GERAWAN FARMING, INC., Plaintiff and Appellant,
v.
William J. LYONS, Jr., as Secretary, etc., et al., Defendants and Respondents.
Supreme Court of California.
*474 Brian C. Leighton, Clovis; Mayer, Brown & Platt, Michael W. McConnell, Chicago, IL., and Sharon Swingle, Washington, Dist. of Columbia, for Plaintiff and Appellant.
Donald Lescoulie, Fresno, and James A. Moody, Washington, Dist. of Columbia, for Matsui Nursery, Inc., Delano Farms, Inc., the Susan Neill Company, Country Eggs, Inc., Rosemary Farms, Inc., Duarte Nursery, Inc., Bidart Bros., Inc., and Britton-Konynenburg Partners as Amici Curiae on behalf of Plaintiff and Appellant.
Law Offices of Manuel S. Klausner, Los Angeles, Manuel Klausner and Erik S. Jaffe, Washington, Dist. of Columbia, for the Center for Individual Freedom as Amicus Curiae on behalf of Plaintiff and Appellant.
Thomas E. Campagne & Associates and Jeffrey C. Heeren, Fresno, for Wileman Bros. & Elliott, Inc., as Amicus Curiae on behalf of Plaintiff and Appellant.
Daniel J. Popeo, R. Shawn Gunnarson; Cadwalader, Wickersham & Taft, Steven G. Brody, New York, NY, Christine P. Jackson; and Susan Liebeler for Washington Legal Foundation as Amicus Curiae on behalf of Plaintiff and Appellant.
Bill Lockyer, Attorney General, Roderick E. Walston and Richard Frank, Chief Assistant Attorneys General, Charles W. Getz IV and Mary E. Hackenbracht, Assistant Attorneys General, Richard M. Thaihammer, Ellen M. Peter, Edna Walz and Tracy L. Winsor, Deputy Attorneys General, for Defendants and Respondents.
*475 Jennifer Friesen; Dowling, Aaron & Keeler, Dale Ikeda and Philip D. Kopp, Fresno, for the California Asparagus Commission, California Cut Flower Commission, California Pepper Commission and the California Tomato Commission as Amici Curiae on behalf of Defendants and Respondents.
Baker, Manock & Jensen, Kendall L. Manock, Robert D. Wilkinson, Linda B. Othman, Fresno, and John A. Bezmalinovic for the California Table Grape Commission and the California Stone Fruit Coalition as Amici Curiae on behalf of Defendants and Respondents.
Kahn, Soares & Conway, George H. Soares, Dale A. Stern, Sacramento, and Robert S. Hedrick for the California Apple Commission, California Avocado Commission, California Date Commission, California Egg Commission, California Forest Products Commission, California Grape Rootstock Improvement Commission, California Kiwifruit Commission, California Pistachio Commission, California Rice Commission, California Strawberry Commission, California Walnut Commission and Lodi-Woodbridge Winegrape Commission as Amici Curiae on behalf of Defendants and Respondents.
Jonathan P. Hiatt, James B. Coppress; Altshuler, Berzon, Nussbaum, Berzon & Rubin and Scott A. Kronland, San Francisco, for the American Federation of Labor and Congress of Industrial Organizations as Amici Curiae on behalf of Defendants and Respondents.
Manatt, Phelps & Phillips, Catherine A. Conway and Vincent M. Waldman, Los Angeles, for Sun-Maid Growers of California as Amicus Curiae on behalf of Defendants and Respondents.
Marie M. Moffat, Lawrence C. Yee, Dina E. Goldman, San Francisco; Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Steven L. Mayer, Todd E. Thompson and Margaret W. Rosequist, San Francisco, for the State Bar of California as Amicus Curiae on behalf of Defendants and Respondents.
MOSK, J.
The First Amendment to the Constitution of the United States, one of the provisions of the Bill of Rights, states: "Congress shall make no law ... abridging the freedom of speech, or of the press ...." (U.S. Const., 1st Amend.)
Article I of the Constitution of the State of California, entitled the Declaration of Rights, states in subdivision (a) of section 2: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
In Glickman v. Wileman Brothers & Elliott, Inc. (1997)
In this cause, itself a case of first impression, we consider whether a marketing order issued by the Secretary of Food and Agriculture of the State of California implicates any right to freedom of speech under either the First Amendment or article I by compelling funding of generic advertising.
As we shall explain, we conclude that the marketing order in question does not implicate any right to freedom of speech under the First Amendment, but does indeed implicate such a right under article I.
I
The background to this actionhistorical, statutory, and administrativeis as follows.
*476 A
In the course of the Great Depression, Congress enacted the Agricultural Marketing Agreement Act of 1937 or the AMAA. (See generally Act of June 3, 1937, ch. 296, 50 Stat. 246 et seq., as amended, codified at 7 U.S.C. § 601 et seq.)
The AMAA declared, as one of Congress's policies, the establishing and maintaining of orderly marketing conditions for agricultural commodities in order to raise and support prices for their producers.
To effectuate this policy, the AMAA authorized the Secretary of Agriculture of the United States to enter into "marketing agreements," which are contract-like arrangements with the producers and handlers of agricultural commodities concerning marketing matters, and provided that the making of any such agreement should not be held violative of any federal antitrust law.
To the same end, the AMAA also authorized the Secretary of Agriculture to issue "marketing orders," which are regulations governing marketing matters for the producers and handlers of agricultural commodities. It provided for participation in the administration of such orders by the regulated producers and handlers themselves. It substantially restricted the terms of such orders generally to the limitation on total quantity marketed, the allotment of amounts for purchase, the allotment of amounts for marketing, the determination of the existence and extent of any surplus, the establishment of reserve pools, and, impliedly, the institution of grading and standards and the conduct of research. It also mandated that the regulated producers and handlers had to contribute funds to cover related expenses. It authorized the secretary to terminate as well as issue such orders. It generally provided that no such order could become effective unless approved or favored, as specified therein, by the regulated producers. Similarly, it generally provided that no such order could remain effective unless favored, as specified therein, by the regulated producers. It authorized the secretary to conduct referenda, expressly with regard to the coming into effect of such an order and impliedly with regard to its remaining in effect. In light of features of this sort, the mechanism of regulation that such an order sets up is, essentially, one of "self-regulation" by the regulated producers and handlers. (H.R.Rep. No. 99-271, 1st Sess., pt. 1, pp. 195-196 (1985), reprinted in 1985 U.S.Code Cong. & Admin.News, p. 1299.)
Since 1937, Congress has amended the AMAA on several occasions. As a general matter, the AMAA has retained the core of the provisions described above, but has expanded beyond their periphery. Notably, although it continues to restrict the terms of marketing orders for agricultural commodities that it authorizes the Secretary of Agriculture to impose, it now permits more than it did originally. Specifically, it today allows, among other terms, the undertaking of research and development projects, encompassing, for plums and 25 other specified commodities,[1] "any form of marketing promotion including paid advertising," "the expense of which is "to be paid from funds collected pursuant to the marketing order" in question. (7 U.S.C. § 608c(6)(I).) It first allowed a term of this sort, albeit not extending to advertising, in 1954. It first allowed one extending to advertising for a single specified commodity in 1962. It then did the same for 14 specified commodities, including plums, in 1965. It did likewise for the remaining 11 specified commodities, one or *477 more at a time, in 1970, 1971, 1978, 1980, 1983, 1988, and 1999. From all that appears, and plainly with respect to plums (see H.R.Rep. No. 89-846, 1st Sess., pp. 2-4 (1965), reprinted in 1965 U.S.Code Cong. & Admin. News, pp. 4143-4144), it has allowed terms extending to advertising in order to satisfy requests made by, among others, the regulated producers themselves.
Marketing Order No. 917 (see generally 7 C.F.R. § 917 (2000)), entitled the California Tree Fruit Agreement, was issued by the Secretary of Agriculture pursuant to the AMAA in various years in its various subparts, deriving ultimately from Marketing Order No. 36, issued in 1939. It presently applies to pears and peaches, and formerly applied to plums as well. It provides for the establishment of a "Control Committee," whose members are drawn, largely if not exclusively, from the regulated producers and handlers themselves. It provides too for a "Commodity Committee" for each of the fruits, which is effectively filled with or controlled by the regulated producers themselves. In addition, and among other things, it provides for the Control Committee's administration of its terms. It also provides for each Commodity Committee's undertaking of research and development projects, encompassing "any form of marketing promotion including paid advertising," "the expenses of which "shall be paid from funds collected pursuant to" assessments imposed on the regulated handlers by the secretary, on the committee's recommendation. (7 C.F.R. § 917.39 (2000) [presently, for pears and peaches]; 7 C.F.R. former § 917.39 (1991) [formerly, for plums as well]; see 7 C.F.R. § 917.37 (2000) [presently, for pears and peaches]; 7 C.F.R. former § 917.37 (1991) [formerly, for plums as well].) It has so provided for pears and peaches since 1976. It had done the same for plums since 1971. It sets out specific regulations regarding both fruit containers and packs.
Marketing Order No. 917 was terminated by the Secretary of Agriculture in 1991 as to plums because the results of a referendum conducted that year "demonstrated a lack of producer support ...." (56 Fed. Reg. 23773 (May 24, 1991).)
B
Also in the course of the Great Depression, indeed within days after Congress enacted the Agricultural Marketing Agreement Act of 1937 or the AMAA, the Legislature enacted the California Marketing Act of 1937 or the CMA. (See generally Stats.1937, ch. 404, § 1, p. 1329 et seq., as amended, codified at Food & Agr.Code, § 58601 et seq.)
Like the AMAA, the CMA declared, as one of the Legislature's policies, the establishing and maintaining of orderly marketing conditions for agricultural commodities in order to raise and support prices for their producers.
Also like the AMAA, the CMA authorized the Director of Agriculture of the State of Californiawho is now styled the Secretary of Food and Agriculture (Food & Agr.Code, § 50)to enter into "marketing agreements," i.e., contract-like arrangements with the producers and handlers of agricultural commodities concerning marketing matters, which would be binding, expressly, only on those signatory thereto, and would be exempt, impliedly, from all state antitrust laws.
