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 

REPLY BRIEF FOR THE PETITIONERS 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

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

TABLE OF CONTENTS 

Page 

I. The mushroom advertising program is valid 

under the First Amendment ............................................ 

2 

II. The mushroom advertising program is indistin- 
guishable from taxpayer-funded government 

speech programs that respondent concedes would 

be constitutional .................................................................. 

14 

TABLE OF AUTHORITIES 

Cases: 

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

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

3, 9, 17 

Board of Regents v. Southworth, 529 U.S. 217 

(2000) ........................................................................................ 

5, 16 

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

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

6, 9 

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

16 

FCC v. Beach Communications, Inc., 508 U.S. 

307 (1993) ................................................................................. 

9 

Glickman v. Wileman Bros. & Elliott, Inc., 521 

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

passim 

Keller v. State Bar, 496 U.S. 1 (1990) ................................ 

4 

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

U.S. 374 (1995) ....................................................................... 

14, 17 

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

(1991) ........................................................................................ 5 

National Endowment for the Arts v. Finley, 

524 U.S. 569 (1998) ................................................................ 

20 

Railway Employees’ Dep’t v. Hanson, 351 U.S. 225 

(1956) ........................................................................................ 9 

(I) 

II 

Cases—Continued: Page 

Rosenberger v. Rector & Visitors, 515 U.S. 819 

(1995) ........................................................................................ 19-20 

Skinner v. Mid-America Pipeline Co., 490 U.S. 

212 (1989) ................................................................................. 

16 

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

1989), cert. denied, 493 U.S. 1094 (1990) ........................... 

16, 19 

Wooley v. Maynard, 430 U.S. 705 (1977) .......................... 

16, 17 

Constitution, statutes and regulations: 

U.S. Const.: 

Amend. I .............................................................................. 

passim 

Amend. V ................................................................................ 

17 

Agriculture Marketing Agreements Act of 1937, 

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

7 

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

7 

Federal Agricultural Improvement and Reform 

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

(7 U.S.C. 7201 et seq.) ........................................................... 

20 

7 U.S.C. 7401(b)(11) (Supp. V 1999) .............................. 

20 

7 U.S.C. 7401(c) (Supp. V 1999) ..................................... 

20 

Mushroom Promotion, Research and Consumer 

Information Act of 1990, 7 U.S.C. 6101 et seq.: 
7 U.S.C. 6101(a)(5) ........................................................... 

10 
7 U.S.C. 6101(b) ................................................................ 
4 

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

7 U.S.C. 6102(2) ................................................................ 
18 

7 U.S.C. 6102(6) ................................................................ 
13 

7 U.S.C. 6102(11) .............................................................. 
13 

7 U.S.C. 6102(12) .............................................................. 
18 

7 U.S.C. 6104(b) ................................................................ 
18 

7 U.S.C. 6104(d)(3) ........................................................... 
18 

7 U.S.C. 6104(g) ................................................................ 
18 

7 U.S.C. 6105 ..................................................................... 
13-14 

7 U.S.C. 6105(a)(2) ........................................................... 
14 

7 U.S.C. 6105(b)(2) ........................................................... 
14 

7 U.S.C. 6110 ..................................................................... 20 

III 

Regulations: Page 

7 C.F.R.: 

Section 916.356 (1999) ...................................................... 
8 

Section 917.459 (1999) ...................................................... 
8 

Section 1209.31(f) .............................................................. 
18 

Section 1209.31(g)(1) ........................................................ 
18 

Section 1209.35(c) ............................................................. 
18 

Miscellaneous: 

136 Cong. Rec. 19,614 (1990) ................................................... 

13 

Economic Research Serv., U.S. Dep’t of Agric., 

Mushrooms: An Economic Assessment of the 
Feasibility of Providing Multiple-Peril Crop 
Insurance (Apr. 28, 1995) (available at <http://www. 
rma.usda.gov/pilots/feasible/txt/mushrooms.txt>) ......... 11 

Food Marketing and Economic Group, Mushroom 

Council Program Effectiveness Review 1999 
(Feb. 2000) .............................................................................. 
12 

H.R. Rep. No. 568, 101st Cong., 2d Sess. (1990) ................. 
10 

Mushroom Council, Let Your Love Mushroom! 
(1994) ........................................................................................ 3 

Research, Promotion, and Consumer Information 

Programs: Hearings Before the Subcomm. on 
Domestic Mktg., Consumer Relations, and 
Nutrition of the House Comm. on Agric., 101st Cong., 
1st Sess. (1989) ........................................................ 

10, 11, 13, 14 

Review of the National Soybean Checkoff Program: 

Hearing Before the Subcomm. on Gen. Farm 
Commodities of the House Comm. on Agric., 
104th Cong., 2d Sess. (1996) ................................................ 19 

REPLY BRIEF FOR THE PETITIONERS 

Respondent suggests only one basis for distinguishing the 
generic advertising program for mushrooms from the ge- 
neric advertising programs for California tree fruits sus- 
tained in Glickman v. Wileman Bros. & Elliott, Inc., 521 
U.S. 457 (1997). In respondent’s view, unless tied to “supply- 
side controls” (Br. 32), such programs are unconstitutional. 
Respondent does not explain why the presence or absence of 
such additional non-speech regulation of the supply of a com- 
modity is relevant to the application of the First Amendment 
to commercial advertising designed to stimulate demand for 
the commodity. And it is not. The Court held in Wileman 
that the generic advertising programs for California tree 
fruits are consistent with the First Amendment because 
they do not restrain a producer from communicating any 
message to any audience, require a producer to engage in 
actual or symbolic speech, or compel a producer to endorse 
or to finance any political or ideological views. See Wileman, 
521 U.S. at 469-470. The generic advertising program in this 
case likewise has none of those adverse effects on producers’ 
freedom of speech. It therefore does not “warrant special 
First Amendment scrutiny.” Id. at 474. 

