc. v. California Cut Flower 
Comm’n, No. S-96-1092 EJG-GGH (E.D. Cal. Aug. 6, 
1997)). 

3. The United States Court of Appeals for the Sixth 
Circuit reversed. Pet. App. 1a-9a. The court concluded 
that the Mushroom Act and the Mushroom Order 
violate the First Amendment to the extent that they 
require mushroom producers and importers to pay an 

10 

assessment for a generic advertising program. Id. at 
8a. 

The court of appeals read Wileman Brothers as hold- 
ing that a generic advertising program funded by 
mandatory assessments must satisfy two conditions in 
order to withstand constitutional scrutiny: first, the 
advertising must be “germane[] to a valid, comprehen- 
sive, regulatory scheme,” and, second, the advertising 
must be “nonideological.” Pet. App. 6a. The panel 
noted that Wileman Brothers had emphasized that the 
generic advertising programs for California tree fruits 
possessed both characteristics—that is, the advertising 
programs were “part of a broader collective enterprise 
in which [the producers’] freedom to act independently 
is already constrained by the regulatory scheme” and 
were “not used to fund ideological activities.” Pet. App. 
5a-6a (quoting Wileman Bros., 521 U.S. at 469, 473). 

The court of appeals was of the view that mandatory 
advertising assessments are justified in an extensively 
regulated industry, but not otherwise, in order to pre- 
vent members of the industry from “tak[ing] advantage 
of their monopoly power resulting from regulation of 
price and supply without paying for whatever com- 
mercial benefits [they] receive at the hands of the gov- 
ernment.” Pet. App. 7a-8a. The court found support for 
such a “principle of reciprocity” in Lehnert v. Ferris 
Faculty Ass’n, 500 U.S. 507 (1991), which involved com- 
pelled contributions to a public-employee union in the 
context of an “agency-shop” arrangement. Pet. App. 
8a. 

The court of appeals then applied its two-part test to 
the generic advertising program established by the 
Mushroom Act and the Mushroom Order. Pet. App. 8a. 
The court did not suggest that the generic advertising 
program compels members of the mushroom industry 

11 

to fund ideological activities. But the court nonetheless 
concluded that, because the generic advertising pro- 
gram is not part of a comprehensive scheme of regula- 
tion of the mushroom industry, the program violates 
the First Amendment to the extent that it imposes 
assessments on members of the industry to fund the 
advertising. Ibid. 

SUMMARY OF ARGUMENT 

I. The generic advertising program established 
under the Mushroom Act and the Mushroom Order is 
fully consistent with the First Amendment under this 
Court’s decision in Glickman v. Wileman Brothers & 
Elliott, Inc., 521 U.S. 457 (1997). For the same three 
reasons that the Court identified with respect to the 
generic advertising programs for California tree fruits 
in Wileman Brothers, the generic advertising program 
for mushrooms is unlike laws that have been held to 
violate the freedom of speech protected by the First 
Amendment: It “impose[s] no restraint on the freedom 
of any producer to communicate any message to any 
audience”; it “do[es] not compel any person to engage in 
any actual or symbolic speech”; and it “do[es] not com- 
pel the producers to endorse or to finance any political 
or ideological views.” Id. at 469-470. Instead, like the 
peach, plum, and nectarine handlers in Wileman 
Brothers, respondent and other mushroom producers 
are merely required to share the costs of promotional 
activities that are non-ideological and “unquestionably 
germane to the purposes,” id. at 473, identified by 
Congress in the Mushroom Act, i.e., to maintain and 
expand the existing markets for their product and to 
create new markets and uses for that product, 7 U.S.C. 
6101(b). 

12 

The court of appeals erred in distinguishing this case 
from Wileman Brothers on the ground that mushrooms 
are not as extensively regulated as California peaches, 
plums, and nectarines. This Court’s opinion in Wile- 
man Brothers, while preliminarily noting the regula- 
tory context in which that case arose, did not rest its 
First Amendment analysis on the extent to which the 
California tree fruit industries were subject to other 
government regulation. Indeed, the Court explicitly 
granted certiorari in Wileman Brothers to resolve a 
circuit conflict with a case involving a generic advertis- 
ing program established under a statute that did not 
otherwise regulate the particular agricultural commod- 
ity involved. Wileman Brothers therefore is not appro- 
priately read as turning on whether Congress sought to 
strengthen a sector of the agricultural economy solely 
through a generic advertising program or, alterna- 
tively, through a generic advertising program combined 
with other regulations of price, quantity, or quality 
(only the last of which had actually been imposed, con- 
trary to the court of appeals’ assumption, on the Cali- 
fornia tree fruit industries in Wileman Brothers). 

Nor is there any First Amendment justification for 
such a distinction. The government’s purpose for 
adopting a generic advertising program—to stimulate 
sales of a commodity—is equally valid regardless of the 
extent (if any) to which the commodity may be subject 
to other regulation. So, too, the government’s choice to 
fund the program through mandatory assessments on 
members of the industry, in order to avoid the problem 
of “free riders” who would obtain the benefits of the 
program without sharing the costs, is equally valid 
whether or not those members also suffer the burdens, 
or enjoy the benefits, of other regulation. None of this 
Court’s First Amendment decisions supports the court 

13 

of appeals’ “principle of reciprocity” under which mem- 
bers of an industry may be required to finance a generic 
advertising program only as payment for “commercial 
benefits,” distinct from those provided by the advertis- 
ing program itself, that the members receive as a result 
of other government regulation. Pet. App. 7a-8a. 

II. There is an additional reason, independent of the 
Court’s decision in Wileman Brothers, to sustain the 
generic advertising program for mushrooms. The First 
Amendment does not constrain the government’s abil- 
ity to engage in speech of its own, whether the speech is 
funded from general tax revenues or from targeted ex- 
actions on those who benefit most from the speech. The 
Mushroom Council’s promotional activities, carried out 
pursuant to the Mushroom Act and the Mushroom Or- 
der, are properly viewed as government speech. Under 
the standard articulated by the Court in Lebron v. Na- 
tional Railroad Passenger Corp., 513 U.S. 374, 400 
(1995), the Mushroom Council is part of the government 
for First Amendment purposes. The Mushroom 
Council was established by Congress and the Secretary 
under a special law, it is designed to serve objectives of 
the government, and its members are appointed (and 
may be removed) by the Secretary of Agriculture. 
Moreover, the Mushroom Act and the Mushroom Order 
not only specify the sorts of speech in which the 
Mushroom Council may (and may not) engage, but also 
require that all plans, projects, and budgets of the 
Mushroom Council receive the advance approval of the 
Secretary. Accordingly, because the Mushroom 
Council, as part of the government, is simply engaging 
in expression of its own about mushrooms, the First 
Amendment is not implicated here, under the principle 
that “[t]he government, as a general rule, may support 
valid programs and policies by taxes or other exactions 

14 

binding on protesting parties” and, in so doing, may 
engage in “speech and other expression to advocate and 
defend its own policies.” Board of Regents of the Univ. 
of Wis. Sys. v. Southworth, 120 S. Ct. 1346, 1354 (2000). 