Again like the AMAA, the CMA authorized the Director of Agriculture to issue "marketing orders," i.e., regulations governing marketing matters for the producers and handlers of agricultural commodities, which did the following: provided for participation in the administration of such orders by the regulated producers and handlers themselves; substantially restricted the terms of such orders generally to, among others, the determination of the existence and extent of any surplus, the limitation on total quantity marketed, the allotment of amounts for purchase, the *478 allotment of amounts for marketing, the regulation of periods for marketing, the establishment of reserve pools, the institution of grading and standards, and, impliedly, the conduct of research; and mandated that the regulated producers and handlers had to contribute funds to cover related expenses. It contained provisions relating to the termination of such orders, their coming into effect, and their remaining in effect, and, impliedly, the conduct of referenda. In light of features of this sort, the mechanism of regulation that such an order sets up is, essentially, self-regulation by the regulated producers and handlers themselves. (See Voss v. Superior Court (1996)
But, unlike the AMAA, the CMA authorized the Director of Agriculture to impose, among the terms of such a marketing order, the establishment of "plans for advertising and sales promotion to create new or larger markets for agricultural commodities," specifically, plans that are "directed toward increasing the sale of such commodity without reference to a particular brand," etc. (Stats.1937, ch. 404, § 1, pp. 1335-1336.) It mandated that the regulated producers and handlers subject to a marketing order with such a term had to contribute funds to cover related expenses.
Since 1937, the Legislature has amended the CMA on several occasions. As a general matter, the CMA has retained the core of the provisions described above, but has expanded beyond their periphery. Such expansion, however, is not worthy of note here.
In 1991, after the federal California Tree Fruit Agreement was terminated as to plums, there was no federal or state marketing agreement or order in place. The Secretary of Food and Agriculture then entered into a marketing agreement pursuant to the CMA with about 80 percent of the producers (apparently) and handlers of the fruit, evidently at their instigation, entitled the California Plum Marketing Agreement.
In 1992, the California Plum Marketing Agreement went into effect. It established a Plum Advisory Board, comprising producer-handlers and handlers, and authorized it to conduct research concerning plums and to engage in advertising, sales promotion, and market development. It was binding on its signatories only. It purportedly had several weaknesses, including an inability to require full participation, obtain adequate funding, and prevent free riders, and also an absence of provisions for quality standards and inspections.
In 1993, a group of plum producers and handlers, which called itself the Stone Fruit Coalition, approached the Secretary of Food and Agriculture, and requested him to issue a marketing order pursuant to the CMA, specifically a marketing order that the group itself proposed. (Voss v. Superior Court, supra,
In 1994, the Secretary of Food and Agriculture issued a marketing order pursuant to the CMA, entitled the California Plum Marketing Program, which conformed to the one that the Stone Fruit Coalition proposed. (See Voss v. Superior Court, supra, 46 Cal.App.4th at pp. 904-906,
The California Plum Marketing Program provides for the establishment of a California Plum Marketing Board, which is virtually filled with, and totally controlled by, producers and/or producer-handlers of the fruit. In addition, and among other things, it provides for the board's administration of its terms. It also provides for the board's undertaking of activities extending to research; advertising, specifically generic advertising, along with sales promotion and market development; and the institution and implementation of quality standards and inspections. It provides as well for the board's assessment of funds from producers for expenses related to the foregoing activities, at a rate that may not *479 exceed $0.20 per 28-pound box, including $0.02 for research, $0.11 for generic advertising along with sales promotion and market development, and $0.07 for quality standards and inspections.
II
On October 31, 1994, Gerawan Farming, Inc., filed a complaint for declaratory and injunctive relief in the Superior Court of Tulare County against, among others, the California Secretary of Food and Agriculture in his official capacity, originally Henry J. Voss, then Ann M. Veneman, now William J. Lyons, Jr. It challenged the California Plum Marketing Program, which was issued by the secretary pursuant to the CMA, under provisions including the free speech clause of the First Amendment to the United States Constitution and the free speech clause of subdivision (a) of section 2 of article I of the California Constitution. It alleged facts reflecting the historical, statutory, and administrative background, as set out above, relating to the AMAA and Marketing Order No. 917 and to the CMA and the California Plum Marketing Program. It also alleged facts, liberally construed, to the following effect: It produces and handles plums; plums constitute a lawful product; it has developed, and uses, a brand for marketing purposes; it engages in commercial speech about its own branded plums through advertising; its message is not false or misleading; nonetheless, the California Plum Marketing Program compels it to fund commercial speech in the form of generic advertising about plums as a commodity against its will, and does so to some appreciable extent; the compulsion of funding reduces the amount of money available for its own advertising; the generic advertising, otherwise undescribed, "reflect[s] ... viewpoints," political and ideological as well as commercial, "to which it does not subscribe," and indeed with which it "vehemently disagrees."
Subsequently, in Glickman, a majority of the United States Supreme Court, in an opinion by Justice Stevens, concluded that Marketing Order No. 917, which was issued by the United States Secretary of Agriculture pursuant to the AMAA, did not implicate the right of parties including Gerawan to freedom of speech under the First Amendment by compelling funding of generic advertising. (Glickman v. Wileman Brothers & Elliott, Inc., supra, 521 U.S. at pp. 467-477,
*480 The Secretary of Food and Agriculture moved for judgment on the pleadings on the ground that Gerawan's complaint did not allege facts sufficient to constitute a cause of action.[2] By order, the superior court granted the motion, but with leave to amend.
Gerawan proceeded to file an amended complaint. It challenged the California Plum Marketing Program under provisions including article I's free speech clause. It again alleged facts reflecting the historical, statutory, and administrative background, as set out above. Expanding somewhat the facts that it alleged previously, it also alleged facts, liberally construed, to the following effect: It produces and handles plums; plums constitute a lawful product; it has developed, and uses, a brand for marketing purposes; it engages in commercial speech about its own branded plums through advertising; its message is not false or misleading; nonetheless, the California Plum Marketing Program compels it to fund commercial speech in the form of generic advertising about plums as a commodity against its will, and does so in excess of $80,000 per year; the compulsion of funding reduces the amount of money available for its own advertising; it "disagrees" with, and indeed "abhors," the generic advertising, otherwise undescribed, both on political and ideological grounds, as "socialistic" and "collectivist," and also on commercial grounds, as "grouping all ... plums as though they are the same" and as "embarrassingly silly, idiotic and/or totally ineffective."
The Secretary of Food and Agriculture moved for judgment on the pleadings on the ground that Gerawan's amended complaint, like its original one, did not allege facts sufficient to constitute a cause of action. By order, the superior court granted the motion, this time without leave to amend. It stated that Gerawan "cite[d] no authority for its argument that the California Constitution extends protections against compelled speech ... greater than those provided in the United States Constitution which the United States Supreme Court [in Glickman] has held were not violated by" Marketing Order No. 917, which it said was "not substantively distinguishable from" the California Plum Marketing Program. It rendered judgment in the secretary's favor, and caused entry thereof.
After Gerawan filed a notice of appeal in the superior court, an appeal was docketed in the Court of Appeal for the Fifth Appellate District.
By a judgment announced in a unanimous opinion certified for publication, the Court of Appeal affirmed the judgment of the superior court. It apparently subjected to independent review the superior court's order granting the motion for judgment on the pleadings submitted by the Secretary of Food and Agriculture. It proceeded to sustain the order. It acknowledged that it found "persuasive some of the reasoning in Justice Souter's dissent" in Glickman. It nevertheless concluded that the California Plum Marketing Program does not implicate Gerawan's right to freedom of speech under the First Amendment's free speech clause, as construed by the Glickman majority. It determined that article I's free speech clause is not materially different from the First Amendment's. It attempted to render article I's free speech clause similar to the First Amendment's by construing article I's free speech clause as it believed other courts had construed the First Amendment's. It construed article I's free *481 speech clause thus under a "so-called `principle of deference,'" which it said operates when a state constitutional provision is "`similar'" in its "`language'" to a federal constitutional one. (Quoting Raven v. Deukmejian (1990)
Gerawan filed a petition for review. We granted its application.
III
The issue that we address on review is whether the California Plum Marketing Program, issued by the California Secretary of Food and Agriculture pursuant to the CMA, implicates Gerawan's right to freedom of speech under either the First Amendment to the United States Constitution or article I of the California Constitution by compelling funding of generic advertising.[3]
A
In the Bill of Rights, the First Amendment to the United States Constitution has stated since its ratification in 1791: "Congress shall make no law ... abridging the freedom of speech, or of the press...." (U.S. Const., 1st Amend.)
Under the First Amendment's free speech clause, "speech" includes written expression as well as spoken. (Barnes v. Glen Theatre, Inc. (1991)
In terms, the First Amendment's free speech clause prohibits the legislative branch of the government of the United States from making any "law ... abridging the freedom of speech, or of the press." (U.S. Const., 1st Amend.) In effect, it also bars the executive and judicial branches from taking any action with similar consequence. (New York Times Co. v. United States (1971)
Initially, the First Amendment's free speech clause constrained only the United States and its government. (See Barron v. Baltimore (1833)
The First Amendment's free speech clause specifies a "right to freedom of speech." (E.g., Bill Johnson's Restaurants, Inc. v. NLRB (1983)
The First Amendment's right to freedom of speech does not restrict itself "depending] upon the identity" or legal character of the speaker, "whether corporation, association, union, or individual." (First National Bank of Boston v. Bellotti (1978)
In its nature, however, the First Amendment's right to freedom of speech is not absolute. (E.g., Board of Comm'rs, Wabaunsee Cty. v. Umbehr (1996)
Moreover, in its range, the First Amendment's right to freedom of speech is not unbounded. (See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)
Also, in its scope, the First Amendment's right to freedom of speech is not unlimited. (E.g., Kingsley Books, Inc. v. *483 Brown (1957)
Fewer than 60 years ago, the United States Supreme Court introduced a dichotomy in the jurisprudence of the First Amendment's free speech clause between commercial speech, on the one side, and noncommercial speech, including that which is political or ideological in character, on the other.