The mushroom advertising program also does not impli- 
cate the First Amendment for an independent reason: The 
program involves government speech—on a topic selected 
by Congress and through means overseen by the Secretary 
of Agriculture—funded by those whom Congress expected 
would benefit most from the speech. Respondent suggests 
no valid reason why this government program should be 
viewed any differently, with respect to its impact on 
interests protected by the First Amendment, from other 
government programs that are targeted at a particular 

(1) 

2 

industry and that are funded with taxes or user fees imposed 
on that industry. 

I. THE MUSHROOM ADVERTISING PROGRAM IS 
VALID UNDER THE FIRST AMENDMENT 

Respondent principally contends that Wileman turned on 
the comprehensive nature of the marketing orders 
establishing the generic advertising programs for California 
tree fruits, and thus is distinguishable from this case. Br. 21. 
As our opening brief explains, that proposition has scant 
support in Wileman (U.S. Br. 21-24), rests on an erroneous 
premise regarding the extent of regulation of the California 
tree fruit industries (id. at 27-28), and, most importantly, has 
no bearing on the extent to which a generic advertising 
program implicates interests protected by the First 
Amendment (id. at 24-26, 29-31).1 

1. As this Court recognized in Wileman, generic adver- 
tising programs for agricultural commodities are different, in 
three critical respects, from laws that have been held to 
violate the freedom of speech protected by the First 

1 Respondent attempts (e.g., Br. 22) to support that proposition with 
selective quotations from the United States’ briefs and oral argument in 
Wileman. But those quotations, in context, confirm that the United 
States has consistently maintained that the constitutionality of a collective 
advertising program rests not on the presence of additional regulation, but 
on “the nonspeech-related purpose of establishing stable and orderly 
marketing conditions and enhancing returns to growers”—a purpose that, 
depending upon the circumstances of a particular market, the government 
may seek to advance through a generic advertising program or “an array 
of [other] mechanisms.” U.S. Reply Br. at 3 in Wileman, supra, No. 95- 
1184); see Oral Arg. Tr. 13 (relying on the legitimacy of the government’s 
interest in “establishing orderly market conditions” for commodities). 
Indeed, given the number of stand-alone generic advertising programs 
established under federal law (see Pet. 13-14 & n.7), it would have been 
surprising for the government to have urged the Court to sustain the 
programs for California tree fruits under an analysis that would call into 
question the constitutionality of other generic advertising programs. 

3 

Amendment: They “impose no restraint on the freedom of 
any producer to communicate any message to any audience,” 
they “do not compel any person to engage in any actual or 
symbolic speech,” and they “do not compel the producers to 
endorse or to finance any political or ideological views.” 521 
U.S. at 469-470. None of those distinctions is any more, or 
less, true depending upon whether the advertised commod- 
ity is, or is not, regulated in other respects. 

The Court made clear in Wileman that the First Amend- 
ment is not implicated by every law that requires the fund- 
ing of expressive activity. See 521 U.S. at 471-473. The 
Court distinguished decisions, such as Abood v. Detroit 
Board of Education, 431 U.S. 209 (1977), which involved 
assessments to fund expressive and associational activities of 
an inherently “political” or “ideological” nature, such as 
collective bargaining. See 521 U.S. at 472. The Court 
explained that it “cannot be said to engender any crisis of 
conscience” to require producers to fund generic advertising 
for their own commodity. Ibid. For that reason, the Court 
concluded, an agricultural enterprise’s objections to paying 
such assessments are not comparable to those of the 
teachers in Abood, “in which an objection rested on political 
or ideological disagreement with the content of the mes- 
sage.” Ibid.2 

It is irrelevant to that distinction whether or 
2 The Court recognized that producers’ objections to the content of 
particular advertisements, on grounds that they are not in good taste or 
that they suggest that all handlers’ products are the same, did not call into 
question the constitutionality of the generic advertisement program. See 
Wileman, 521 U.S. at 467-468 nn. 10, 11. Similarly, respondent’s objec- 
tions to certain advertising of the Mushroom Council, such as the 1994 
“Let Your Love Mushroom” promotion, do not undermine the consti- 
tutionality of the program. Respondent’s claims that, for example, “[t]he 
Mushroom Council[] suggest[ed] that mushrooms are an aphrodisiac” (Br. 

44) as part of that campaign are both legally irrelevant and factually 
exaggerated. The “suggestion” about which respondent apparently 

4 

not the commodity is also subject to other regulations that 
have nothing to do with any expressive activity. 