ARGUMENT 

I. THE GENERIC ADVERTISING PROGRAM FOR 
MUSHROOMS DOES NOT VIOLATE THE FIRST 
AMENDMENT UNDER THIS COURT’S DECISION 
IN WILEMAN BROTHERS 

A. For Each Of The Three Reasons Identified By The 

Court In Wileman Brothers, The Generic Advertising 

Program Here Is Unlike Laws That Have Been Held 

To Abridge The Freedom Of Speech 

1. In Glickman v. Wileman Brothers & Elliott, Inc., 
521 U.S. 457 (1997), this Court rejected a First Amend- 
ment challenge to the generic advertising programs for 
California peaches, plums, and nectarines authorized by 
the Agricultural Marketing Agreement Act of 1937 
(AMAA), 7 U.S.C. 601 et seq. Those generic advertising 
programs, like the generic advertising program for 
fresh mushrooms in this case, were funded by man- 
datory assessments imposed on producers or handlers 
of the commodities. The Court concluded that the 
generic advertising programs in Wileman Brothers 
were subject to scrutiny not under the “heightened 
standard appropriate for the review of First Amend- 
ment issues,” but instead under the more deferential 
standard “appropriate for the review of economic 
regulation.” 521 U.S. at 469. 

The Court’s analysis in Wileman Brothers turned on 
three vital distinctions between generic advertising 
programs for commercial products and laws that have 
been found to abridge the freedom of speech protected 
by the First Amendment: first, generic advertising 

15 

programs “impose no restraint on the freedom of any 
producer to communicate any message to any audi- 
ence”; second, generic advertising programs “do not 
compel any person to engage in any actual or symbolic 
speech”; and, third, generic advertising programs “do 
not compel the producers to endorse or to finance any 
political or ideological views.” Wileman Bros., 521 U.S. 
at 469-470; see also id. at 470-472. “Indeed,” the Court 
continued, “since all of the respondents are engaged in 
the business of marketing California nectarines, plums, 
and peaches, it is fair to presume that they agree with 
the central message of the speech that is generated by 
the generic program.” Id. at 470. Accordingly, the 
Court concluded that “none of our First Amendment 
jurisprudence provides any support for the suggestion 
that the promotional regulations should be scrutinized 
under a different standard” from that applicable to 
other economic regulations. Ibid.8 

The Court, in elaborating upon that holding, rejected 
the contention that the generic advertising programs 
involved the sort of compelled funding of expressive 
and associational activity that was held to implicate the 
First Amendment in cases such as Abood v. Detroit 
Board of Education, 431 U.S. 209 (1977). Wileman 
Bros., 521 U.S. at 472-473. The Court explained that 

8 The Court noted, in particular, that its “compelled speech” 
case law was “clearly inapplicable.” Wileman Bros., 521 U.S. at 
470. The Court explained that the use of assessments to pay for 
advertising “does not require respondents to repeat an objection- 
able message out of their own mouths, require them to use their 
own property to convey an antagonistic ideological message, force 
them to respond to a hostile message when they would prefer to 
remain silent, or require them to be publicly identified or associ- 
ated with another’s message.” Id. at 470-471 (internal citations and 
quotation marks omitted). 

16 

“Abood, and the cases that follow it, did not announce a 
broad First Amendment right not to be compelled to 
provide financial support for any organization that 
conducts expressive activities,” but instead “merely 
recognized a First Amendment interest in not being 
compelled to contribute to an organization whose exp- 
ressive activities conflict with one’s ‘freedom of belief.’ ” 
Id. at 471 (quoting Abood, 431 U.S. at 235). The Court 
added that an individual may be required to contribute 
even to such activities—although they may be to some 
extent ideological—provided that the activities are 
“germane” to a sufficiently important legislative pur- 
pose justifying the compelled association. Id. at 472- 
473 (discussing Lehnert v. Ferris Faculty Ass’n, 500 
U.S. 507 (1991), and Keller v. State Bar, 496 U.S. 1 
(1990)). 

The Court concluded that the generic advertising 
programs in Wileman Brothers “clearly satisfied” the 
standard articulated in Abood and its progeny on two 
counts: “(1) the generic advertising of California 
peaches and nectarines is unquestionably germane to 
the purposes of the marketing orders and, (2) in any 
event, the assessments are not used to fund ideological 
activities.” Wileman Bros., 521 U.S. at 473.9 Indeed, 

9 The Court thus recognized that the compelled funding of 
expressive activities does not violate the First Amendment so long 
as at least one of the quoted requirements is satisfied—i.e., that 
the expressive activities are either non-ideological or germane to 
the statutory or regulatory purpose (or, as here and in Wileman 
Brothers, both). That conclusion is reinforced by the Court’s use of 
the phrase “in any event,” which is ordinarily used to introduce an 
independently sufficient ground of decision. Cf. Flamer v. Dela- 
ware, 68 F.3d 736, 757 (3d Cir. 1995) (en banc) (“[A]s the Supreme 
Court’s use of the phrase ‘in any event’ [in Victor v. Nebraska, 511 
U.S. 1, 20 (1994)] suggests, we do not interpret the Court’s opinion 

17 

the Court recognized that compelled contributions to 
generic advertising programs for agricultural commodi- 
ties are “even less likely to pose a First Amendment 
burden” than the compelled contributions for collective 
bargaining activities in Lehnert and Abood, because “a 
union agency-shop agreement * * * arguably always 
poses some burden on First Amendment rights,” 
whereas collective marketing programs for commercial 
products “do not, as a general matter, impinge on 
speech or association rights.” Id. at 473-474 n.16. 

2. Here, based on the same three distinctions identi- 
fied by the Court in Wileman Brothers, the generic 
advertising program for mushrooms is unlike laws that 
have been held to violate the First Amendment. The 
Mushroom Act and the Mushroom Order do not 
restrain the freedom of respondent or other mushroom 
producers “to communicate any message to any audi- 
ence,” do not compel respondent or other producers “to 
engage in any actual or symbolic speech,” and do not 
require respondent or other producers “to endorse or to 
finance any political or ideological views.” Wileman 
Bros., 521 U.S. at 469-470. 

to mean that this alternative definition was essential to its hold- 
ing.”), cert. denied, 516 U.S. 1088 (1996). Justice Souter, in his dis- 
senting opinion in Wileman Brothers, understood the Court’s 
opinion as stating alternative bases on which a generic advertising 
program funded by assessments on members of the industry could 
satisfy the First Amendment. See 521 U.S. at 483 n.3 (Souter, J., 
dissenting) (describing the Court’s opinion as holding “that a com- 
pelled subsidy of speech does not implicate the First Amendment if 
the speech either is germane to an otherwise permissible regula- 
tory scheme or is nonideological, so that each of these characteris- 
tics constitutes an independent, sufficient criterion for upholding 
the subsidy”). 

18 

Instead, the Mushroom Act and the Mushroom Order 
merely require respondent and other producers to 
share in the costs of commercial messages, without any 
political or ideological content, that are germane to the 
statutory purposes of “strengthen[ing] the mushroom 
industry’s position in the marketplace,” “maintain[ing] 
and expand[ing] existing markets and uses for mush- 
rooms,” and “develop[ing] new markets and uses for 
mushrooms.” 7 U.S.C. 6101(b). The Act explicitly “pro- 
hibit[s]” the use of producers’ and importers’ assess- 
ments “in any manner for the purpose of influencing 
legislation or government action or policy.” 7 U.S.C. 
6104(h). 

10 The Act also explicitly confines the use of 
those assessments to the “payment of the expenses in 
implementing and administering this chapter,” 7 U.S.C. 
6104(g)(3)—expenses relating to developing and carry- 
ing out programs of “mushroom promotion, research, 
consumer information, and industry information,” 
which must be proposed by the Mushroom Council and 
approved by the Secretary before they are put into 
effect, 7 U.S.C. 6104(c)(4). See also 7 C.F.R. 1209.40 
(describing the “programs, plans, and projects” that 
may be conducted under the Mushroom Act and the 
Mushroom Order). 