"Commercial speech," at its core, is speech that does "no more than propose a commercial transaction" (Pittsburgh Press Co. v. Pittsburgh Human Rel. Comm'n (1973)
By contrast, "political speech" is speech that deals with "`governmental affairs'" (First National Bank of Boston v. Bellotti, supra,
The First Amendment's right to freedom of speech protects political speech. (Schad v. Mount Ephraim, supra,
The First Amendment's right to freedom of speech also protects commercial speech. (E.g., Va. Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. at pp. 761-770,
When the United States Supreme Court introduced its commercial speech/noncommercial speech dichotomy in First Amendment jurisprudence fewer than 60 years ago, it held that the First Amendment's right to freedom of speech did not protect commercial speech at all. (Valentine v. Chrestensen (1942)
The First Amendment's right to freedom of speech is implicated, of course, in the act of speaking. The relationship is tight and direct. The right in question comprises both a "right to speak freely" and also a "right to refrain from" doing so "at all." (Wooley v. Maynard (1977)
The First Amendment's right to freedom of speech may also be implicated in the use of money. The relationship is looser and less direct. (See, e.g., Board of Regents of the University of Wisconsin System v. Southworth (2000)
B
Comprising the Declaration of Rights, article I of the California Constitution states in subdivision (a) of section 2: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
Article I's free speech clause took its present language and designation in 1980. (Cal. Const., art. I, § 2, subd. (a), as amended June 3, 1980.) From there, it traces itself back to 1974, with the same language, but with a different designation as section 2. (Id., art. I, § 2, added Nov. 5, 1974.) Then to 1879, when the present California Constitution was framed, with a different designation as section 9, but with almost the same language: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." (Id., art. I, former § 9 (as adopted May 7, 1879).) And then to 1849, when the original California Constitution was framed, with the same language and designation. (Cal. Const, of 1849, art. I, § 9.)
Article I's free speech clause finds its prehistory outside of California in the New York Constitution (Los Angeles Alliance for Survival v. City of Los Angeles (2000)
Although the designation of article I's free speech clause has changed appreciably over the years, from section 9 to section 2 to subdivision (a) of section 2, its language has not. (See Los Angeles Alliance for Survival v. City of Los Angeles, supra, 22 Cal.4th at pp. 365-366,
It is beyond peradventure that article I's free speech clause enjoys existence and force independent of the First Amendment's. In section 24, article I states, in these very terms, that "[r]ights guaranteed by [the California] Constitution are not dependent on those guaranteed by the United States Constitution." This statement extends to all such rights, including article I's right to freedom of speech. For the California Constitution is now, and has always been, a "document of independent force and effect particularly in the area of individual liberties." (People v. Hannon (1977)
Article I's free speech clause is at least as broad as the First Amendment's, and its right to freedom of speech is at least as great. (See, e.g., Los Angeles Alliance for Survival v. City of Los Angeles, supra, 22 Cal.4th at pp. 366-367,
Hence, as to the points noted in our discussion of the First Amendment's free speech clause and its right to freedom of speech, article I's free speech clause and its right to freedom of speech, mutatis mutandis, are at least in accord.
Thus, under article I's free speech clause, as under the First Amendment's, "speech" includes written expression as well as spoken. Indeed, under article I's free speech clause, it does so in terms. (Cal. Const., art. I, § 2, subd. (a).)
Also, article I's right to freedom of speech, like the First Amendment's, does not restrict itself depending upon the identity or legal character of the speaker. (See Jacoby v. State Bar (1977)
Article I's right to freedom of speech, like the First Amendment's, is implicated in speaking itself. Because speech results from what a speaker chooses to say and what he chooses not to say, the right in question comprises both a right to speak freely and also a right to refrain from doing so at all, and is therefore put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say.
Similarly, article I's right to freedom of speech, like the First Amendment's, may also be implicated in the use of money. Because speech results, through money's enabling, from what speech a speaker chooses to fund and what speech he chooses not to fund, the right in question comprises both a right to fund speech meaningfully and also a right to refrain from doing so altogether, and is therefore put at risk both by prohibiting a speaker from funding speech that he otherwise would fund and also by compelling him to fund speech that he otherwise would not fund.
As a general rule, however, article I's free speech clause and its right to freedom of speech are not only as broad and as great as the First Amendment's, they are even "broader" and "greater." (Dailey v. Superior Court, supra,
*487 It is, of course, true that this general rule does not preclude the possibility of exception. (See Los Angeles Alliance for Survival v. City of Los Angeles, supra,
But, at least in the following particulars, it is indeed the general rule, and not any exception, that applies.
First, article I's free speech clause, unlike the First Amendment's, specifies a "right" to freedom of speech explicitly and not merely by implication. (Friesen, Should California's Constitutional Guarantees of Individual Rights Apply Against Private Actors? (1989) 17 Hastings Const. L.Q. 111, 118, 119-122; Note, Rediscovering the California Declaration of Rights (1974) 26 Hastings L.J. 481, 494; see Crosby, New Frontiers: Individual Rights Under the California Constitution (1989) 17 Hastings Const. L.Q. 81, 81-82.) Article I and the First Amendment are not dissimilar in providing, in the First Amendment's words, that "Congress shall make no law ... abridging the freedom of speech, or of the press" (U.S. Const., 1st Amend.), and, in article I's, that "[a] law may not restrain or abridge liberty of speech or press" (Cal. Const., art. I, § 2, subd. (a)). But, otherwise, article I and the First Amendment are altogether different, because only article I, and not the First Amendment, affirmatively declares as a "right" that "[e]very person may freely speak, write and publish his or her sentiments on all subjects" (Cal. Const., art. I, § 2, subd. (a)). (Crosby, New Frontiers: Individual Rights Under the California Constitution, supra, 17 Hastings Const. L.Q. at pp. 81-32; Friesen, Should California's Constitutional Guarantees of Individual Rights Apply Against Private Actors?, supra, 17 Hastings Const. L.Q. at pp. 118, 119-122; see Fritz, More Than "Shreds and Patches": California's First Bill of Rights (1989) 17 Hastings Const. L.Q. 13, 22, 23, 31; Note, Rediscovering the California Declaration of Rights, supra, 26 Hastings L.J. at pp. 493-495, 510.) Hence, article I itself grants a right to freedom of speech, and does not merely safeguard some such right against encroachment.
Second, article I's right to freedom of speech, unlike the First Amendment's, is unbounded in range. It runs against the world, including private parties as well as governmental actors. (See Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at pp. 908-911,
Third, article I's right to freedom of speech, unlike the First Amendment's, is "unlimited" in scope. (Dailey v. Superior Court, supra,
Within its "unlimited" scope (Dailey v. Superior Court, supra,
It is not otherwise with respect to article I's right to freedom of speech and commercial speech. Which is to say, as we shall explain, the right in question protects such speechsurely so in the form of truthful and nonmisleading messages about lawful products and services, the kind with which we are here concerned.[4]
That article I's right to freedom of speech protects commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services, is implied through the specific language of the free speech clause in its precise setting. Again: "Every person may freely speak, write and publish his or her sentiments on all subjects," with the sole qualification that anyone who "abuse[s] ... this right" is "responsible" for his misconduct. (Cal. Const., art. I, § 2, subd. (a), italics added.) Plainly, this "wording ... does not exclude" commercial speech from its "protection." (Friesen, State Constitutional Law: Litigating Individual Rights, Claims and Defenses, supra, § 5-2(b)(4), p. 274.)
That article I's right to freedom of speech protects commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services, is expressed in the broad context of the free speech clause in the world at large.
Let us focus initially on the circumstances surrounding article I's free speech clause at its drafting for the original California Constitution of 1849.
Protection for commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services, must have practically been assumed at that time.
One fact is relevant by its absence: The United States Supreme Court had not yet introduced its commercial speech/noncommercial *489 speech dichotomy in First Amendment jurisprudence, and would not do so for almost a century.
More to the point, from the very moment of independence through 1849, American legislatures had kept commercial speech free from regulation by statute, except as to products and services that were unlawful in the jurisdiction in question, such as lotteries in New Jersey and Pennsylvania, horse racing in Connecticut and Pennsylvania, and unlicensed innkeeping in Rhode Island. (Troy, Advertising: Not "Low Value" Speech, supra, 16 Yale J. on Reg. at pp. 103-105.) And in the same period, American courts had similarly kept commercial speech free from regulation by common law, except as to messages that were false or misleading in their particulars, and then only to the extent that they were not immunized by the doctrine of caveat emptor. (Id. at p. 104; see id. at pp. 106-107.)[5] Facts of this sort should cause no surprise. Since colonial times, commercial speech, operating through advertising, had played a major role in the life of the press, primarily as a source of revenue but also as a kind of editorial content, inasmuch as it was "thought to have independent value in educating and informing the reading public." (Troy, Advertising: Not "Low Value" Speech, supra,
In California itself in 1849, the prevailing political, legal, and social culture was that of Jacksonian democracy. (See Fritz, More Than "Shreds and Patches": California's First Bill of Rights, supra, 17 Hastings Const. L.Q. at pp. 24-26, 33; Scheiber, Race, Radicalism, and Reform: Historical Perspective on the 1879 California Constitution (1989) 17 Hastings Const. L.Q. 35, 37.) Jacksonian democracy was animated by "ideals of equality and open opportunity." (Scheiber, Race, Radicalism, and Reform: Historical Perspective on the 1879 California Constitution, supra,
When we turn our eye to article I's free speech clause at its drafting for the present California Constitution of 1879, we find no reason to reject protection for commercial speech, at least in the form of truthful and nonmisleading messages about lawful *490 products and services. The language in 1879 was identical to that in 1849. The United States Supreme Court had not yet introduced its commercial speech/noncommercial speech dichotomy in First Amendment jurisprudence, and would not do so for more than 60 years. In addition, the political, legal, and social culture of Jacksonian democracy had not passed, with its equality and open opportunity, economic individualism, and wide and unrestrained commercial speech. American legislatures continued to keep commercial speech free from regulation by statute, except as to products and services that were unlawful in the jurisdiction in question. (Troy, Advertising: Not "Low Value" Speech, supra, 16 Yale J. on Reg. at pp. 111-113.) This was evidently true of the California Legislature, which kept commercial speech unregulated except for products and services that it made unlawful, such as lotteries (see Pen.Code, §§ 319-322, 324-326 (1872) [criminalizing lotteries]; id., § 323 (1872) [criminalizing the advertising thereof] ), abortions (see id., former §§ 274-275 (1872) [criminalizing abortions]; id., former § 311, subd. 4 (1872) [criminalizing the advertising thereof] ), and obscene or indecent books and other items (see id., former § 311, subd. 3 (1872) [criminalizing obscene or indecent books and other items]; id., former § 311, subd. 4 (1872) [criminalizing the advertising thereof]). American courts continued to keep commercial speech free from regulation by common law, except as to messages that were false or misleading in their particulars, and then only to the extent that they were not immunized by the doctrine of caveat emptor. (See Troy, Advertising: Not "Low Value" Speech, supra, 16 Yale J. on Reg. at pp. 104, 106, 111-113.) This was apparently true of California courts, for there is no indication in reported decisions to the contrary.