The Court also distinguished Abood and similar cases on a 
second, independent ground. The Court explained that those 
cases allow objectors to be assessed even for political or 
ideological activities, as long as those activities are “ ‘ger- 
mane’ to the purpose for which compelled association was 
justified,” such as achieving labor peace. Wileman, 521 U.S. 
at 473 (quoting Keller v. State Bar, 496 U.S. 1, 13 (1990)). 
Thus, although compelled contributions for political or ideo- 
logical speech implicate the First Amendment (whereas 
compelled contributions for commercial advertising do not), 
they do not violate the First Amendment if the speech is 
“germane” to a legitimate government purpose. The Court 
recognized that “the generic advertising of California 
peaches and nectarines is unquestionably germane to the 
purposes of the marketing orders,” ibid., which the Court 
identified as advancing “the producers’ and handlers’ com- 
mon interest in promoting the sale of a particular product” 
and thereby “disposing of their output on favorable terms,” 
id. at 462. That is essentially the same purpose that Con- 
gress articulated in the Mushroom Act. See 7 U.S.C. 
6101(b). A generic advertising program is equally “ger- 
mane” to that purpose whether or not the government is also 
seeking to advance the purpose through other means. Here, 
therefore, the absence of quality, maturity, and packaging 

complains was contained in a brochure, distributed in connection with 
Valentine’s Day, that principally consisted of mushroom recipes; mush- 
room purchasing, cooking, and storage tips; and advice on planning a 
“romantic” meal (e.g., candlelight, flowers, music). The brochure also 
briefly noted, without endorsement, that “[t]he ancient philosopher 
Petronius and many others proclaimed mushrooms as a potent aphrodisiac 
and popular ‘love’ food,” and that “[f]or centuries, legends have attributed 
mushrooms with special mystical powers that cure illness, prolong life and 
enhance sexuality.” We have lodged copies of the brochure with the Court. 

5 

requirements for mushrooms, similar to those for the tree 
fruits in Wileman, has no bearing on the germaneness of the 
generic advertising program to the government’s purpose of 
maintaining and expanding the mushroom market. 

It is unnecessary for the Court to address in this case 
whether the First Amendment is satisfied if the expression 
for which funding is compelled is either non-ideological or 
germane to a valid government purpose, but not both. Here, 
as in Wileman, both requirements are met because “(1) the 
generic advertising of [mushrooms] is unquestionably ger- 
mane to the purposes of the [Mushroom Act and Mushroom 
Order] and, (2) in any event, the assessments are not used to 
fund ideological activities.” Wileman, 521 U.S. at 473.3 

2. Respondent notes (Br. 24-26) several references in the 
Wileman opinion to the “other features of the marketing 

3 As we have explained (U.S. Br. 16-17 n.9), the Court’s use of the 
term “in any event” indicates that, at least in the context of generic adver- 
tisement programs like those in this case and Wileman, the First Amend- 
ment is satisfied if the generic advertising is either germane to the 
government’s purpose or non-ideological. That conclusion is reinforced by 
the structure of Part IV of the Court’s opinion. The Court first concluded 
that the producers did not “have a First Amendment complaint,” because 
their objections to payment of the assessments did not, and could not, 
“rest[] on political or ideological disagreement with the content of the 
message.” 521 U.S. at 472. Then, in a new paragraph introduced with the 
word “[m]oreover,” the Court addressed the germaneness question. Id. at 
472-473. The Court has also suggested in other contexts that the ger- 
maneness of the expressive activity for which assessments are used 
becomes relevant, for First Amendment purposes, only when that activity 
is to some extent political or ideological. See, e.g., Lehnert v. Ferris Fac- 
ulty Ass’n, 500 U.S. 507, 529 (1991) (allowing the use of objecting teachers’ 
contributions to fund portions of publications that, although not germane 
to collective bargaining, were “neither political nor public in nature”). The 
Court’s decision in Board of Regents v. Southworth, 529 U.S. 217 (2000), 
upon which respondent relies (Br. 36-37), is inapposite because the student 
activity fees in that case were used to fund expression that was in many 
instances ideological. 

6 

orders” for California tree fruits. 521 U.S. at 476; see also id. 
at 470, 476. As we have explained (U.S. Br. 21-24), those 
observations are not essential elements of the Court’s First 
Amendment analysis.4 As discussed above (at 2-4), the First 
Amendment concerns that the Court identified as relevant 
to that analysis—whether producers are restrained from 
communicating any message to any audience, required to 
engage in actual or symbolic speech, or compelled to endorse 
or fund political or ideological views, see 521 U.S. at 469-470 
—are unaffected by the existence, or absence, of such addi- 
tional regulatory provisions. The Court’s references to those 
provisions are most naturally read as reflecting the conclu- 
sion that a producer’s obligation to fund a generic advertis- 
ing program for its commodity is no different, for any reason 
relevant to First Amendment interests, from a producer’s 

4 Respondent errs in asserting (Br. 25) that the Court’s core First 
Amendment analysis in Wileman is contained not in Part IV of the 
opinion, but “principally in Part III * * * and in Part V.” As we have 
noted (U.S. Br. 21-22), Part III is an introductory section, which describes 
the scope of the controversy. Significantly, the final paragraph of Part III, 
which discusses “the statutory context” in which the case arose, concludes 
by stating that “[i]t is in this context that we consider whether” the 
generic advertising programs should be reviewed “under the standard 
appropriate for the review of economic regulation or under a heightened 
standard appropriate for the review of First Amendment issues.” 521 
U.S. at 469 (emphasis added). It is in Part IV of the opinion that the Court 
proceeds to its consideration of the question posed. Part V, the other 
section of the opinion on which respondent relies, mentions only one First 
Amendment case, Central Hudson Gas & Elec. Corp. v. Public Serv. 
Comm’n, 447 U.S. 557 (1980), which the Court had already determined in 
Part IV to be inapposite. See 521 U.S. at 469 & n.12, 474 & n.18. Part IV, 
in contrast, considers the relevance of 16 First Amendment cases, and 
concludes with the holding that generic advertising programs do not 
“warrant special First Amendment scrutiny.” Id. at 474. The dissenting 
opinion in Wileman had no difficulty in discerning the portion of the 
majority’s opinion that contains its core First Amendment analysis. See 
id. at 477 (Souter, J., dissenting) (summarizing majority’s analysis). 