Thus, the generic advertising program for mush- 
rooms, like those for California tree fruits in Wileman 

10 The Mushroom Act excepts from that prohibition the use of 
funds received by the Mushroom Council for the development and 
recommendation to the Secretary of amendments to the Mushroom 
Order and for submission to the Secretary of recommended volun- 
tary grade and quality standards for mushrooms. 7 U.S.C. 6104(h); 
see also 7 U.S.C. 6104(c)(5) (providing that the Mushroom Order 
may authorize the Mushroom Council to develop such standards). 
We have been informed by the Department of Agriculture that no 
voluntary grade or quality standards have been developed to date. 

19 

Brothers, is “a species of economic regulation that 
should enjoy the same strong presumption of validity 
that [the Court] accord[s] to other policy judgments 
made by Congress.” 521 U.S. at 477. The Court has 
recognized that such programs serve a “legitimate” 
governmental purpose—that is, “stimulat[ing] con- 
sumer demand for an agricultural product.” Id. at 476. 

11 

Congress, the Secretary, and the industry itself have all 
determined that the program established under the 
Mushroom Act and the Mushroom Order is “effective,” 
ibid., to serve that purpose. In such circumstances, as 
in Wileman Brothers, “[t]he mere fact that one or more 
producers ‘do not wish to foster’ generic advertising of 
their product is not a sufficient reason for overriding 
the judgment of the majority of market participants, 
bureaucrats, and legislators who have concluded that 
such programs are beneficial.” Id. at 477. 

There is, if anything, even more reason here than in 
Wileman Brothers for the Court to “assume,” without 
any need to engage in further inquiry, that the generic 
advertising program “accomplish[es] [its] goals” and 
“therefore further[s] the interests of those who pay for 
[it].” Wileman Bros., 521 U.S. at 462-463 n.3. In con- 
trast to the generic advertising programs for California 
tree fruits, which were adopted by the Secretary under 

11 In Wileman Brothers, the Court identified the government’s 
interest as stimulating demand for agricultural products “in a 
regulated market.” 521 U.S. at 476. As we explain below (at 24- 

26), regardless of the extent to which the market for a commodity 
is regulated, the government’s interest in maintaining and expand- 
ing that market is equally legitimate. Moreover, the Court recog- 
nized that a generic advertising program funded with mandatory 
contributions from members of the industry is itself “regulatory.” 
See id. at 476 (referring to “promotional advertising” and “other 
regulatory programs”). 

20 

the general authority of the AMAA, the generic adver- 
tising program for mushrooms was specifically author- 
ized by Congress in 1990. At that time, Congress 
expressly found the mushroom program to be “in the 
public interest,” 7 U.S.C. 6101(b), as “necessary to 
maintain and expand existing markets for mushrooms,” 
7 U.S.C. 6101(a)(6). 

12 In 1996, Congress reaffirmed in 
the FAIR Act that the generic advertising program for 
mushrooms, along with a number of other specifically 
identified programs, “is in the national public interest 
and vital to the welfare of the agricultural economy of 
the United States.” 7 U.S.C. 7401(b)(1); see 7 U.S.C. 
7401(a)(10) (identifying the mushroom program as one 
of the programs addressed by the FAIR Act). And, as 
recently as 1998, in a statutorily required referendum 
of producers and importers subject to assessments 
under the Mushroom Act, 80% of those voting agreed 
that the generic advertising program should be con- 
tinued. See note 6, supra; cf. Wileman Bros., 521 U.S. 
at 463 (noting that marketing order amendments pro- 
viding for generic advertising programs were adopted 
between 1966 and 1976). There is no warrant under 
Wileman Brothers for courts to revisit such recent, 
specific, and decisive “policy judgments” by Congress, 
the Secretary, and the affected industry. 521 U.S. at 
476. 

12 The legislative record reflects that Members of Congress 
were aware both of the widespread support within the mushroom 
industry for a generic advertising program and of respondent’s 
opposition to such a program. See note 5, supra. 

21 

B. The Court Of Appeals Erred In Distinguishing This 

Case From Wileman Brothers On The Ground That 

Mushrooms Are Not As Extensively Regulated As 

California Tree Fruits 

The court of appeals departed from the holding in 
Wileman Brothers on the ground that, in its view, the 
mushroom industry is “unregulated,” whereas the 
California peach, plum, and nectarine industries are 
“fully collectivized” and “no longer a part of a free 
market.” Pet. App. 7a-8a. The court of appeals’ 
analysis is not supported by Wileman Brothers, by this 
Court’s other decisions involving compelled funding of 
expression, or otherwise by fact, law, or logic. And it is 
premised on a misunderstanding of the scope of the 
marketing orders in Wileman Brothers, which did not, 
as the court below supposed (id. at 7a-8a), extend to 
“price” and “supply” regulations that conferred the 
benefits of “monopoly power” on the California tree 
fruit industries. 

1. The court of appeals distinguished the generic 
advertising program for mushrooms from the generic 
advertising programs for California tree fruits on the 
basis of language that was not a part of this Court’s 
First Amendment analysis in Part IV of the Wileman 
Brothers opinion. Instead, the discussion of industry 
regulation relied upon by the court of appeals was set 
forth in Part III of the Wileman Brothers opinion, the 
section in which the Court sought to define the scope of 
the controversy before it. There, the Court explained 
that, in answering the question “whether being com- 
pelled to fund this advertising raises a First Amend- 
ment issue for us to resolve, or rather is simply a 
question of economic policy,” “we stress the importance 

22 

of the statutory context in which it arises.” Wileman 
Bros., 521 U.S. at 468-469. The Court went on to state: 

California nectarines and peaches are marketed 
pursuant to detailed marketing orders that have 
displaced many aspects of independent business 
activity that characterize other portions of the 
economy in which competition is fully protected by 
the antitrust laws. The business entities that are 
compelled to fund the generic advertising at issue in 
this litigation do so as a part of a broader collective 
enterprise in which their freedom to act indepen- 
dently is already constrained by the regulatory 
scheme. 

Id. at 469. 

That discussion is not repeated, referenced, or relied 
upon in Part IV of the Wileman Brothers opinion, the 
section that contains the Court’s core First Amendment 
analysis. Compare 521 U.S. at 467-469 (Pt. III) with id. 
at 469-474 (Pt. IV). And significantly, none of the three 
grounds on which the Court distinguished the laws in 
Wileman Brothers from laws held to violate the First 
Amendment has anything to do with the extent to 
which the industry subject to the law is otherwise 
regulated. See id. at 469-470; see pp. 14-15, supra. 
Presumably, if the Court had intended its decision in 
Wileman Brothers to turn on the extent of regulation of 
the industry at issue, the Court would not merely have 
stated as a fact that the California peach, plum, and 
nectarine industries were regulated in other respects, 
but would also have explained the significance of that 
fact to its First Amendment holding. 

As one court has suggested, “the point” of the 
Court’s discussion of the regulatory context in Wile- 
man Brothers appears to be that “the advertising tool 

23 

merely seeks to accomplish the same goals as equally or 
more invasive tools, such as price, quantity, quality and 
labeling restrictions,” which indisputably are entitled to 
a strong presumption of validity. Gerawan Farming, 
Inc. v. Veneman, 85 Cal. Rptr. 2d 598, 605 (Ct. App. 
1999), aff ’d in part and vacated in part sub nom. 
Gerawan Farming, Inc. v. Lyons, 12 P.3d 720 (Cal. 
2000) (remanding for consideration of objecting 
growers’ challenge under free speech provision of 
California Constitution). It thus seems particularly 
appropriate to accord the same degree of judicial 
scrutiny to all of the regulatory tools that are directed 
at those goals, notwithstanding that “the advertising 
tool involves an activity that, in other contexts, is 
‘commercial speech’ protected by the First Amend- 
ment.” 85 Cal. Rptr. at 605. That analysis is consistent 
with the Court’s observation in Wileman Brothers that 
“decisions that are made by the majority, if acceptable 
for other regulatory programs, should be equally so for 
promotional advertising.” 521 U.S. at 476. 