Proceeding from 1879 to 1974, when article I's free speech clause was first amended, we again find no reason to reject protection for commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services. Although the numerical designation was different, the language was virtually identical. By 1974, the United States Supreme Court had introduced its commercial speech/noncommercial speech dichotomy in First Amendment jurisprudence, and indeed had held that the First Amendment's right to freedom of speech did not protect commercial speech at all. But there is no basis on which to conclude that the 1974 amendment of article I's free speech clause incorporated what had transpired in the intervening years, including the United States Supreme Court's First Amendment commercial speech/noncommercial speech dichotomy with its then nonprotection for commercial speech.
Advancing finally from 1974 to 1980, when article I's free speech clause was last amended, we yet again find no reason to reject protection for commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services. Although the numerical designation was different, the language was absolutely identical. By 1980, the United States Supreme Court, while retaining its commercial speech/noncommercial speech dichotomy in First Amendment jurisprudence, had made a volte-face to hold that the First Amendment's right to freedom of speech did, in fact, protect commercial speech, albeit only somewhat. There is no basis on which to conclude that the 1980 amendment of article I's free speech clause incorporated what had transpired in the intervening years, including the United States Supreme Court's First Amendment commercial speech/noncommercial speech dichotomy with its then, and current, "somewhat" protection for commercial speech.[6]
*491 C
The first question that we address is, Does the California Plum Marketing Program, issued by the California Secretary of Food and Agriculture pursuant to the CMA, implicate Gerawan's right to freedom of speech under the free speech clause of the First Amendment to the United States Constitution by compelling funding of generic advertising?
The answer that we give is, No.
At the threshold, we note what hardly needs noting. Although a corporation, Gerawan may at least be deemed to possess a First Amendment right to freedom of speech, whether or not it does so strictly speaking. That is because the interests served by its commercial speech about its plums extend beyond itself. Such interests include those of its audience of "consumer[s]," who may or may not choose to buy its fruit. (Va. Pharmacy Bd. v. Va. Consumer Council, supra,
As stated, the First Amendment's right to freedom of speech protects commercial speech, albeit only somewhat in comparison with noncommercial speech, including that which is political or ideological in character. It is implicated in speaking *492 itself. It may also be implicated in the use of money.
The First Amendment's right to freedom of speech allows compelling one who engages in commercial speech to say through advertising what he otherwise would not say, even about a lawful product or service, in order to render his message truthful and not misleading. (See, e.g., Va. Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. at pp. 771-772,
Similarly, the First Amendment's right to freedom of speech allows compelling one who engages in commercial speech to fund speech in the form of advertising that he would otherwise not, even about a lawful product or service, in order to render his message truthful and not misleading. (See, e.g., Va. Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. at pp. 771-772,
It would therefore appear that, without more, the First Amendment's right to freedom of speech would not allow compelling one who engages in commercial speech to say through advertising what he otherwise would not say, when his message is about a lawful product or service and is not otherwise false or misleading.
It would similarly appear that, without more, the First Amendment's right to freedom of speech would not allow compelling one who engages in commercial speech to fund speech in the form of advertising that he would otherwise not, when his message is about a lawful product or service and is not otherwise false or misleading.
Appearances, however, deceive.
In Glickman, a majority sustained Marketing Order No. 917, issued by the United States Secretary of Agriculture pursuant to the AMAA, against a challenge by Gerawan, among others, that it violated their First Amendment right to freedom of speech by compelling funding of generic advertising.
At the outset, the Glickman majority "stress[ed] the importance of the ... context" established by the AMAA. (Glickman v. Wileman Brothers & Elliott, Inc., supra,
The Glickman majority stated that the "central message of the generic advertising" under Marketing Order No. 917 was "that `California Summer Fruits' are wholesome, delicious, and attractive to discerning shoppers." (Glickman v. Wileman Brothers & Elliott, Inc., supra,
The Glickman majority went on to conclude that Marketing Order No. 917 did not even implicate, still less violate, the First Amendment right of Gerawan and the rest to freedom of speech by compelling funding of generic advertising. (See Glickman v. Wileman Brothers & Elliott, Inc., supra, 521 U.S. at pp. 468, 473-474, fn. 16, & 476,
Specifically, the Glickman majority said that Marketing Order No. 917 did not "impose[]" any "restraint" on any person's freedom of speech (Glickman v. Wileman Brothers & Elliott, Inc., supra,
The Glickman majority then said that Marketing Order No. 917 did not "compel any person to engage in any .. . speech" (Glickman v. Wileman Brothers & Elliott, Inc., supra,
The Glickman majority said, finally and crucially, that Marketing Order No. 917 did not "compel" any person to fund any "political or ideological" speech (Glickman v. Wileman Brothers & Elliott, Inc., supra, 521 U.S. at pp. 469-470,
Speaking through the principal dissenting opinion, Justice Souter would have struck down Marketing Order No. 917 as violative of the First Amendment right of Gerawan and the rest to freedom of speech.
Justice Souter concluded that Marketing Order No. 917 did indeed implicate the First Amendment right of Gerawan and the rest to freedom of speech with respect to commercial speech. (Glickman v. Wileman Brothers & Elliott, Inc., supra, 521 U.S. at pp. 478-491,
Justice Souter found "doubtful" the Glickman majority's "assumption" that Gerawan and the rest did not "disagree" with the generic advertising. (Glickman v. Wileman Brothers & Elliott, Inc., supra,
As for the Glickman majority's crucial assertion that Marketing Order No. 917 did not "compel" any person to fund any "political or ideological" speech (Glickman v. Wileman Brothers & Elliott, Inc., supra, 521 U.S. at pp. 469-470,
Justice Souter then concluded that Marketing Order No. 917 was subject to examination under the Central Hudson test, which considers whether a "regulation" restricting commercial speech (1) serves a "governmental interest" that is "substantial," (2) "directly advances" such interest, and (3) is "not more extensive than ... necessary" (Central Hudson Gas & Elec. v. Public Serv. Comm'n, supra,
Justice Souter finally concluded that Marketing Order No. 917 did not survive muster under any of the three prongs of the Central Hudson test: The marketing order (1) did not serve a governmental interest that was "substantial," as reflected in the fact that the AMAA's authorization of provisions therein for advertising, whether generic or otherwise, had been relatively late and spotty; (2) did *495 not "directly advance[ ]" any such interest; and (3) was not "narrowly tailored" in the service thereof. (Glickman v. Wileman Brothers & Elliott, Inc., supra,
Speaking through his own dissenting opinion, Justice Thomas would also have struck down Marketing Order No. 917 as violative of the First Amendment right of Gerawan and the rest to freedom of speech. Unlike Justice Souter, he rejected the Central Hudson test in and of itself as too "lenient." (Glickman v. Wileman Brothers & Elliott, Inc., supra,
In sum, the Glickman majority's analysis results from, and results in, the proposition that the First Amendment's right to freedom of speech does not protect commercial speech against compelled funding. To quote Justice Souter, who was not challenged on the point, the Glickman majority simply found "no First Amendment right to be free of coerced subsidization of commercial speech" whatsoever. (Glickman v. Wileman Brothers & Elliott, Inc., supra,
The soundness of the Glickman majority's analysis is open to serious question.
In its own terms, the Glickman majority's analysis lacks persuasiveness. Its legal component is driven not so much by principled reasoning as by ad hoc distinguishing. Its factual component is hardly better. For example, the majority's express "presum[ption]" that Gerawan and the rest "agree[d] with the central message of the speech that [was] generated by the generic [advertising]" (Glickman v. Wileman Brothers & Elliott, Inc., supra,
In addition, with virtual unanimity, commentators have subjected the Glickman majority's analysis to extensive criticism. (See 2 Smolla & Nimmer, Freedom of Speech (1999) § 20:45, pp. 20-106 to 20-115; Fried, Perfect Freedom, Perfect Justice (1998) 78 B.U.L.Rev. 717, 743, fn. 84; Casarez, Don't Tell Me What to Say: Compelled Commercial Speech and the First Amendment (1998) 63 Mo.L.Rev. 929, 954-965; Comment, Glickman v. Wileman Brothers & Elliott, Inc.: Don't Put Words in [M]y Mouth (1999) 33 New Eng.L.Rev. 989, 1004-1028; Comment, The Effect of Glickman v. Wileman Brothers & Elliott, Inc. on Congeneric Commodities: A Narrow Focus on a Broad Rule, supra, 9 San Joaquin Agr.L.Rev. at pp. 100-107; Recent DevelopmentsFree Speech and Freer Speech: Glickman v. Wileman Brothers & Elliott, Inc.,
For example, according to Professor Rodney Smolla, a noted scholar of the First Amendment, "[t]he Glickman decision was an unfortunate blip.... Justice Souter surely had the better of the argument. One can only hope that Glickman will someday prove to be an errant aberration, [and be] overruled .... The Court in Glickman appeared unable to get past conceptualizing the case before it as essentially one of agricultural and economic policy, and for that reason failed to apply conscientiously the First Amendment principles that ought to have resulted in" Marketing Order No. 917 "being struck down." (2 Smolla & Nimmer, Freedom of Speech, supra, § 20:45, pp. 20-114 to 20-115.)
For his part, Charles Fried, who was formerly Solicitor General of the United States and is presently an Associate Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts, has stated that "the Court in Glickman ... did not see what Justice Souter pointed out in dissent, that the convergent analogies of prior cases "almost compelled a decision against the aspect of Marketing Order No. 917 that "the court upheld." (Fried, Perfect Freedom, Perfect Justice, supra, 78 B.U.L.Rev. at p. 743, fn. 84.)
In the view of Professor Nicole Casarez, "Glickman constitutes a serious departure from traditional commercial speech and compelled speech analysis. The majority's contextual approach resulted in a house-of-cards opinion based on a faulty premise: that compelled commercial speech does not raise a First Amendment issue .... This premise overlooks three settled First Amendment principles: first, that compelled speech is just as constitutionally suspect as restricted speech; second, that paying for speech is constitutionally equivalent to speaking; and third, that commercial speech falls within the scope of the First Amendment." (Casarez, Don't Tell Me What to Say: Compelled Commercial Speech and the First Amendment, supra, 63 Mo.L.Rev. at p. 960.)