7 

obligation to comply with other regulatory requirements 
that Congress might impose for the purpose of promoting 
demand (or controlling supply) of the commodity. It is there- 
fore appropriate to review all such measures under the same 
deferential standard. See id. at 477 (describing the generic 
advertising programs for California tree fruits as “a species 
of economic regulation that should enjoy the same strong 
presumption of validity that we accord to other policy 
judgments made by Congress”). 

3. Respondent does not embrace the court of appeals’ 
rationale for distinguishing Wileman: that the marketing 
orders there conferred on producers “the monopoly powers 
inherent in government control of price and supply,” and 
that the producers could be required “[i]n exchange for such 
power” to fund a generic advertising program. Pet. App. 8a. 
As our opening brief explains (U.S. Br. 27-28), that rationale 
rests on an erroneous premise: The marketing orders in 
Wileman did not, in fact, impose “government control of 
price and supply” (or otherwise vest producers with “mo- 
nopoly powers”), but rather imposed only quality, maturity, 
and packaging requirements.5 

5 As we have noted (U.S. Br. 28-29), the same regulations imposed on 
the California tree fruit industries—or more extensive regulations 
concerning price and supply—could be imposed on the mushroom industry 
in marketing orders issued pursuant to the Agricultural Marketing Agree- 
ments Act of 1937 (AMAA), 7 U.S.C. 601 et seq. The AMAA is applicable, 
with exceptions not relevant here, to “any agricultural commodity,” 
7 U.S.C. 608c(2), including mushrooms. Respondent’s assertion (Br. 28) 
that “[f]ederal law relating to mushroom marketing * * * not only does 
not mandate * * * collective controls on supply, it forbids them,” is 
misleading. The Mushroom Act states merely that “[n]othing in this 
chapter [i.e., the Mushroom Act itself] may be construed to provide for the 
control of production or otherwise limit the right of individual producers 
to produce mushrooms.” 7 U.S.C. 6101(c). Neither the Mushroom Act nor 
any other statute “forbids” the imposition of “collective controls on 
supply” of mushrooms in marketing orders under the AMAA. 

8 

Respondent does, however, attempt a variation on the 
court of appeals’ theme, which proceeds from the (also erro- 
neous) premise that the quality standards in Wileman re- 
sulted in “homogenization” of the fruits to the benefit of pro- 
ducers.6 Respondent asserts (Br. 23-24) that “Wileman 
concludes that the government could, as a related economic 
measure in the same marketing orders, require the produc- 
ers who benefit from such collectivization to contribute to a 
generic advertising program that reflects the characteristics 
of the homogenized product.” Tellingly, respondent cites no 
page in Wileman on which this “conclu[sion]” supposedly 
appears. Nor could respondent do so. Nothing in Wileman 
suggests, much less holds, that producers may be required to 
fund a generic advertising program only when they obtain 
some separate “benefit” from government regulation aside 
from the benefit that they obtain from the generic adver- 
tising program itself. Indeed, the homogenization “benefit” 
that respondent postulates was vigorously disputed by the 
fruit handlers in Wileman, who denied that all California 
tree fruits were “of equal quality,” 521 U.S. at 467 n.10; thus, 
if the Court’s analysis were predicated on a contrary factual 
determination, the Court surely would have said so. 

6 A marketing order that sets minimum quality standards does not 
“homogenize” a commodity, because growers retain the ability to differ- 
entiate their own product, including by competing with respect to quality 
above the minimum standard. The marketing orders in Wileman, more- 
over, left growers free to produce any of the numerous varieties of those 
fruits. See, e.g., 7 C.F.R. 916.356 (1999) (listing 111 varieties of California 
nectarines); 7 C.F.R. 917.459 (1999) (listing 98 varieties of California 
peaches). Indeed, the respondents in Wileman objected to the marketing 
orders on the ground, among others, that generic advertising erroneously 
implied that “all California fruit is the same,” whereas, in fact, “the 
commodities are highly varied” in type and quality. 521 U.S. at 468 n.10; 
see id. at 467 n.11. 

9 

Respondent’s theory is without support not only in 
Wileman itself but also in First Amendment jurisprudence 
generally. This Court’s cases involving compelled payments 
for expressive or associational activity assume that payors 
will receive some benefit from that very activity. See 
Abood, 431 U.S. at 222 (explaining that union-shop arrange- 
ments are “thought to distribute fairly the cost of [negoti- 
ating and administering collective bargaining agreements] 
among those who benefit”). But those cases do not hold that 
payors must also receive some regulatory benefit in addition 
to the benefit they receive from the expressive or associa- 
tional activity. Nor is there any reason to conclude that the 
existence, or absence, of some separate regulatory benefit 
bears on whether, or to what extent, the payor’s First 
Amendment interests have been infringed. 