Moreover, the Court granted certiorari in Wileman 
Brothers to resolve a conflict between the Ninth Cir- 
cuit’s decision in that case and the Third Circuit’s deci- 
sion in United States v. Frame, 885 F.2d 1119 (1989), 
cert. denied, 493 U.S. 1094 (1990). See Wileman Bros., 
521 U.S. at 466-467. Frame, like the present case, 
involved a First Amendment challenge to a generic 
advertising program established pursuant to a statute 
—there, the Beef Promotion and Research Act of 1985, 
7 U.S.C. 2901 et seq. (Beef Act)—that does not exten- 
sively regulate the relevant industry. The Beef Act, 
like the Mushroom Act, is concerned solely with “pro- 
motion and advertising, research, consumer informa- 
tion, and industry information” funded through assess- 
ments on producers and importers. 7 U.S.C. 2904(4)(B); 

24 

see Frame, 885 F.2d at 1122 (The Beef Act “was 
structured as a ‘self-help’ measure that would enable 
the beef industry to employ its own resources and 
devise its own strategies to increase beef sales, while 
simultaneously avoiding the intrusiveness of govern- 
ment regulation and the cost of government ‘hand- 
outs.’ ”). The Court was made aware of the differences 
in regulatory scope between the orders in Wileman 
Brothers and Frame. See Oral Argument Tr. at 26, 
Wileman Bros. (No. 95-1184) (government counsel ex- 
plains that “[t]he beef program focuses almost exclu- 
sively on promotional programs and advertising”); 
Frame, 885 F.2d at 1122-1124; see also Wileman Bros., 
521 U.S. at 466-467 (discussing Frame). The Court did 
not suggest that a distinction of constitutional signifi- 
cance should be drawn between the advertising pro- 
gram in Frame and the advertising programs in 
Wileman Brothers. If the Court’s decision in Wileman 
Brothers were limited to generic advertising programs 
imposed under marketing orders comprehensively 
regulating a commodity, then the Court’s decision 
would not support the decision in Frame, and the Court 
presumably would have said so, having granted 
certiorari to resolve the conflict between Wileman 
Brothers and Frame. 

2. In any event, whether or not Wileman Brothers 
squarely controls a case involving “stand alone” generic 
advertising programs such as the ones here and in 
Frame, the Court’s First Amendment rationale in Wile- 
man Brothers plainly does apply, as we have explained 
above. Accordingly, the Court now should hold that 
such programs are consistent with the First Amend- 
ment. There is no reason to evaluate generic advertis- 
ing programs differently under the First Amendment 
depending upon whether, or to what extent, the pro- 

25 

gram involves a commodity that is subject to other 
sorts of government regulation in addition to assess- 
ments for generic advertising. 

The purpose of a generic advertising program is the 
same, whether the program stands alone (as here) or is 
part of a more comprehensive regulatory scheme (as in 
Wileman Brothers). In either case, the purpose is to 
maintain and expand the market for an agricultural 
commodity, to the benefit of the producers and pro- 
cessors of the commodity and, ultimately, of the 
Nation’s agricultural economy as a whole. See Wile- 
man Bros., 521 U.S. at 476 (noting that the govern- 
ment’s purpose of “stimulat[ing] consumer demand for 
an agricultural product in a regulated market” is a 
“legitimate” one); 7 U.S.C. 7401(a), (b)(1) and (2) (con- 
gressional findings in the FAIR Act with respect 
to generic advertising programs). 

13 That purpose is 
equally legitimate whether the government has sought 
to achieve it through a generic advertising program 
alone or, alternatively, though a generic advertising 
program coupled with regulations of, for example, 
quality, quantity, or price. It would make little sense to 
require Congress, in order to assure the constitu- 
tionality of a generic advertising program designed to 
stimulate the market for a given commodity, to tack on 

13 Congress made that point clearly in the FAIR Act, which 
articulated the same “national public interest” served by all extant 
generic advertising programs for agricultural commodities, 
including programs authorized under the AMAA (like those in 
Wileman Brothers) as well as programs authorized under specific 
statutes such as the Mushroom Act. 7 U.S.C. 7401(b)(1); see 
7 U.S.C. 7401(a)(1)(referring generally to AMAA programs) and 
(10) (referring specifically to Mushroom Act). 

26 

other regulations that Congress did not consider 
necessary to achieve that purpose. 

14 

So, too, the effect of the generic advertising program 
is the same, whether the program stands alone or is 
part of a more comprehensive regulatory scheme. In 
either case, the program is financed by assessments on 
all producers or handlers of the commodity, so as to 
avoid the problem of “free riders” who could obtain the 
benefits of the program without sharing the costs. 
Those means are equally legitimate whether the 
assessments are used only to fund a generic advertising 
program or also to fund other regulatory efforts, such 
as an inspection program. Cf. Abood, 431 U.S. at 224 
(declining to apply a more rigorous First Amendment 
analysis when an agency-shop requirement is imposed 
on government employees as opposed to private sector 
employees, because “[t]he desirability of labor peace is 
no less important in the public sector, nor is the risk of 
‘free riders’ any smaller”). 

15 

14 In some settings, Congress might find such additional regu- 
lation not only unnecessary, but also unwise. For example, as 
noted by congressional supporters of the generic advertising pro- 
grams enacted in 1990 for mushrooms and other agricultural com- 
modities, some regulatory measures designed to strengthen the 
position of domestic producers and processors of a commodity 
could antagonize our foreign trading partners. See 136 Cong. Rec. 
at 19,614 (statement of Sen. Heinz). And regulations that operate 
directly to restrict the supply or maintain the price of a commodity 
may antagonize consumers. 

15 This Court’s decisions involving compelled funding of expres- 
sive or associational activities (e.g., Abood, Lehnert, and Keller) do 
not suggest a First Amendment distinction based on whether, or 
to what extent, the government otherwise regulates the party on 
whom the funding obligation is imposed. To the contrary, the 
Court has applied the same standard to public employees, whose 
workplaces perforce are comprehensively regulated by the govern- 

27 

3. The court of appeals, in seeking to distinguish this 
case from Wileman Brothers, assumed that members of 
“fully collectivized” industries—a category in which the 
court included the California peach, plum, and nectarine 
industries—enjoy the benefits of “the monopoly powers 
inherent in government control of price and supply.” 
Pet. App. 7a-8a. The court reasoned that only “[i]n 
exchange for” such benefits may industry members be 
required to contribute to a generic advertising pro- 
gram. Id. at 8a. The court held that such contributions 
may not be exacted, however, in industries without 
such extensive regulation. Ibid. The court of appeals 
erred in several basic respects. 