*497 All that we have said above, however, must be qualified by this: Although the soundness of the Glickman majority's analysis is open to serious question, its authority is not. We shall therefore apply it here as we must.
In its amended complaint, Gerawan alleges facts, liberally construed, to the effect that it produces and handles plums; plums constitute a lawful product; it has developed, and uses, a brand for marketing purposes; it engages in commercial speech about its own branded plums through advertising; its message is not false or misleading; it is nevertheless compelled by the California Plum Marketing Program to fund commercial speech in the form of generic advertising about plums as a commodity against its will; and the compulsion of funding reduces the amount of money available for its own advertising.
Under the Glickman majority's analysis, Gerawan's factual allegations are not sufficient even to implicate its First Amendment right to freedom of speech against the California Plum Marketing Program for compelling funding of generic advertising.
Gerawan does not allege facts that would establish that the California Plum Marketing Program "imposes" any "restraint" on its freedom of speech. (Glickman v. Wileman Brothers & Elliott, Inc., supra,
Neither does Gerawan allege facts that would establish that the California Plum Marketing Program "compel[s]" it "to engage in any ... speech." (Glickman v. Wileman Brothers & Elliott, Inc., supra,
Lastly, Gerawan does not allege facts that would establish that the California Plum Marketing Program "compel[s]" it to fund any "political or ideological" speech. (Glickman v. Wileman Brothers & Elliott, Inc., supra, 521 U.S. at pp. 469-470,
Against our conclusion, Gerawan argues that the Glickman majority's analysis is, in fact, inapplicable. To no avail.
*498 Gerawan initially attempts to distinguish the CMA, under which the California Plum Marketing Program was issued, from the AMAA, under which Marketing Order No. 917 was issued.
Although plainly not identical, the CMA and the AMAA, so far as the Glickman majority's analysis is concerned, are not materially different. Since 1937, the AMAA's underlying policies have included the establishing and maintaining of orderly marketing conditions for agricultural commodities in order to raise and support prices for their producers. The same is true of the CMA's underlying policies. Since 1937, the AMAA has authorized marketing orders as regulations governing marketing matters for the producers and handlers of agricultural commodities. The same is true of the CMA. The AMAA's authorization of provisions in marketing orders for advertising, whether generic or otherwise, has been relatively late and spotty. The same is not true, however, of the CMA, whose authorization of provisions in marketing orders for generic advertising has been broad and ab initio. This fact marks a differencebut not one that is material or, apparently, even favorable to Gerawan's position.[9]
Gerawan then attempts to distinguish the California Plum Marketing Program itself from Marketing Order No. 917.
Gerawan quotes the Glickman majority's statement: Marketing Order No. 917 was a "detailed" "regulatory scheme" that had "displaced many aspects of independent business activity that characterize other portions of the economy in which competition is fully protected by the antitrust laws," and accordingly "compelled" Gerawan and the rest "to fund the generic advertising at issue ... as a part of a broader collective enterprise in which their freedom to act independently" was "already constrained." (Glickman v. Wileman Brothers & Elliott, Inc., supra,
Although plainly not identical, the California Plum Marketing Program and Marketing Order No. 917, so far as the Glickman majority's analysis is concerned, are not materially different. Marketing Order No. 917, among other things, provided for the undertaking, by the Plum Commodity Committee, of research and development projects, including advertising, and set out specific regulations regarding both fruit containers and packs and also fruit grades and sizes. The California Plum Marketing Program provides for the undertaking, by the California Plum Marketing Board, of research; advertising, specifically generic advertising, along with sales promotion and market development; and the institution and implementation of quality standards and inspections. It appears that a federal marketing order under the AMAA might have regulated more broadly and deeply than a state marketing order under the CMA. But Marketing Order No. 917 did not in fact regulate so much more broadly and deeply than the California Plum Marketing Program.
At bottom, Gerawan would have us characterize Marketing Order No. 917 as a regulation of economic activity with an incidental effect on speech and the California Plum Marketing Program as a regulation *499 of speech with an incidental effect on economic activity. We cannot do so. Contrary to Gerawan's assertion, the fact that the California Plum Marketing Program earmarks 55 percent of the funds assessed from producers for generic advertising along with sales promotion and market development, with only 35 percent for quality standards and inspections and only 10 percent for research, does not cause it to "stand[] alone ... as a regulation of speech."[10]
D
The second question that we address is, Does the California Plum Marketing Program, issued by the California Secretary of Food and Agriculture pursuant to the CMA, implicate Gerawan's right to freedom of speech under the free speech clause of article I of the California Constitution by compelling funding of generic advertising?
The answer that we give is, Yes.
At the threshold, we note under article I's free speech clause what we noted under the First Amendment's. Although a corporation, Gerawan may at least be deemed to possess an article I right to freedom of speech, whether or not it does so strictly speaking. (People v. American Automobile Ins. Co., supra, 132 Cal.App.2d at pp. 322, 328,
As stated, article I's right to freedom of speech protects commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services. It is implicated in speaking itself. It may also be implicated in the use of money.
We shall assume that, with the justification of consumer protection, article I's right to freedom of speech allows compelling one who engages in commercial speech to say through advertising what he otherwise would not say, even about a lawful product or service, in order to render his message truthful and not misleading.
We shall also assume that, with the justification of consumer protection, article I's right to freedom of speech allows compelling one who engages in commercial speech to fund speech in the form of advertising that he would otherwise not, even about a lawful product or service, in order to render his message truthful and not misleading.
*500 Even with such an assumption, article I's right to freedom of speech, without more, would not allow compelling one who engages in commercial speech to say through advertising what he otherwise would not say, when his message is about a lawful product or service and is not otherwise false or misleading.
Similarly, even with such an assumption, article I's right to freedom of speech, without more, would not allow compelling one who engages in commercial speech to fund speech in the form of advertising that he would otherwise not, when his message is about a lawful product or service and is not otherwise false or misleading.
In its amended complaint, by way of restatement, Gerawan alleges facts, liberally construed, to the effect that it produces and handles plums; plums constitute a lawful product; it has developed, and uses, a brand for marketing purposes; it engages in commercial speech about its own branded plums through advertising; its message is not false or misleading; it is nevertheless compelled by the California Plum Marketing Program to fund commercial speech in the form of generic advertising about plums as a commodity against its will; and the compulsion of funding reduces the amount of money available for its own advertising.
Under the law as set forth above, Gerawan's factual allegations are sufficient at least to implicate its article I right to freedom of speech against the California Plum Marketing Program for compelling funding of generic advertising. Gerawan's commercial speech about its own branded plums through advertising concerns a lawful product, and is not itself false or misleading. Yet, the California Plum Marketing Program compels it to fund, against its will, commercial speech in the form of generic advertising about plums as a commoditygeneric advertising that is intended not to prevent or correct any otherwise false or misleading message in the interest of consumer protection, but solely to develop markets and promote sales in the interest of producer welfare.
Against our conclusion, the Secretary of Food and Agriculture argues, in reliance on People v. Teresinski (1982)
In Teresinski the presence of all four of the following facts counseled against rejection of a decision of the United States Supreme Court there considered: First, "nothing in the language or history of the California" constitutional provision in question "suggest[ed] that the issue before us should be resolved differently than under" the analogous federal constitutional "provision". (People v. Teresinski supra,
Here, by contrast, the absence of at least two of these four facts counsels in favor of rejection of the Glickman majority's analysis.
As for the fourth fact, counting from last to first, we acknowledge that the Glickman majority's analysis, "if followed by the courts of this state, would not overturn established California doctrine affording greater rights" in the area of commercial speech under article I's free speech clause. (People v. Teresinski supra, 30 Cal.3d at *501 p. 837,
As for the third fact, however, we must observe that the Glickman majority's analysis was far from "unanimous" (People v. Teresinski supra,
As for the second fact, we concede that, strictly speaking, the Glickman majority's analysis "did not overrule past precedent or limit previously established rights under" the First Amendment's free speech clause. (People v. Teresinski supra,
Focusing on language more than history, the Secretary of Food and Agriculture claims that, for present purposes, article I's free speech clause is not materially different from the First Amendment's.
The secretary's point has been anticipated by our analysis above, which sets out the specific language of article I's free speech clause in its precise setting and also its broad context in the world at large, and must yield to its force.
The secretary nevertheless attempts to make article I's free speech clause similar to the First Amendment's, thus: The first sentence of article I's free speech clause "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right" (Cal.Const., art. I, § 2, subd. (a))is "not implicated in this case" because it assertedly grants only a right to freedom of speech, most narrowly defined, and then only against prior restraint. The second sentence of article I's free speech clause"A law may not restrain or abridge liberty of speech or press" (Cal. Const., art. I, § 2, subd. (a))is indeed implicated, and it is equivalent to the First Amendment's free speech clause.
*502 The secretary's attempt to make article I's free speech clause similar to the First Amendment's collapses onto itself.
On its face, the secretary's attempt is essentially an application of brute force. It simply removes what is unique to article I's free speech clause vis-à-vis the First Amendment's, and keeps what is common. It is different in degree, but not in kind, from making over section 5 of article I of the California Constitution, which states that a "standing army may not be maintained in peacetime," into clause 12 of section 8 of article I of the United States Constitution, which implies that such an army may indeed be maintained, through the simple expedient of deleting the adverbial particle "not."
Furthermore, in its substance, the secretary's attempt proves unpersuasive. It appears to be rooted in the assertion, referred to above, that article I's free speech clause grants only a right to freedom of speech, most narrowly defined, and then only against prior restraint.
We must, however, reject any suggestion by the secretary that article I's free speech clause cannot be implicated in the use of money, but is implicated solely in speaking itself. As stated, even if money is not itself speech, it nevertheless enables speech.