4. Respondent also suggests (Br. 15-21) that there is not 
a sufficient public or governmental interest to justify the 
Mushroom Act, that the generic advertising program does 
not adequately serve the interest that Congress identified, 
and that Congress did not suitably tailor the Act’s assess- 
ment provisions to avoid “free-rider” concerns. The short 
answer is that, in matters of economic regulation, Congress’s 
choices are entitled to a “strong presumption of validity.” 
Wileman, 521 U.S. at 477; accord, e.g., FCC v. Beach Com- 
munications, Inc., 508 U.S. 307, 313-315 (1993); Railway 
Employees’ Dep’t v. Hanson, 351 U.S. 225, 234 (1956). Re- 
spondent has not rebutted that presumption here. In any 
event, generic advertising program for mushrooms is valid, 
even under a less deferential standard of review.7 

7 Respondent errs in asserting (Br. 16) that the United States has 
somehow “waived” an argument that the generic advertising program for 
mushrooms satisfies the test articulated in Central Hudson, 447 U.S. at 
566, or some other First Amendment test that respondent might urge the 
Court to adopt. The Court made clear in Wileman that “the Central 
Hudson test, which involved a restriction on commercial speech, should 

10 

First, as our opening brief notes (U.S. Br. 2-3), Congress 
reasonably concluded that the Mushroom Act, and the 
generic advertising program that it authorized, would serve 
an important interest: “the maintenance and expansion of 
existing markets and uses, and the development of new 
markets and uses, for mushrooms”—an interest that Con- 
gress deemed “vital to the welfare of producers,” other 
members of the industry, and “the agricultural economy of 
the Nation.” 7 U.S.C. 6101(a)(5); see Wileman, 521 U.S. at 
476 (noting “legitima[cy]” of Congress’s purpose of “sti- 
mulat[ing] consumer demand for an agricultural product”). 
The record developed by Congress with respect to the 
Mushroom Act demonstrated the need to “increase the 
stability of the mushroom market.” H.R. Rep. No. 568, 101st 
Cong., 2d Sess. 45 (1990). For example, Members of Con- 
gress believed it crucial to the domestic mushroom industry 
to expand the market for fresh mushrooms, because the 
market for mushrooms to be used in canning had been 
“practically * * * destroyed” as a result of dramatic in- 
creases in imports of canned mushrooms. Research, Promo- 
tion, and Consumer Information Programs: Hearings Be- 
fore the Subcomm. on Domestic Mktg., Consumer Relations, 
and Nutrition of the House Comm. on Agric., 101st Cong., 
1st Sess. 81 (1989) (Mushroom Act Hearings) (Rep. Schulze); 
accord id. at 82 (Rep. Panetta). Congress was also made 
aware that per capita mushroom consumption in the United 
States was less than half that in Canada, Great Britain, and 
the Netherlands, see H.R. Rep. 568, supra, at 45, which 
suggested the desirability of “unit[ing] the industry to 

[not] govern a case involving the compelled funding of speech.” 521 U.S. 
at 474 n.18; accord id. at 469 & n.12. There was thus no reason in this case 
(as there was in Wileman, where that question had not yet been resolved, 
and where the court of appeals relied on Central Hudson) to make a 
separate argument that the generic advertising program satisfies the 
Central Hudson test. 

11 

provide the critical mass needed to initiate beneficial 
research and consumer information efforts.” Mushroom Act 
Hearings 87 (Rep. Panetta); see also id. at 78 (Rep. Schulze) 
(noting that “[a]s separate entities, the smaller growers 

* * * have no vehicle for getting this information out to the 
public”).8 
Second, Congress also reasonably concluded that a generic 
advertising program would advance the governmental 
interest in strengthening the mushroom industry. Congress 
enacted the Mushroom Act against the backdrop of similar 
generic advertising programs already in existence for other 
agricultural commodities. If such programs had not been 
effective to maintain and expand markets, then Congress, 
together with members of the mushroom industry, would not 
have urged adoption of the Mushroom Act. In practice, 
moreover, the generic advertising program has proven 
effective in maintaining and expanding the mushroom 
market. As our opening brief notes (U.S. Br. 6 & n.6), 
growers and importers subject to assessments under the 

8 The validity of Congress’s interest in strengthening the mush- 
room market is not, as respondent suggests (Br. 30), undermined by the 
distinctive characteristics of mushrooms or their cultivation. For 
example, the mere fact that mushrooms grow indoors in a controlled 
environment does not insulate mushroom producers from many 
of the same “production perils” that affect producers of other agricul- 
tural commodities, including disease, insect damage, and ex- 
tremes of weather (which can “damag[e] the mushroom house,” 
“make[] controlling the inside climate difficult,” and “interfere with 
compost production”). Economic Research Serv., U.S. Dep’t of Agric., 
Mushrooms: An Economic Assessment of the Feasibility of Providing 
Multiple-Peril Crop Insurance 24-28 (Apr. 28, 1995) (available at 
<http://www.rma.usda .gov/pilots/feasible/txt/mushrooms.txt>); see 
also Mushroom Act Hearings 105 (chairman of mushroom producers’ 
organization explaining that “[o]ur crops are subject to problems as most 
of agriculture is from disease or pests or strains that lose their integrity, 
problems with labor,” etc.). 