As an initial matter, the court of appeals’ analysis 
rests on two erroneous factual premises. The California 
tree fruit handlers in Wileman Brothers did not operate 
under a regulatory regime whereby, as the court of 
appeals assumed (Pet. App. 7a), they possessed 
“monopoly power resulting from regulation of price and 
supply.” Instead, the marketing orders in that case 
authorized collective advertising and “govern[ed] mar- 
keting matters such as fruit size and maturity levels.” 
Wileman Bros., 521 U.S. at 462; see also Gerawan 
Farming, 12 P.3d at 746 (noting that the marketing 
orders in Wileman Brothers “provided for the under- 
taking * * * of research and development projects, 
including advertising, and set out specific regulations 
regarding both fruit containers and packs and also fruit 
grades and sizes”). Those marketing orders did not 

ment, and to private sector employees, whose workplaces ordinar- 
ily are less extensively regulated. See Abood, 431 U.S. at 229-230 
(rejecting argument that more rigorous First Amendment stan- 
dard should apply to public employees); see also Keller, 496 U.S. at 
10 (observing that Abood principles apply “equally to employees in 
the private sector”). 

28 

impose limits on the supply or price of the covered 
commodities. See 7 C.F.R. Pts. 916, 917 (1997). 

16 The 
additional regulations that the marketing orders did 
impose, such as fruit size and maturity standards, were 
doubtless perceived as beneficial by the affected 
industries. (For example, if California peaches are 
marketed at their optimal size and ripeness, consumers 
might be expected to buy more of them.) But those 
sorts of regulations ordinarily would not, standing 
alone, enable an industry to enjoy the benefits associ- 
ated with “monopoly power.” Nor did the court of 
appeals in this case, which mistakenly perceived the 
marketing orders in Wileman Brothers as regulating 
much more extensively, suggest that mere size, matur- 
ity, or packaging regulations would have that effect. 

Also contrary to the court of appeals’ premise (Pet. 
App. 8a), the mushroom industry is not wholly “unregu- 
lated.” As the Court indicated in Wileman Brothers, a 
generic advertising program funded with mandatory 
contributions from members of the industry is itself 
“regulatory.” See 521 U.S. at 476 (referring to “promo- 
tional advertising” and “other regulatory programs”). 
Moreover, as with respect to the California tree fruit 

16 This Court appears to have recognized as much. See 
Wileman Bros., 521 U.S. at 461-462 (distinguishing the regulations 
actually imposed by the marketing orders at issue from the 
broader set of “collective activities that Congress authorized” in 
the AMAA); id. at 461 (noting that marketing orders under the 
AMAA “may include mechanisms that provide a uniform price to 
all producers”) (emphasis added). The mere fact that price or 
supply regulations could have been imposed on the California tree 
fruit industries in Wileman Brothers provides no basis to 
distinguish that case from this one, because such regulations could 
also be adopted for the mushroom industry under the AMAA. See 
pp. 28-29, infra. 

29 

industries in Wileman Brothers, the statutory frame- 
work exists under the AMAA, as well as under the 
Mushroom Act, for additional regulation of the mush- 
room industry. The AMAA authorizes the same degree 
of regulation by industry consensus in the mushroom 
industry as in the California tree fruit industries. See 
7 U.S.C. 608c(2) (with exceptions not relevant here, 
“any agricultural commodity” may be covered by an 
“[o]rder[] issued pursuant to” the AMAA). And the 
Mushroom Act authorizes the Mushroom Council to 
develop voluntary grade and quality standards, which 
would serve essentially the same purposes as the 
binding fruit size and maturity standards under the 
marketing orders in Wileman Brothers. See 7 U.S.C. 
6104(c)(5). 

In any event, this Court’s compelled funding cases, 
including Wileman Brothers, offer no support for the 
so-called “reciprocity principle” announced by the court 
of appeals—i.e., that a person may be compelled to fund 
expressive activity only “[i]n exchange for” some 
benefit (e.g., “monopoly power”) that is distinct from, 
and in addition to, the benefit that the person receives 
from the expressive activity itself (e.g., increased 
consumer awareness of mushrooms). Pet. App. 8a. 
This Court has not suggested that, as the court of 
appeals held (id. at 7a-8a), assessments to fund 
“nonideological * * * commercial speech” are justified 
only “in the context of the extensive regulation of an 
industry but not otherwise,” on the premise that only in 
the former context will such assessments serve “to 
deter free riders who take advantage of their monopoly 
power resulting from regulation of price and supply 

30 

without paying for whatever commercial benefits such 
free riders receive at the hands of the government.” 

17 

Rather, this Court’s cases proceed on the under- 
standing that, when the legislature determines that a 
sufficiently important public purpose will be served by 
collective speech or association among members of a 
group (e.g., fruit growers, public school teachers, law- 
yers), the legislature may require all members of the 
group to share the costs of that collective speech or 
association so as to avoid “free rider” problems. See, 

e.g., Keller, 496 U.S. at 12; Abood, 431 U.S. at 221-222. 
In considering whether the assessments imposed on 
objecting members of the group comport with the First 
Amendment, the Court has looked to whether the 
assessments are used to fund activities that are either 
non-ideological or germane to the public purpose that 
justified the collective speech or association. See, e.g., 
Keller, 496 U.S. at 13-14; Abood, 431 U.S. at 222-223, 
236. But the Court has not also looked to whether the 
members obtain some additional economic (or other) 
benefit, under regulatory provisions separate from 

17 Indeed, this Court has recognized that businesses with “mo- 
nopoly power” enjoy First Amendment protection, just as do busi- 
nesses without such power. See Central Hudson Gas & Elec. 
Corp. v. Public Serv. Comm’n, 447 U.S. 557, 568 (1980) (concluding 
that a utility’s “monopoly position does not alter the First Amend- 
ment’s protection for its commercial speech”); Consolidated Edi- 
son Co. v. Public Serv. Comm’n, 447 U.S. 530, 534 n.1 (1980) (“We 
have recognized that the speech of heavily regulated businesses 
may enjoy constitutional protection.”). Although those cases arose 
in the context of government regulations that (unlike those here 
and in Wileman Brothers) suppressed the companies’ own speech, 
they reinforce the conclusion that the distinction drawn by the 
court of appeals is also without constitutional significance with 
respect to mandatory assessments to fund generic advertising 
programs. 

31 

those establishing a program of collective speech or 
association, “in exchange for” which the members may 
be required to contribute to that program. 

Finally, the court of appeals’ approach, if allowed to 
stand, would produce difficulties in application and 
anomalies in result. It would require a court to engage 
in an intricate analysis of all of the regulatory pro- 
visions applicable to a given commodity, so as to ascer- 
tain whether those provisions confer some other com- 
mercial benefit on producers of the commodity, in 
return for which they may be required to participate in 
a generic advertising program. Presumably, a court 
could not look solely at the statute or marketing order 
establishing the generic advertising program, because a 
commodity may be regulated (or subject to regulation) 
in other respects under other statutes or marketing 
orders. For example, the generic advertising programs 
for milk, dairy products, and beef are each established 
pursuant to statutes that, like the Mushroom Act, do 
not otherwise regulate the commodity at issue. See 
7 U.S.C. 2901 et seq. (beef); 7 U.S.C. 4501 et seq. (dairy 
products); 7 U.S.C. 6401 et seq. (fluid milk). But those 
commodities are regulated extensively (in some re- 
spects more extensively than the California tree fruits 
in Wileman Brothers) under other federal and state 
statues. 

18 Thus, of two generic advertising programs 
authorized by Congress and established by the Secre- 
tary pursuant to statutes virtually identical to the 

18 The Sixth Circuit, in an unpublished opinion that was issued 
shortly before its decision in this case, sustained the generic adver- 
tising program for dairy products against a First Amendment 
challenge. Nature’s Dairy v. Glickman, No. 98-1073, 1999 WL 
137631 (Mar. 2, 1999) (173 F.3d 429 (Table)), cert. denied, 528 U.S. 
1074 (2000). 