We must also reject any suggestion by the secretary that article I's free speech clause does not grant a right to refrain from speaking at all as well as a right to speak freely. Again, speech results from what a speaker chooses not to say in addition to what he chooses to say. The Secretary appears to argue, syllogistically, as follows: A right that cannot be "abuse[d]" does not exist (Cal. Const., art. I, § 2, subd. (a)); the right to refrain from speaking cannot be abused; therefore, the right to refrain from speaking does not exist. The conclusion does not follow because the minor premise, at least, is unsound. So far as commercial speech is concerned, and on the assumption that article I's right to freedom of speech does not protect commercial speech in the form of false or misleading messages about even lawful products or services,[11] the right not to speak can surely be abused, and is in fact abused, whenever the speaker fails to speak and thereby renders his message false or misleading. (Cf. Griset v. Fair Political Practices Com., supra,
We must similarly reject any suggestion by the Secretary that article I's free speech clause does not grant a right to refrain from funding speech altogether as well as a right to fund speech meaningfully. Again, speech results, through money's enabling, from what speech a speaker chooses not to fund in addition to what speech he chooses to fund. The Secretary apparently makes the same syllogistic argument as described above, with the same result.
In addition, we must reject any suggestion by the Secretary that article I's free speech clause grants a right to freedom of speech only against prior restraint. True, it does indeed grant a right against prior restraint.[12] But without any limitation thereto. Certainly, that article I's free speech clause grants a right to freedom of speech against prior restraint does not preclude a right against what we may call "subsequent punishment." Indeed, it effectively grants a right against subsequent punishment by effectively conferring immunity, save only for "abuse" (Cal. Const., art. I, § 2, subd. (a)). Moreover, *503 a right against prior restraint could prove empty without a right against subsequent punishment, inasmuch as subsequent punishment might cause the speaker to impose a "prior restraint," as it were, on himself, totally apart from even the threat of imposition of any prior restraint, properly so called, by another. Likewise, that article Fs free speech clause grants a right to freedom of speech against prior restraint does not preclude a right against what we may call "prior compulsion." One does not speak freely when one is restrained from speaking. But neither does one speak freely when one is compelled to speak. Perhaps restraint has figured historically as a more familiar evil. But compulsion does not present itself analytically as a less pernicious one.
For all of these reasons, we must, and do, reject the Glickman majority's construction of the First Amendment's free speech clause as our construction of article I's. As stated, the Glickman majority's analysis results from, and results in, the proposition that the First Amendment's right to freedom of speech does not protect commercial speech against compelled funding. Any such proposition is simply untenable with respect to article I's. The Glickman majority found "no ... right" whatsoever under the First Amendment "to be free of coerced subsidization of commercial speech." (Glickman v. Wileman Brothers & Elliott, Inc., supra,
With that said, we must in fairness own to the force of a sentiment that appears to inform the Glickman majority's analysis. De minimis non curat lex is a maxim of ancient origin, "old" even in the infancy of the nation. (Ware v. Hylton (1796)
IV
We turn now to the decision of the Court of Appeal, which affirmed the judgment *504 of the superior court on its order granting, without leave to amend, the motion for judgment on the pleadings submitted by the California Secretary of Food and Agriculture on the ground that Gerawan's amended complaint did not allege facts sufficient to constitute a cause of action.
At the threshold, we believe that the Court of Appeal was right to subject the superior court's order granting the motion for judgment on the pleadings, as it apparently did, to independent review. Such a ruling is so scrutinized. (Smiley v. Citibank, supra,
On the merits, however, we believe that the Court of Appeal was wrong to sustain the superior court's order granting the motion for judgment on the pleadings.
A trial court's determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. (Smiley v. Citibank, supra,
An appellate court's consideration of the ensuing determination by the trial court involves the same acceptance and liberal construction of the factual allegations in question. (American Airlines, Inc. v. County of San Mateo, supra,
The Court of Appeal sustained the superior court's order granting the motion for judgment on the pleadings because it concluded that the California Plum Marketing Program does not implicate Gerawan's right to freedom of speech under either the First Amendment's free speech clause or article I's.
We agree with the Court of Appeal in its conclusion that the California Plum Marketing Program does not implicate Gerawan's right to freedom of speech under the First Amendment's free speech clause, as construed by the Glickman majority, by compelling funding of generic advertising. As we have explained, the California Plum Marketing Program, and the CMA pursuant to which it was issued, are not materially different for present purposes from Marketing Order No. 917, or from the AMAA pursuant to which it was issued. Marketing Order No. 917 was sustained by the Glickman majority. The California Plum Marketing Program must be sustained by us.
But we do not agree with the Court of Appeal in its conclusion that the California Plum Marketing Program does not implicate Gerawan's right to freedom of speech under article I by compelling funding of generic advertising. As we have also explained, article I's free speech *505 clause is indeed materially different for present purposes from the First Amendment's. The Court of Appeal attempted to render article I's free speech clause similar to the First Amendment's by construing article I's free speech clause as it believed other courts had construed the First Amendment's. It construed article I's free speech clause thus under a "so-called `principle of deference,'" which it said operates when a state constitutional provision is "`similar'" in its "`language'" to a federal constitutional provision. (Quoting Raven v. Deukmejian, supra,
With our conclusion that the California Plum Marketing Program does indeed implicate Gerawan's right to freedom of speech under article I, we bring the task before us to an end. The Court of Appeal's conclusion to the contrary was necessary to its judgment. The former cannot stand. The latter must therefore fall.
Our conclusion, however, brings no conclusion to this cause. That the California Plum Marketing Program implicates Gerawan's right to freedom of speech under article I does not mean that it violates such right. But it does indeed raise the question. That question, in turn, raises others, including what test is appropriate for use in determining a violation. And that question, in its turn, raises still others as well, including what protection, precisely, does article I afford commercial speech, at what level, of what kind, and, perhaps "most difficult," subject to what test (Spiritual Psychic Science Church v. City of Azusa, supra,
V
For the reasons stated above, we conclude that we must vacate the judgment of the Court of Appeal, and remand the cause to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
KENNARD, J., WERDEGAR, J., and BROWN, J., concur.
Dissenting Opinion by GEORGE, C.J.
I respectfully dissent.
The generic advertising component of the California Plum Marketing Program challenged in this case is for all relevant purposes identical to the component that has been a part of numerous similar marketing programs that have existed throughout the nation for more than 60 years, compelling all business enterprises in a particular industry to pay their fair share of the cost of generic, nonpolitical, and nonideological advertising of their agricultural products. As the majority recognizes, the challenged program also is for all relevant purposes identical to the generic *506 advertising program that the United States Supreme Court, only three years ago, upheld in Glickman v. Wileman Bros. & Elliott, Inc. (1997)
As I shall explain, other jurisdictions whose state constitutions contain free speech provisions similar to California's have interpreted their constitutional provisions as not restricting the respective state's authority to regulate commercial speech any more than does the federal Constitution. In my view, there is no basis, either in the language or the history of California's constitutional provision, that would justify interpreting article I, section 2(a) so as to afford an agricultural producer a greater right under the state Constitution than under the federal Constitution to obtain "free rider" status with respect to such generic advertising, i.e., to permit a producer to obtain the benefits from the generic advertising created under the marketing order without paying its fair share of the cost of such advertising.
Moreover, even if I were to agree with the majority that we should reject the reasoning of Glickman, supra,
I.
A.
In Glickman, supra,
The court in Glickman, supra,
First, the court observed that fruit producers and handlers are not prevented from promulgating their own advertisements, and hence communicating their own message, to any audience. (Glickman, supra,
Second, the court in Glickman noted that no fruit producer or handler is compelled *508 to engage in any actual or symbolic speech. (Glickman, supra,
Finally, the court in Glickman observed that the regulatory scheme differed from laws that have been found to implicate free speech rights, because in the case before it the generic commercial advertising did not force any producer or handler to endorse or finance political or ideological views with which he or she disagrees. (Glickman, supra,
The court in Glickman continued: "[Requiring respondents to pay the assessments cannot be said to engender any crisis of conscience. None of the advertising in this record promotes any particular message other than encouraging consumers to buy California tree fruit.... [¶] Moreover, rather than suggesting that mandatory funding of expressive activities always constitutes compelled speech in violation of the First Amendment, our cases provide affirmative support for the proposition that assessments to fund a lawful collective program may sometimes be used to pay for speech over the objection of some members of the group." (Glickman, *509 supra,
Summarizing its review of the three distinguishing characteristics discussed above, the court concluded in Glickman: "[N]one 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 the other anticompetitive features of the marketing orders." (Glickman, supra,
Despite the majority's criticisms of Glickman (maj. opn., ante, 101 Cal.Rptr.2d at pp. 492-497, 12 P.3d at pp. 740-745), it has failed to demonstrate that the high court was wrong in finding that, in this heavily regulated setting, the First Amendment is not implicated by the compelled funding of generic advertising through a marketing order, and that such an order in this setting is merely "a species of economic regulation." (Glickman, supra,
B.
Before and soon after adoption of the federal Agricultural Marketing Agreement Act of 1937 at issue in Glickman, supra,
The California Act, like the federal legislation and that of many other states, creates a highly regulated environment that restricts the freedom of producers and handlers to act independently, for example by setting quality and ripeness standards for the marketing of products. In addition, and pertinent to our present inquiry, the California Actagain like the federal legislation and that of many other states expressly permits issuance of marketing orders for advertising campaigns regarding agricultural commodities grown in California, funded by compelled contributions. (Food & Agr.Code, §§ 58889, 58921.) Like producers and handlers under the federal program at issue in Glickman, and like those operating under other programs that have existed for decades throughout the nation, producers and handlers of California plums have been compelled, through a resulting state-issued marketing order, to fund[6] generic advertising "as a part of a broader collective enterprise." (Glickman, supra,
As the majority acknowledges, the state legislation and the marketing program here at issue are not materially different from the program approved in Glickman. (Maj. opn., ante, 101 Cal.Rptr.2d at pp. 498, 504, 12 P.3d at pp. 745-746, 750-751.) The majority provides a partial description of this regulatory context (maj. opn., ante, at pp. 477-479, 12 P.3d at pp. 726-729), but I believe that it is helpful to emphasize the regulatory scheme in greater detail, and hence quote below extensively from the Court of Appeal majority's decision in this case:
"The point of these [the state and federal marketing] programs is not simply to regulate the market; the point is to preserve the agricultural industry. The laws reflect a long-standing political judgment that `agriculture'unlike bicycle manufacturing or clothing production, for examplecannot be allowed to disappear from the American economy because of untrammeled market forces....[8]
*511 "In this context, it is worth repeating at length the legislative findings that form the basis of the exercise of the police power of the state in the Act: `It is hereby declared that the marketing of commodities in this state in excess of reasonable and normal market demands therefor; disorderly marketing of such commodities; improper preparation for market and lack of uniform grading and classification of commodities; unfair methods of competition in marketing of commodities; and the inability of individual producers to maintain present markets or to develop new or larger markets for California-grown commodities, result in an unreasonable and unnecessary economic waste of the agricultural wealth of this state.' (Food & Agr. Code, § 58651.) The foregoing described the result of unrestrained competition in the marketing of perishable commodities; the Legislature then stated that `[t]hese conditions vitally concern the health, peace, safety and general welfare of the people of this state.' (Food & Agr.Code, § 58652.[9]
"... [T]he California marketing order [here at issue] `insure[s] maturity, grade and accurate size labeling,' in addition to providing mandatory funding of generic advertising.... [I]t is apparent from the foregoing legislative findings that maturity, grade and labeling standards directly displace the ability to compete using the traditional methods of different' ... preparation for market and ... [individualized] grading and classification of agricultural commodities.'... [¶] ... [¶]
"It is rational to control prices as a way to ensure both demand for the product and a supply of the product [citation]; it is rational to control supply to ensure a demand sufficient to return a fair price [citation]; and it is rational to stimulate demand so that the amount produced by suppliers brings a fair price. In each case, the fundamental assumption of unrestrained competitionthat supply and demand together set the price in a free marketis replaced with an assumption that regulatory modification of the marketof supply and/or demandis necessary in the public interest.