12 

Mushroom Act voted overwhelmingly in a 1998 referendum 
to continue the generic advertising program, thereby ex- 
pressing the industry’s consensus that the program is 
serving its purpose. See Wileman, 521 U.S. at 476 (“At least 
a majority of the producers in each of the markets in which 
such advertising is authorized must be persuaded that it is 
effective, or presumably the programs would be 
discontinued.”).9 Moreover, an econometric study conducted 
by an independent research organization has since concluded 
that the activities of the Mushroom Council have “clearly 
had a consistent and significant positive impact on the 
overall demand for fresh mushrooms in the US.” Food 
Marketing and Economics Group, Mushroom Council 
Program Effectiveness Review 1999, at 7 (Feb. 2000) (copies 
lodged with the Court). 

10 

9 Respondent claims (Br. 18-19) that it “would not benefit” from the 
greater demand for mushrooms generated by the Mushroom Council’s 
activities, because “increased supplies from competitors will preclude 
[respondent] from increasing its sales or benefiting from higher prices.” It 
is not apparent, however, why respondent could not increase its supplies 
along with its competitors. In any event, respondent acknowledges that 
other mushroom producers, even if not respondent itself, increase their 
production of mushrooms in response to increases in demand—conduct 
that would be economically rational only if such increased production was 
profitable for those producers (i.e., if the marginal benefits exceeded the 
marginal costs). That is precisely sort of benefit to the mushroom indus- 
try that Congress sought to achieve in the Mushroom Act. 

10 Respondent quotes (Br. 20) from a 1996 administrative law judge’s 
opinion (which was subsequently overturned in light of Wileman) that the 
generic advertising program “has not been shown to directly advance the 
government’s interest in stimulating and expanding the mushroom 
industry.” But respondent omits the ALJ’s reason for arriving at that 
conclusion: that the program “cannot be measured econometrically 
because the program is relatively new, and several years’ data are 
necessary to conduct a complete analysis.” J.A. 95. As noted in the text, 
such an econometric study now has been conducted. 

13 

Third, Congress reasonably structured the assessment 
provisions of the Mushroom Act to address concerns about 
“free riders.” Congress was made aware that voluntary 
generic advertising programs in the mushroom industry had 
proved unworkable because some producers declined to 
contribute. See Mushroom Act Hearings 95-96 (testimony of 
president of American Mushroom Institute). 

11 Congress’s 
decision to exempt the smallest producers and importers 
does not, as respondent suggests (Br. 16-17), undermine the 
validity of Congress’s “free-rider” concerns. See 7 U.S.C. 
6102(6) and (11) (defining “importer” and “producer” as 
those who import or produce more than 500,000 pounds of 
mushrooms a year). Congress could reasonably conclude 
that the small sums that would be collected from small pro- 
ducers and importers would not warrant the added admini- 
strative and enforcement effort that would be entailed. See 
136 Cong. Rec. 19,614 (1990) (colloquy between Sen. Fowler 
and Sen. Thurmond articulating that reason for a similar ex- 
emption). For example, at the current assessment rate of 
one-quarter cent per pound, a grower that produced 500,000 
pounds of mushrooms would pay only $1250 annually. 

Moreover, the referenda provision of the Mushroom Act 
takes into account the greater contribution of larger mush- 
room producers to the generic advertising program. See 7 

11 Respondent suggests (Br. 16) that “free rider” concerns require that 
producers be granted a credit against the assessment for their own 
advertising. But the marketing orders in Wileman did not provide such 
credits. Respondent’s argument also disregards the fact that generic 
advertising, which is designed to maintain or expand the market for a 
commodity, serves a different purpose from individual advertising, which 
is designed primarily to increase one producer’s share of the market. See 
Wileman, 521 U.S. at 475 (“Independent advertising would be primarily 
motivated by the individual competitor’s interest in maximizing its own 
sales, rather than in increasing the overall consumption of a particular 
commodity.”). 

14 

U.S.C. 6105. Producers and importers that are exempt from 
assessments are not entitled to participate in referenda to 
approve the establishment or continuation of the program. 
Moreover, a majority for purposes of such referenda is based 
not only on the number of producers and importers voting, 
but also on the volume of mushrooms produced or imported 
by those voting, 7 U.S.C. 6105(a)(2) and (b)(2), thereby 
assuring that producers and importers who pay relatively 
small assessments do not dominate a referendum. 

12 

II. THE MUSHROOM ADVERTISING PROGRAM 
IS INDISTINGUISHABLE FROM TAXPAYER- 
FUNDED GOVERNMENT SPEECH PROGRAMS 
THAT RESPONDENT CONCEDES WOULD BE 
CONSTITUTIONAL 

1. As respondent acknowledges (Br. 40-42), this Court 
has discretion to consider whether the Mushroom Act and 
Mushroom Order establish a program of government speech, 
and thus are not subject to First Amendment constraints on 
that additional ground. That argument, 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). 

13 

12 Respondent also complains (Br. 18) about a supposed “regional ‘free- 
riding’ effect,” i.e., that some of its assessments are used to finance pro- 
motional activities outside the markets in which it does business. But that 
is a consequence of a national generic advertising program, which Con- 
gress, at the suggestion of the Department of Agriculture (see Mushroom 
Act Hearings 127), decided was preferable to regional programs. There is 
no record support for respondent’s assertion (Br. 18 n.13) that the 
Mushroom Council’s programs are “targeted to regions where branded 
advertising has not already raised consumption levels.” 

13 That question is “[w]hether the assessments imposed by the [Mush- 
room Act] * * * on members of the mushroom industry for advertising 
programs designed to support the industry violate the First Amendment.” 
Pet. I. 