32 

Mushroom Act, one program might be constitutional 
and the other unconstitutional under the court of 
appeals’ approach, depending on whether another Con- 
gress, another Secretary, or another federal or state 
authority had imposed additional regulations on the 
commodity to be advertised. 

II. THE GENERIC ADVERTISING PROGRAM FOR 
MUSHROOMS DOES NOT VIOLATE THE FIRST 
AMENDMENT FOR THE INDEPENDENT REA- 
SON THAT IT INVOLVES ONLY GOVERNMENT 
SPEECH 

There is a second reason, independent of this Court’s 
decision in Wileman Brothers, why the generic adver- 
tising program for mushrooms is consistent with the 
First Amendment. The First Amendment does not 
constrain the government’s ability to engage in speech 
of its own, whether funded by general tax revenues or 
by “user fees” imposed on those who benefit most from 
the speech. The Mushroom Act and the Mushroom 
Order may appropriately be viewed as establishing a 
program of government speech. 

19 

1. This Court has recognized that “[t]he govern- 
ment, as a general rule, may support valid programs 
and policies by taxes or other exactions binding on 

19 The argument that the generic advertising program for mush- 
rooms is permissible government speech, although not raised or 
addressed below, “is fairly embraced within the question set forth 
in the petition for certiorari,” Lebron v. National R.R. Passenger 
Corp., 513 U.S. 374, 379-380 (1995), which asks whether the generic 
advertising program for mushrooms violates the First Amend- 
ment. See Pet. I. The government did not rely upon an argument 
based on the “government speech” doctrine in Wileman Brothers. 
See 521 U.S. at 482 n.2 (Souter, J., dissenting); U.S. Br. at 25 n.16, 
Wileman Bros., No. 95-1184. 

33 

protesting parties.” Board of Regents of the Univ. of 
Wis. Sys. v. Southworth, 120 S. Ct. 1346, 1354 (2000). It 
follows from that “broader principle” that the 
government may spend the funds that it raises to 
engage in “speech and other expression to advocate and 
defend its own policies.” Ibid.; see also, e.g., Rosen- 
berger v. Rector & Visitors of Univ. of Va., 515 U.S. 
819, 833 (1995) (“when the government appropriates 
public funds to promote a particular policy of its own it 
is entitled to say what it wishes”). 

The government’s speech necessarily is paid for by 
citizens, some of whom (although, presumably, a minor- 
ity) may disagree with its message. But such disagree- 
ment provides no basis under the First Amendment to 
silence the government or to excuse objecting citizens 
from having to share the costs of its speech. The First 
Amendment limits government interference with 
private speech; it does not limit the government’s own 
speech. See Keller, 496 U.S. at 12-13 (“If every citizen 
were to have a right to insist that no one paid by public 
funds express a view with which he disagreed, debate 
over issues of great concern to the public would be 
limited to those in the private sector, and the process of 
government as we know it radically transformed.”); 
Lathrop v. Donohue, 367 U.S. 820, 857 (1961) (Harlan, 
J., concurring) (“A federal taxpayer obtains no refund if 
he is offended by what is put out by the United States 
Information Agency.”). As Justice Scalia has put it: 

It is the very business of government to favor and 
disfavor points of view on (in modern times, at least) 
innumerable subjects * * *. And it makes not a bit 
of difference, insofar as either common sense or the 
Constitution is concerned, whether [government] 
officials further their (and, in a democracy, our) 

34 

favored point of view by achieving it directly * * *; 
or by advocating it officially * * *; or by giving 
money to others who achieve or advocate it * * *. 
None of this has anything to do with abridging 
anyone’s speech. 

National Endowment for the Arts v. Finley, 524 U.S. 
569, 598 (1999) (Scalia, J., concurring); see also Block v. 
Meese, 793 F.2d 1303, 1313 (D.C. Cir.) (Scalia, J.) 
(rejecting the view that the marketplace of ideas is “one 
in which the government’s wares cannot be adver- 
tised”), cert. denied, 478 U.S. 1021 (1986). 

20 

2. The speech engaged in by the Mushroom Council, 
subject to the continuing oversight of the Secretary of 
Agriculture, is government speech for purposes of the 
First Amendment. 

In Lebron v. National Railroad Passenger Corp., 513 
U.S. 374 (1985), the Court held that Amtrak is an arm of 
the government, such that Amtrak is subject to the 
constraints of the First Amendment when it restricts 
private speech. The Court ruled that, when “the Gov- 
ernment creates a corporation by special law, for the 
furtherance of governmental objectives, and retains for 
itself permanent authority to appoint a majority of the 
directors of that corporation, the corporation is part of 
the Government for purposes of the First Amendment.” 
Id. at 400. 

20 Similarly, Justice Powell, in his concurring opinion in Abood, 
recognized that “[c]ompelled support of a private association is 
fundamentally different from compelled support of government.” 
431 U.S. at 259 n.13 (Powell, J., concurring). As Justice Powell ex- 
plained, “the reason for permitting the government to compel the 
payment of taxes and to spend money on controversial projects is 
that the government is representative of the people.” Ibid. 

35 

Under that standard, the Mushroom Council, even 
more clearly than Amtrak, is part of the government 
for First Amendment purposes. First, the Mushroom 
Council, like Amtrak, was “create[d] * * * by special 
law.” Lebron, 513 U.S. at 400. As explained above (at 3 
& note 1), the Mushroom Act specifically provides for 
the establishment of the Mushroom Council, by an 
order issued by the Secretary of Agriculture, subject to 
approval of that order by a majority of mushroom pro- 
ducers and importers. 7 U.S.C. 6103, 6104(b), 6105(a); 
see United States v. Rock Royal Co-op., Inc., 307 U.S. 
533, 577-578 (1939); Currin v. Wallace, 306 U.S. 1, 15-16 
(1939). 

Second, the Mushroom Council, like Amtrak, was 
established “for the furtherance of governmental objec- 
tives.” Lebron, 513 U.S. at 400. As explained above (at 
3-4), the Mushroom Council was designed to propose to 
the Secretary and to implement programs of “mush- 
room promotion, research, consumer information, and 
industry information.” 7 U.S.C. 6104(c)(4). The Mush- 
room Act declares it to be the “policy of Congress” that 
it is in “the public interest” to authorize a mechanism 
for developing, financing (through assessments), and 
carrying out an effective program of promotion, re- 
search, and consumer and industry information de- 
signed to “strengthen the mushroom industry’s position 
in the marketplace,” “maintain and expand existing 
markets and uses for mushrooms,” and “develop new 
markets and uses for mushrooms.” 7 U.S.C. 6101(b); 
see also 7 U.S.C. 7401(b)(1) (discussing the “national 
public interest” served by generic advertising pro- 

36 

grams, including the mushroom program, see 7 U.S.C. 
7401(a)(10)). 