"This is the sense in which the [Glickman] majority characterized the generic advertising campaign as not violating free speech protections, but merely as one of a number of available tools imbedded in a comprehensive regulatory program 'that impose[s] restraints on competition that arguably disadvantage particular producers for the benefit of the entire market.' ([Glickman, supra,]
It is clear that the present case presents itself in essentially the same heavily regulated context that the majority in Glickman found to be highly pertinent to its inquiry under the free speech clause of the First Amendment.
II.
The Secretary of Food and Agriculture of the State of California argues that although our state Constitution has independent force and we are not bound by the United States Supreme Court's interpretation of corresponding provisions of the federal Constitution, nevertheless, pursuant to People v. Teresinski (1982)
The majority discusses the factors that we identified in Teresinski, supra,
A.
Does the language or history of article I, section 2(a) suggest that the issue before us should be resolved differently from the way it was resolved under the First Amendment in Glickman? (Teresinski, supra,
If we were to consider article I, section 2(a)'s words in isolation, without regard to the provision's history, and without considering the highly regulated context of the program here at issue, I might agree with the majority that the program presently challenged "implicates" article I, section 2(a). But it is not appropriate to consider the text of the state constitutional provision in isolationwe must consider it along with its history and context. In this regard, I emphasize the following:
1.
The majority asserts that "[a]s a general rule," article I, section 2(a)'s "right to freedom of speech" is "broader" and "greater" than that provided under the First Amendment, and that only in exceptional circumstances does the state provision fail to afford greater or broader free speech rights. (Maj. opn., ante, 101 Cal.Rptr.2d at pp. 486-487, 12 P.3d at pp. 734-736.) Because the proper application of the state free speech clause necessarily must be determined on a case-by-case basis, I am not convinced that it is helpful to attempt to quantify the question in terms of a "general rule." Nevertheless, on the basis of past decisions, it is incorrect to suggest that in all but exceptional circumstances the state Constitution provides greater or broader protection for speech than does the First Amendment. Instead, at least in *513 the numerous areas that have been litigated, California decisions applying the state free speech clause have more often than not concluded that the state provision affords no greater protection than that afforded by the First Amendment.
For example, recently in Los Angeles Alliance for Survival v. City of Los Angeles (2000)
Similarly, for the past half-century, we have interpreted article I, section 2(a), (or its substantively identical predecessors) in numerous other contexts, as affording comparable but no greater protection for speech than that provided under the First Amendment. (See, e.g., Brown v. Kelly Broadcasting Co. (1989)
To be sure, we have held that article I, section 2(a) protects speech activity that the First Amendment does not. (Robins v. Pruneyard Shopping Center (1979)
2.
California has had for more than 150 years the same core language in article I, *514 section 2(a)the declaration that "[e]very person may freely speak, write and publish his or her sentiments on all subjects." The majority asserts that this language affords greater protection to commercial speech than does the First Amendment.
We have not been cited to any California decision prior to 1942 (when the United States Supreme Court held there was no First Amendment protection for commercial speech in Valentine v. Chrestensen (1942)
3.
Finally, at least 40 other states have constitutional provisions with language that is substantively akin to that contained in the free speech provision of article I, section 2(a). (See Los Angeles Alliance, supra,
This considerable history, and the absence of a holding from any other state similar to the one proposed by today's majority, suggest it would be inappropriate to now read into article I, section 2(a), rights with respect to commercial speech that numerous other courts in numerous other analogous jurisdictions previously have failed to recognize. I believe that this first Teresinski factor militates in favor of following the approach set out in Glickman.
B.
The final three Teresinski factors yield the same conclusion.
Does the federal decision in question overrule precedent or limit previously established rights under the United States Constitution? (Teresinski, supra,
Was the decision unanimous, and has it inspired "incisive academic criticism"? (Teresinski supra,
The last Teresinski factor presents the question: if Glickman is followed by our courts, would it overturn established California doctrine affording greater rights under article I, section 2(a)? (Teresinski supra,
Accordingly, I conclude, contrary to the majority's assertion, that the four Teresinski factors militate in favor of adopting Glickman's approach in construing article I, section 2(a).
III.
As just explained, I am not convinced that we should disavow Glickman in construing our free speech provision. If we were to follow Glickman here, we would conclude that article I, section 2(a) is not implicated by the challenged marketing program.
Nevertheless, the majority holds that article I, section 2(a) is implicated by the plum marketing program. Having so concluded, however, the majority leaves for the Court of Appeal the task of attempting to resolve, on remand, whether the program actually violates the state Constitution. This issue was fairly raised in the petition for review, it is well addressed in the briefs, and the majority fails adequately to explain why this court should not also determine the standard of review and then apply that standard in order to decide whether the state free speech provision is violated here.
Gerawan proposes application of the test originally set out in Central Hudson Gas & Elec. v. Public Serv. Comm'n (1980)
*518 The majority in Glickman, supra,
Consistent with the majority in Glickman, I agree that if free speech rights are implicated here, the appropriate standard of review would not be the one developed to assess restrictions on commercial speech (the Central Hudson test), but instead the test used to assess compelled funding of speech (the Abood/Keller test). (Accord, Gallo Cattle Co. v. California Milk Advisory Bd. (9th Cir.1999)
Although in its phrasing the Abood/Keller test is plainly less exacting than Central Hudson's intermediate scrutiny standard, still, as the majority in Glickman implicitly reasoned, if the Abood/Keller test is sufficient for the purposes of assessing core First Amendment interests concerning compelled funding of political or ideological speech, the same test also should be quite adequate for the task here at hand, which concerns assessing the constitutional propriety of compelled funding of mere generic commercial advertising.
Under Abood and Keller as applicable in this context, I believe that our inquiry and the conclusions we draw should be as follows:
(i) Is there a legitimate basis for the compelled association? Yes. The interest in maintaining the stability of markets for California plums justifies legislation that allows producers and handlers to establish compelled associations designed to accomplish that goal, (ii) Is the generic advertising program germane to the purposes of the marketing order here at issue? Yes. One purpose of the marketing order is to create and support a market for California plums. The advertising program clearly is germane to that purpose; the costs of the advertising program are "reasonably incurred" *519 (Keller, supra,
In summary, assuming the program here at issue implicates article I, section 2(a), it is subject to review pursuant to the Abood/Keller test, and under that test the program does not violate article I, section 2(a).
Accordingly, I would affirm the unanimous judgment of the Court of Appeal, upholding the validity of the challenged marketing program under both the federal and state Constitutions.
CHIN, J., and HANLON, J.[*], concur.
NOTES
[1] Namely, "almonds, filberts (otherwise known as hazelnuts), California-grown peaches, cherries, papayas, carrots, citrus fruits, onions, Tokay grapes, pears, dates, nectarines, celery, sweet corn, limes, olives, pecans, eggs, avocadoes, apples, raisins, walnuts, tomatoes, . . . Florida grown strawberries, [and] cranberries." (7 U.S.C. 608c(6)(I).)
[2] Since 1994, motions for judgment on the pleadings have been authorized by statute. (Stats. 1993, ch. 456, § 5, pp. 2524-2527, adding Code Civ.Proc., § 438; Stats. 1994, ch. 493, § 2, amending Code Civ.Proc., § 438.) Previously, they were allowed by common law. (See Smiley v. Citibank (1995)
[3] By our leave, numerous entities have submitted briefs as amici curiae supporting either Gerawan's position or that of the Secretary of Food and Agriculture, either in whole or in part, including the American Federation of Labor and Congress of Industrial Organizations, the California Apple Commission et al., the California Asparagus Commission et al., the California Table Grape Commission et al., the Center for Individual Freedom, Matsui Nursery, Inc., et al., the State Bar of California, the Sun-Maid Growers of California, the Washington Legal Foundation, and Wileman Bros. & Elliott, Inc. In conjunction with its brief, the State Bar of California requests us to take judicial notice of a tentative decision, which is evidently now final, in Brosterhous v. State Bar of California (Super.Ct.Sac.County, 1999, No. 95AS03901). We hereby grant the request. As a "reviewing court" (Evid.Code, § 459, subd. (a)), we may take judicial notice of the "[r]ecords of ... any court of this state" (id., § 452, subd. (d)). We do so with respect to the tentative decision, which is included therein.
[4] Excepting, perhaps, other sorts of messages about other sorts of products or services. (See Friesen, State Constitutional Law: Litigating Individual Rights, Claims and Defenses (2d ed.1996) § 5-2(b)(4), p. 274 [allowing such an exception if supported by "[h]istory in a particular state"]; see generally Troy, Advertising: Not "Low Value" Speech (1999) 16 Yale J. on Reg. 85, 87-144 [providing such "history," although largely outside of California]; see also In re Morse (1995)
[5] See Hamilton, The Ancient Maxim Caveat Emptor (1931) 40 Yale L.J. 1133, 1186 (stating that, in the course of the 19th century in the United States, the "common sense of individualism won for" the doctrine of caveat emptor "judicial acceptance, fitted it out with legal trappings, and made it a vehicle of public policy"; "judges discover[ed] that [the doctrine] sharpened wits, taught self-reliance, and made a manan economic manout of the buyer").