15 

Of course, if the Court sustains the generic advertising 
program for mushrooms under Wileman, the Court need not 
consider the government speech issue. Otherwise, however, 
the Court could avoid considerable disruption of that pro- 
gram and other such programs by resolving the government 
speech issue in this case. The question here, as in Lebron, is 
an essentially legal one that does not require factual develop- 
ment. 

14 The issue has been fully briefed by the parties, and 
may appropriately be decided by the Court. 

2. Respondent concedes (Br. 43) that Congress could 
constitutionally establish the same sort of generic advertis- 
ing program for mushrooms if the program were financed 
though “general tax revenues.” Respondent identifies no 
reason relevant to First Amendment interests why Con- 
gress cannot instead fund the program through a tax, or user 
fee, that is assessed against the very persons who benefit 
most from the program. 

15 As we have noted (U.S. Br. 42-43 

14 Contrary to respondent’s suggestion (Br. 42 n.36), our footnote 
citation to a newspaper article about the generic advertising program for 
pork was not offered as “evidence” on the government speech issue. Nor 
do we agree with respondent’s suggestion (ibid.) that the litigation over 
the pork referendum—which arose out of disputes over such issues as 
whether a sufficient number of valid signatures had been obtained on 
petitions seeking the referendum and whether the Secretary could 
conduct a referendum in the absence of such signatures—demonstrates 
that democratic controls over generic advertising programs are 
ineffective. It demonstrates only that the election process in a democracy 
does not always function smoothly. 

15 For that reason, the mushroom advertising program is unlike the 
government program hypothesized by respondent (Br. 44) that would 
require “the nation’s 300 leading competitive runners to pay a special 
assessment to finance a costly scheme by the Surgeon General to 
advertise jogging’s benefits.” In that instance, the advertising program 
would benefit not the “competitive runners” who were required to pay for 
it, but the more sedentary persons who might be induced to begin jogging. 

16 

& n.28), user fees are an accepted means by which the 
government may recover the costs of its programs or serv- 
ices, including those relating to the exercise of First Amend- 
ment rights. See, e.g., Skinner v. Mid-America Pipeline Co., 
490 U.S. 212, 215 (1989) (noting statutory trend “to make 
various federal regulatory programs partially or entirely 
self-financing”); Cox v. New Hampshire, 312 U.S. 569, 576- 
577 (1941) (a State may require a “reasonable” fee for a 
parade license to compensate local government for admini- 
strative and law-enforcement expenses); cf. Board of Re- 
gents v. Southworth, 529 U.S. 217, 229 (2000) (noting po- 
tential applicability of the government speech doctrine to 
programs of a state university “financed by tuition dollars,” 
a form of use fee imposed on university students). 

As respondent observes (Br. 44-45), the Third Circuit in 
United States v. Frame, 885 F.2d 1119, 1132-1133 (1989), 
cert. denied, 493 U.S. 1094 (1990), concluded that, although 
the question was “a close one,” the similar generic advertis- 
ing program for beef did not involve government speech. 

16 

The court deemed the government speech doctrine inappli- 
cable because of the “close nexus between the individual 
[upon whom the assessment was imposed] and the message 
funded,” suggesting that the situation “resemble[d]” those in 
Abood, supra, and Wooley v. Maynard, 430 U.S. 705 (1977). 
Frame, 885 F.2d at 1132-1133. But there is no basis in those 
cases, or in any of this Court’s other First Amendment cases, 
to conclude that whether or not a government program in- 
volves “government speech” turns upon the particular 

In any event, such a program, whether sensible or not, would not present 
any obvious First Amendment problems under this Court’s cases. 

16 The Third Circuit’s discussion of the government speech question 
was unnecessary to its holding in Frame, which concluded, applying strict 
scrutiny, that the generic advertising program did not violate the First 
Amendment. See 885 F.2d at 1133-1137. 

17 

mechanism chosen by the government to fund that speech. 
Abood did not present any question of government speech; 
the case instead involved assessments for expressive and 
associational activity by a union. See Abood, 431 U.S. at 259 

n.13 (Powell, J., concurring) (“[c]ompelled support of a pri- 
vate association is fundamentally different from compelled 
support of government”). Wooley was concerned not with 
whether an individual could be required to fund the State’s 
“Live Free or Die” message, but with whether an individual 
could be required to “display[] it on his private property.” 
430 U.S. at 713; cf. id. at 721 (Rehnquist, J., dissenting) 
(assuming that the State could “erect a multitude of bill- 
boards, each proclaiming ‘Live Free or Die,’ and tax all 
citizens for the cost of erection and maintenance”). And both 
Abood and Wooley, in contrast to this case, involved the 
rights of individuals, as opposed to commercial entities, with 
respect to activity of an ideological, as opposed to com- 
mercial, nature. 

3. Respondent does not seriously dispute that the Mush- 
room Council satisfies the three criteria upon which this 
Court relied in Lebron to conclude that Amtrak is “part of 
the Government for purposes of the First Amendment,” and 
thus is subject to the constraints of the First Amendment 
when it restricts private speech. See Lebron, 513 U.S. at 400 
(when “the Government 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”). Nor 
does respondent offer any persuasive reason why the Lebron 
criteria are not equally applicable in determining whether 
the Mushroom Council is “part of the Government for pur- 
poses of the First Amendment” such that its speech con- 
stitutes government speech. 