21 

Third, the Secretary appoints not merely “a 
majority,” Lebron, 513 U.S. at 400, of the members of 
the Mushroom Council, but all of its members. 7 U.S.C. 
6104(b)(1)(B) (“the members of the Council shall be 
mushroom producers and importers appointed by the 
Secretary from nominations submitted by producers 
and importers in the manner authorized by the Secre- 
tary”) (emphasis added); see also 7 U.S.C. 6104(b)(2)(G) 
(Secretary may appoint members of the Council in the 
absence of nominations from producers and importers). 
The Mushroom Act establishes three-year terms of 
appointment, 7 U.S.C. 6104(b)(3)(A), thereby assuring 
the Secretary’s continuing role in the composition of the 

21 In the FAIR Act, Congress referred to generic promotional 
programs as “‘self-help’ mechanisms.” 7 U.S.C. 7401(b)(8). As the 
rest of that provision of the FAIR Act makes clear, the reference 
to such programs as “ ‘self-help’ mechanisms” simply reflects the 
fact that such programs provide “for producers and processors to 
fund generic promotions for covered commodities,” ibid.—and, pre- 
sumably, that members of the industry involved typically partici- 
pate in a referendum before the order establishing a promotional 
program becomes effective and nominate persons for the Secretary 
to appoint to a council or board established by the order. That 
description does not detract from the status of the advertising gen- 
erated by such programs as government speech for First Amend- 
ment purposes. To the contrary, 7 U.S.C. 7401(b)(8) goes on to 
state that the generic promotion programs are conducted “under 
the required supervision and oversight of the Secretary of Agricul- 
ture,” “further specific national governmental goals, as established 
by Congress,” and “produce nonideological and commercial com- 
munication the purpose of which is to further the governmental 
policy and objective of maintaining and expanding the markets for 
the covered commodities.” 

37 

22 The Secretary also has authority to remove 
members of the Council for “adequate cause.” 7 C.F.R. 
1209.35(c). 

The statutory and regulatory scheme governing the 
Mushroom Council, in addition to satisfying the three 
factors articulated in Lebron, provides further reason to 
conclude the Council’s speech may properly be viewed 
as government speech. Most significantly, of course, 
the central thrust of the expression to be undertaken 
by the Council—the promotion of mushrooms—is pre- 
scribed by the Mushroom Act, see 7 U.S.C. 6101(a)(5) 
and (b); 7 U.S.C. 6104(c)(4), and the Mushroom Order, 
see 7 C.F.R. 1209.40(a)(1). Cf. Wileman Bros., 521 U.S. 
at 470 (referring to the “central message” of the speech 
generated by the generic advertising program). The 
Act and the Order also carefully delineate in other 
respects the activities, including the expressive activi- 
ties, in which the Council may, and may not, engage. 
See 7 U.S.C. 6104(c) (defining the “powers and duties” 
of the Council); 7 C.F.R. 1209.38-1209.39 (same); see 
also 7 U.S.C. 6104(h) (prohibiting the Council from 
using its funds “in any manner for the purpose of influ- 
encing legislation or governmental action or policy”); 7 
C.F.R. 1209.40(d) (prohibiting the Council from, inter 
alia, making any reference in its programs “to a brand 
name, trade name, or State or regional identification of 
any mushrooms or mushroom product”). The Act and 
the Order also provide for the Secretary’s continuing 
oversight of the Council’s activities. For example, the 
Act directs that “[n]o plan or project of promotion, 
research, consumer information, or industry informa- 
tion, or budget, shall be implemented prior to its 

22 A member is limited to serving two three-year terms. 
7 C.F.R. 1209.34(e)(1). 

Council. 

38 

approval by the Secretary.” 7 U.S.C. 6104(d)(3); see 
also 7 C.F.R. 1209.70 (“All fiscal matters, programs, 
plans, or projects, rules or regulations, reports, or other 
substantive actions proposed and prepared by the 
Council shall be submitted to the Secretary for 
approval.”). 

23 The Secretary also has the authority to 
suspend or terminate the mushroom program at any 
time upon determining that the program “obstructs or 
does not tend to effectuate the declared policy of this 
chapter.” 7 U.S.C. 6110. 

24 

In addition, any legal proceedings concerning the 
enforcement or validity of any order issued under the 
Mushroom Act are brought by or against the United 
States. Thus, the Mushroom Act provides that any 

23 The Secretary’s currently applicable Guidelines for the 
oversight of generic advertising programs, such as the mushroom 
program, provide for review, inter alia, of “all commodity pro- 
motional campaigns—advertising, consumer education programs, 
and other promotional materials” as well as “the advertisements or 
printed materials generated in the campaign.” Agricultural Mktg. 
Serv., United States Dep’t of Agric., Guidelines for AMS Over- 
sight of Commodity Research and Promotion Programs 7 (1994). 
The Guidelines explicitly require the disapproval of advertising 
that the Agricultural Marketing Service considers to be “false and 
misleading” or “disparaging to another commodity.” Id. at 8; see 
also Agricultural Mktg. Serv., United States Dep’t of Agric., 
Guidelines for AMS Oversight of Commodity Research and Pro- 
motion Programs, 64 Fed. Reg. 70,682 (1999) (proposing revised 
Guidelines). 

24 The status of the Mushroom Council as a government entity is 
further demonstrated by the provision of the Mushroom Order 
governing the ownership of property created through projects 
administered by the Council: “Any patents, copyrights, inventions, 
publications, or product formulations developed through the use of 
funds received by the Council under this subpart shall be the pro- 
perty of the United States Government as represented by the 
Council.” 7 C.F.R. 1209.75 (emphasis added). 

39 

person who is subject to an order issued under the Act 
may file a petition with the Secretary, contending that 
the order, a provision of the order, or any obligation 
imposed in connection with the order is contrary to law, 
or requesting a modification of or exemption from the 
order. See 7 U.S.C. 6106(a). The Secretary’s final 
decision on the petition, after a hearing, is subject to 
judicial review in district court. See 7 U.S.C. 6106(a)(2) 
and (b). Respondent invoked that procedure in this 
case. See Pet. App. 11a. Similarly, an enforcement 
action may be brought against any person who violates 
any order or regulation issued by the Secretary under 
the Mushroom Act, either in a civil action brought in 
district court by the Attorney General on behalf of the 
United States (see 7 U.S.C. 6107(a) and (b)), as in this 
case (see Pet. App. 10a-11a), or in administrative pro- 
ceedings instituted by the Secretary to assess a civil 
penalty or to issue a cease-and-desist order (see 
7 U.S.C. 6107(c)), subject to judicial review and enforce- 
ment in district court (see 7 U.S.C. 6107(d)-(f )). 

Finally, the FAIR Act, enacted six years after the 
Mushroom Act, confirms that various generic advertis- 
ing programs for agricultural commodities, specifically 
including the mushroom program, see 7 U.S.C. 
7401(a)(10), are conducted “under the required supervi- 
sion and oversight of the Secretary of Agriculture.” 
7 U.S.C. 7401(b)(8); see also 7 U.S.C. 7401(b)(1) (de- 
scribing such programs as “Government-supervised”); 
7 U.S.C. 7401(b)(2) (describing such programs as 
“supervised by the Secretary of Agriculture”). The 
FAIR Act also recognizes the ongoing role of both the 
Secretary and Congress in assessing whether “the 
objectives of the programs are being met.” 7 U.S.C. 
7401(b)(11). 

40 

Thus, given that Congress created the Mushroom 
Council “by special law, for the furtherance of govern- 
mental objectives,” Lebron, 513 U.S. at 400, that the 
Secretary appoints (and may remove) all members of 
the Council, that the Mushroom Act and the Mushroom 
Order specify the central message of any generic 
advertising and provide substantial direction for the 
activities of the Council, that the Secretary retains 
supervisory authority over the Council, and that the 
authority to enforce the Order is vested in the 
government, the Council is part of the government, and 
its speech is government speech, for purposes of the 
First Amendment. 

25 As such, the Council may engage 
in speech promoting mushrooms, using funds exacted 
from members of the public, without implicating the 
First Amendment. Cf. Abood, 431 U.S. at 259 n.13 
(Powell, J., concurring) (“Compelled support of a pri- 
vate association is fundamentally different from 
compelled support of government.”). 