[6] We recognize that our conclusions concerning article I's free speech clause and commercial speech, which are set out in the text, have not been anticipated completely and in their entirety in prior California judicial decisions. That is because article I's free speech clause and commercial speech were not considered on their own terms in any of these prior decisions, but only, for example, through the distorting lens of the United States Supreme Court's commercial speech/noncommercial speech dichotomy in First Amendment jurisprudence. (See, e.g., Leoni v. State Bar (1985)
[7] We note in passing that the Glickman majority stated that marketing orders issued by the Secretary of Agriculture pursuant to the AMAA are "expressly exempted from the anti-trust laws." (Glickman v. Wileman Brothers & Elliott, Inc., supra,
[8] Without contradiction by the Glickman majority, Justice Souter noted that generic advertising under Marketing Order No. 917 did not "represent so-called `government speech,' with respect to which the Government may have greater latitude in selecting content than otherwise permissible under the First Amendment...." (Glickman v. Wileman Brothers & Elliott, Inc., supra,
[9] Accord, Gallo Cattle Co. v. California Milk Advisory Bd. (9th Cir.1999)
In apparent contrast to both the AMAA and the CMA is the Mushroom Promotion, Research, and Consumer Information Act of 1990 (Pub.L. No. 101-624, tit. XIX, § 1921 et seq. (Nov. 28, 1990) 104 Stat. 3854 et seq., as amended, codified at 7 U.S.C. § 6101 et seq.), which has been characterized as "basically a commercial advertising statute designed to assess mushroom growers for the cost of advertising" (United Foods, Inc. v. U.S. (6th Cir. 1999)
[10] Compare Cal-Almond Inc. v. U.S. Dept. of Agr. (9th Cir.1999)
In apparent contrast to both Marketing Order No. 917 and the California Plum Marketing Program is the Mushroom Promotion, Research, and Consumer Information Order (7 C.F.R. § 1209 (1999) [semble: not specifying the dale of the order in question] ), which has been said to leave the "market in mushrooms" "relatively free," "[e]xcept for [a] compelled advertising program assessing growers" to cover related expenses (United Foods, Inc. v. U.S., supra,
[11] See ante,
[12] See Werner v. Southern Cal. etc. Newspapers (1950)
[13] Whether, and how, article I's free speech clause may accommodate government speech (see ante,
[14] Because of the result that we reach, we need not, and do not, address the issue, which was raised before the superior court and the Court of Appeal, whether the California Plum Marketing Program implicates Gerawan's right to freedom of association under either the First Amendment or article I by compelling funding of generic advertising.
Notes
[1] The court further explained: "Congress enacted the Agricultural Marketing Agreement Act of 1937 (AMAA) ... in order to establish and maintain orderly marketing conditions and fair prices for agricultural commodities. [Citation.] Marketing orders promulgated pursuant to the AMAA are a species of economic regulation that has displaced competition in a number of discrete markets; they are expressly exempted from the antitrust laws. [Citation.] Collective action, rather than the aggregate consequences of independent competitive choices, characterizes these regulated markets. In order `to avoid unreasonable fluctuations in supplies and prices,' [citation], these orders may include mechanisms that provide a uniform price to all producers in a particular market, that limit the quality and the quantity of the commodity that may be marketed, [citation], that determine the grade and size of the commodity, [citation], and that make an orderly disposition of any surplus that might depress market prices [citation]. Pursuant to the policy of collective, rather than competitive, marketing, the orders also authorize joint research and development projects, inspection procedures that ensure uniform quality, and even certain standardized packaging requirements. [Citation.] The expenses of administering such orders, including specific projects undertaken to serve the economic interests of the cooperating producers, are `paid from funds collected pursuant to the marketing order.' [Citation.] [¶] Marketing orders must be approved by either two-thirds of the affected producers or by producers who market at least two-thirds of the volume of the commodity. [Citation.] The AMAA restricts the marketing orders `to the smallest regional production areas . . . practicable.' [Citation.] The orders are implemented by committees composed of producers and handlers of the regulated commodity, appointed by the Secretary, who recommend rules to the Secretary governing marketing matters such as fruit size and maturity levels. [Citation.] The committees also determine the annual rate of assessments to cover the expenses of administration, inspection services, research, and advertising and promotion. [Citation.] [¶] Among the collective activities that Congress authorized for certain specific commodities is `any form of marketing promotion including paid advertising.' [Citation.] The authorized promotional activities, like the marketing orders themselves, are intended to serve the producers' common interest in disposing of their output on favorable terms. The central message of the generic advertising at issue in this case is that `California Summer Fruits' are wholesome, delicious, and attractive to discerning shoppers. [Citation.] All of the relevant advertising, insofar as it is authorized by the statute and the Secretary's regulations, is designed to serve the producers' and handlers' common interest in promoting the sale of a particular product." (Glickman, supra,
[2] At this point, the court explained in Glickman: "We considered, in Abood [, supra,
[3] Phrased affirmatively, Keller stands for the proposition that assessments to fund a lawful collective program may be used to pay for speech over the objection of association members so long as the speecheven if ideological or politicalis germane to the purposes for which the compelled association is justified.
[4] Even if I concluded otherwise on the merits, I could not endorse the tone of the majority's criticism of the United States Supreme Court in Glickman.
[5] Other states subsequently enacted, or revised and reenacted, similar legislation. (See, e.g., 1955 Wash.Laws, ch. 191, §§ 1-29; 1961 Pa.Laws, No. 657, §§ 1-14; 1967 N.D. Laws, ch. 75, §§ 1-17; 1969 Ohio Laws H. No. 576; 1971 NJ. Laws, ch. 308, §§ 1-34; 1971 Iowa Acts, ch. 143, §§ 1-34.)
[6] The assessments under the California Plum Marketing Programlike the assessments that have been imposed by other statesare calculated based upon weight of produce marketed. Currently, the assessment is set at a rate not to exceed 20 cents per 28 pound box of fruit. That sum is earmarked as follows: 2 cents for research, 7 cents for quality standards and inspections, and 11 cents for generic advertising, sales promotion, and market development.
[7] Akin to the antitrust immunity conferred under the federal programs (see maj. opn., ante,
[8] The impetus for the CMA is well described in Voss v. Superior Court (1996)
[9] The Legislature has described the purpose of the CMA consistent with these findings and observations. The Act is designed to: "(a) Enable [the] producers of this state ... to correlate more effectively the marketing of their commodities with market demands for those commodities. [¶] (b) Establish orderly marketing of commodities. [¶] (c) Provide for uniform grading and proper preparation of commodities for market. [¶] (d) Provide methods and means for the maintenance of present markets, or for the development of new or larger markets, for commodities that are grown within this state or for the prevention, modification, or elimination of trade barriers that obstruct the free flow of those commodities to market. [¶] (e) Eliminate or reduce economic waste in the marketing of commodities. [¶] (f) Restore and maintain adequate purchasing power for the producers of this state. [¶] (g) Inform the general public of the processes of producing agricultural commodities. [And] [¶] (h) Foster cooperation and understanding between urban and rural sectors of society." (Food & Agr.Code, § 58654.)
[10] I am unpersuaded by the majority's attempts to invoke secondary historical sources as support for the conclusion that the drafters of California's 1849 and 1879 Constitutions, and the drafters of a later revision and a later amendment to the free speech provision, had in mind the need to "protect[] commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services." (Maj. opn., ante,
[11] Gerawan Farming, Inc. relies upon Moser v. Frohnmayer (1993)
[12] Gerawan suggests that post 1976 opinions from Pennsylvania (which has a provision substantively similar to article I, section 2(a)) support its position that our provision protects the precise kind of commercial speech here at issue. Com. v. Bd. of Physical Therapy (1999)
[13] E.g., State, Tp. of Pennsauken v. Schad (1999)
[14] See also Conner v. Joe Hatton, Inc. (Fla. 1968)
[15] See also Dukesherer Farms, Inc. v. Ball (1979)
[16] Including Oregon (see ante, fn. 11), which, like many other states, long has had legislation similar to that presently under review. (See Or.Rev.Stats., §§ 578.010-578.990 [Oregon Wheat Commission], 579.010-579.990 [Oregon Potato Commission].)
[17] Perhaps the closest case on point is Florida Canners Ass'n v. State, Dept. of Citrus, supra,
[18] The majority does not assert that the student works that it cites reflect the requisite "incisive criticism" contemplated by Teresinski, but instead focuses upon three professional articles. The first two of these materials do not offer incisive criticism. Volume 2 of Smolla and Nimmer, Freedom of Speech (1999), much like some of the cited student works, contains primarily a detailed description of the various Glickman opinions (at § 20:45, pp. 20-106 to 20-114), after which the authors announce, in conclusory fashion and with no independent analysis, that Justice Souter's dissent presented the better argument. (At pp. 20-114.) Fried, Perfect Freedom, Perfect Justice (1998) 78 B.U.L.Rev. 717, is even less substantive. There, at the conclusion of a wide-ranging published lecture on jurisprudential attempts to attain "perfect freedom" and "perfect justice," the author does little more than mention, in a five-line footnote that contains no independent analysis, his disagreement with the majority in Glickman and agreement with Justice Souter's dissent. (At p. 743, fn. 84.) The third professional work relied upon by the majority, Casarez, Don't Tell Me What to Say: Compelled Commercial Speech and the First Amendment (1998) 63 Mo.L.Rev. 929 (Casarez), does indeed present a thoughtful critique of the "contextual" approach of the majority in Glickman (at pp. 960-965), but these five pages of this one work hardly constitute the kind of incisive academic criticism contemplated by Teresinski.
[19] The principal dissenting opinion in Glickman would have applied this Central Hudson standard and found that the marketing order in that case failed that test. (Glickman, supra, 521 U.S. at pp. 491-504,
[20] In this regard (and contrary to the suggestions of various amici curiae on behalf of Gerawan), the majority in Glickman implicitly rejected the applicability of strict scrutiny analysis in the situation before the high court.
[21] In Gallo, the Ninth Circuit Court of Appeals assumed, without deciding, that the complaining partya milk and cheese producerraised a valid ideological objection to the "Real California Cheese®" advertising campaign there at issue. (Gallo, supra,
[*] Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.