18 

Respondent does argue (Br. 46), however, that the Mush- 
room Council’s speech is not government speech because 
“ ‘public officials’ do not ‘control operation’ of the [Mush- 
room] Council.” Respondent is wrong. As we have ex- 
plained (U.S. Br. 34-40), Congress and the Secretary do 
exercise significant control over the Mushroom Council’s 
speech and over its operations generally. 

Congress has determined the essential message to be 
expressed by the Mushroom Council: speech to “enhance the 
image or desirability of mushrooms, including paid advertis- 
ing,” 7 U.S.C. 6102(12), and to “assist consumers and other 
persons in making evaluations and decisions regarding the 
purchase, preparation, and use of mushrooms,” 7 U.S.C. 
6102(2). Congress also determined how such speech is to be 
funded. See 7 U.S.C. 6104(g). Congress vested the Secre- 
tary with the responsibility of appointing all members of the 
Council, see 7 U.S.C. 6104(b), a responsibility that is not the 
mere “formal[ity]” that respondent claims (Br. 46). See 7 
C.F.R. 1209.31(f) (requiring that two nominations be sub- 
mitted to the Secretary for each open seat); 7 C.F.R. 
1209.31(g)(1) (“The Secretary may reject any nominee 
submitted.”). The Secretary has the authority to remove 
members from the Council—not, as respondent asserts (Br. 

46), only in “exceptional circumstances,” but whenever the 
Secretary determines that “such member’s continued service 
would be detrimental to the achievement of the purposes of 
the Act.” 7 C.F.R. 1209.35(c). And Congress prohibited the 
Council from implementing any “plan or project of pro- 
motion, research, consumer information, or industry in- 
formation, or budget” before its approval by the Secretary. 7 
U.S.C. 6104(d)(3). 

17 

17 The Mushroom Council is described in its Independent Auditors’ 
Report as “an instrumentality of the United States Department of Agri- 
culture.” J.A. 225; see J.A. 234 (“The Council is considered an instru- 

19 

Indeed, authorities cited by respondent recognize, with 
respect to similar generic advertising programs, that “the 
amount of government oversight of the program[s] is con- 
siderable.” Frame, 885 F.2d at 1128; see id. at 1132 (noting 
that “the Secretary makes the final decisions on all projects 
funded under the [Beef] Act”). The Administrator of the 
Agricultural Marketing Service, in congressional testimony 
respondent cites (Br. 49), confirmed the extensive govern- 
ment oversight of such programs: 

USDA plays an active role in the oversight of the 
soybean program to ensure that it is administered by the 
Board in accordance with the authorizing legislation and 
Order. * * * * We approve budgets and projects, 
attend all meetings of the Board and its principal 
committees, approve board bylaws and amendments or 
additions to the budget, including any major shifting of 
program funds from one major area to another. We re- 
quire information as to the objectives and strategy in 
each major program area, such as research and pro- 
motion, and ensure that all Board expenditures are in 
accordance with the Act and the Order and with USDA 
approved contracts and agreements. 

Review of the National Soybean Checkoff Program: Hearing 
Before the Subcomm. on Gen. Farm Commodities of the 
House Comm. on Agric., 104th Cong., 2d Sess. 65 (1996). 

18 

mentality of the U.S. Department of Agriculture which conducts the 
administrative oversight of its activities.”). That characterization, which 
is consistent with the statutory and regulatory scheme, refutes any 
contrary implication that might arguably be drawn from the isolated 
“press accounts” cited by respondent (Br. 47). 

18 Such extensive oversight by public officials of a speaker’s operations 
may not be necessary in order for its speech to constitute government 
speech. See, e.g., Rosenberger v. Rector & Visitors, 515 U.S. 819, 833 
(1995) (“[W]e have permitted the government to regulate the content of 

20 

Finally, respondent incorrectly asserts (Br. 49) that 
“U.S.D.A. ‘is not responsible for evaluating program effec- 
tiveness’ ” quoting a report that predates the enactment of 
the FAIR Act in 1996. See U.S. Br. 7-8. The FAIR Act re- 
quires each commodity board to authorize and fund, at least 
every five years, “an independent evaluation of the effec- 
tiveness of [its] generic commodity promotion program” for 
submission to the Secretary. 7 U.S.C. 7401(c) (Supp. V 
1999). The FAIR Act specifies that those evaluations “will 
assist Congress and the Secretary of Agriculture in ensuring 
that the objectives of the programs are met,” 7 U.S.C. 
7401(b)(11) (Supp. V 1999), thus making clear that the Secre- 
tary, together with Congress, is “responsible for evaluating 
program effectiveness.” See 7 U.S.C. 6110 (“The Secretary 
shall, whenever the Secretary finds that the [Mushroom] 
order or any provision of the order obstructs or does not 
tend to effectuate the declared policy of this chapter [i.e., the 
Mushroom Act], terminate or suspend the operation of such 
order or provision.”). 

* * * * * 

For the foregoing reasons and those stated in our opening 
brief, the judgment of the court of appeals should be re- 
versed. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

APRIL 2001 

what is or is not expressed when it is the speaker or when it enlists 
private entities to convey its own message.”) (emphasis added); see also 
National Endowment for the Arts v. Finley, 524 U.S. 569, 598 (1999) 
(Scalia, J., concurring) (“[I]t 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) favored point of view by 
achieving it directly * * *; or by advocating it officially * * *; or by giving 
money to others who achieve or advocate it.”) (emphasis added).