3. In Southworth, the Court suggested that, in cases 
where the speech at issue is the government’s own, the 
only question that may remain is “whether traditional 
political controls [exist] to ensure responsible govern- 
ment action.” Southworth, 120 S. Ct. at 1354. Such 
“traditional political controls” clearly exist with respect 

25 By contrast, in Keller, in which the Court held that ideological 
speech by the California State Bar was not government speech, 
the State Bar had an existence and functions that were in many 
ways independent of the State; a majority of its Board of Gov- 
ernors was selected by the membership, not appointed by the 
State; and the central message of the challenged speech was not 
prescribed by the government. See 496 U.S. at 4-5 & n.2; Keller v. 
State Bar, 767 P.2d 1019, 1023-1025 (Cal. 1989), rev’d, 496 U.S. 1 
(1990). 

41 

to the advertising and other activities conducted under 
the Mushroom Act. 

Congress, in the Mushroom Act, explicitly approved 
a program of expressive activity to promote mush- 
rooms; at the same time, Congress imposed its own 
restrictions on that expressive activity (e.g., prohibiting 
activity “for the purpose of influencing legislation or 
governmental action or policy,” 7 U.S.C. 6104(h)). Con- 
gress also made all “plan[s]” and “project[s]” of mush- 
room “promotion, research, consumer information, or 
industry information,” as well as all budgets for the 
Mushroom Council, subject to the approval of the 
Secretary of Agriculture, a Cabinet officer appointed by 
the President and confirmed by the Senate. 7 U.S.C. 
6104(d)(3); see 7 U.S.C. 2202. 

26 

Moreover, Congress built additional political controls 
into the Mushroom Act in order to assure that the 
mushroom promotion program serves the interests of 
those who are required to fund it. Congress thus 
provided that the program would become effective only 
if approved by a majority vote in a referendum of those 
producers and importers who are subject to assess- 
ments. 7 U.S.C. 6105(a). Congress provided for a 

26 The legislative record of the Food, Agriculture, Conservation, 
and Trade Act of 1990, of which the Mushroom Act was a part, 
reflects that a number of Members of Congress gave voice to the 
conclusion that generic advertising programs for agricultural com- 
modities are in the public interest. See, e.g., 136 Cong. Rec. at 
19,511-19,513 (statements of Sens. Fowler, Graham, DeConcini, 
McCain, Bond, Cochran, and Specter); id. at 19,614 (statements of 
Sens. Heinz and Thurmond); id. at 19,258 (statement of Rep. 
Panetta). The statements of Senator Specter (id. at 19,513) and 
Senator Heinz (id. at 19,614) reflect that the Mushroom Act was 
enacted only after receiving the views of members of the mush- 
room industry, including respondent. 

42 

second such referendum after the program had been in 
effect for five years. 7 U.S.C. 6105(b)(1)(A). And the 
Act authorizes additional referenda if requested by 30% 
of affected producers and importers. 7 U.S.C. 
6105(b)(1)(B). 

27 Accordingly, whatever “traditional po- 
litical controls” may be required “to ensure responsible 
government action,” Southworth, 120 S. Ct. at 1354, 
they are plainly present in the mushroom program. 

4. No more rigorous First Amendment scrutiny of 
government speech is required here simply because 
Congress chose to fund the generic advertising not 
from general tax revenues, but from assessments on 
those whom Congress determined would “most directly 
reap the benefits of ” the advertising. 7 U.S.C. 
7401(b)(2) (making findings with respect to generic ad- 
vertising programs, including the mushroom program, 
see 7 U.S.C. 7401(a)(10)). The assessments are a 
species of “user fees,” which this Court has viewed as a 
permissible means of funding many government activi- 
ties, including activities relating to expression. 

28 

27 Such provisions provide meaningful relief where (as is not 
suggested to be the case here) a generic advertising program loses 
the support of a majority of producers. See, e.g., Wileman Bros., 
521 U.S. at 463 n.5 (noting that the plum portion of one of the mar- 
keting orders at issue in that case “was terminated in 1991 after a 
majority of plum producers failed to vote for its continuation”); see 
also William Claiborne, Hog Producers Defeat “Pork Checkoff , ” 
Wash. Post, Jan. 16, 2001, at A2 (noting that the generic advertis- 
ing program for pork was to be discontinued by the Secretary of 
Agriculture after a referendum in which a majority of pork pro- 
ducers voted against the program). 

28 See, e.g., United States v. Sperry Corp., 493 U.S. 52, 60-62 
(1989) (upholding, as a permissible “user fee,” a requirement that 
successful claimants before the Iran-United States Claims Tribu- 
nal pay a portion of any award to the U.S. Treasury as “reimburse- 
ment to the United States Government for expenses incurred in 

43 

The Court has not suggested that the “government 
speech” doctrine applies only to speech funded with 
general tax revenues. To the contrary, in Southworth, 
which concerned the constitutionality of a student 
activity fee that was used in part to fund student 
organizations engaging in political or ideological speech, 
the Court noted that, because “[t]he University ha[d] 
disclaimed that the speech is its own,” the case did not 
present the question whether the challenged program 
could be sustained “under the principle that the 
government can speak for itself.” 120 S. Ct. at 1354. 
The Court went on to observe that, “[i]f the challenged 
speech here were financed by tuition dollars and the 
University and its officials were responsible for its 
content, the case might be evaluated on the premise 
that the government itself is the speaker.” Ibid. Thus, 
the Court recognized the potential applicability of the 
government speech doctrine to speech funded not from 
general tax revenues, but from “tuition dollars,” 
another species of user fees. See ibid. (observing that 
“[t]he government, as a general rule, may support valid 
programs and policies by taxes or other exactions 

connection” with the Tribunal); Kadrmas v. Dickinson Pub. Schs., 
487 U.S. 450, 461-462 (1988) (observing that “[i]t is manifestly 
rational” for a State “to allow local school boards the option of 
charging patrons a user fee for bus service” rather than funding 
such service out of general revenues); Cox v. New Hampshire, 312 
U.S. 569, 576-577 (1941) (State may require payment of a “rea- 
sonable” parade license fee to compensate local government for its 
administrative and law-enforcement expenses); cf. United States 
Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 
141 (1981) (White, J., concurring) (“No one questions * * * that 
the Government, the operator of the [postal] system, may impose a 
fee on those who would use the system, even though the user fee 
measurably reduces the ability of various persons or organizations 
to communicate with others.”). 

44 

binding on protesting parties”) (emphasis added); 
Rosenberger, 515 U.S. at 833 (recognizing that “[w]hen 
the University determines the content of the education 
it provides, it is the University speaking,” without sug- 
gesting that the particular source of the University’s 
funds is of any consequence). 

29 

The Court need not decide in this case whether the 
government speech doctrine should ever apply differ- 
ently depending on whether the speech is funded from 
user fees or general tax revenues. At a minimum, 
where a user fee is reasonably commensurate to the 
benefit received (as established here by the overwhelm- 
ing support for the mushroom program in referenda of 
those subject to the assessments), government speech 
funded by the user fee should be viewed no differently 
from government speech funded by general tax reve- 
nues. 

29 Cf. Laurence H. Tribe, American Constitutional Law § 12-4, 
at 807 n.14 (2d ed. 1988) (observing that, although a taxpayer 
might have standing to challenge “an earmarked tax” to fund gov- 
ernment speech on a political or ideological issue, “it has been 
assumed that the taxpayer would lose any such challenge on the 
merits”). 

45 

CONCLUSION 

The judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BARBARA MCDOWELL 

Assistant to the Solicitor 

General 

DOUGLAS N. LETTER 
AUGUST E. FLENTJE 

Attorneys 

JANUARY 2001