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Forced speech is abridgement of free speech

SHARE Forced speech is abridgement of free speech

The Supreme Court struck a modest blow for liberty last week. Speaking through Justice Anthony Kennedy, the court voted 6-3 to promote free speech by forbidding compelled speech. It was a nice piece of work.

The case involved an act of Congress that not many of us had ever heard of, the Mushroom Promotion, Research and Consumer Information Act of 1990. Under the act, major producers of mushrooms are annually assessed up to a penny a pound to pay for a program of generic advertising. United Foods Inc., headquartered in Tennessee, objected to the arrangement as a violation of the First Amendment.

United maintains three huge mushroom farms, one in Ventura, Calif., another in Salem, Ore., a third in Fillmore, Utah. There the company grows its Pictsweet brand, sold only in local geographic markets.

Because it had no interest in promoting the sales of other growers anywhere else, the company refused to pay the assessment. The Department of Agriculture sued to compel payment. The government won in the Tennessee District Court but lost in the U.S. Court of Appeals for the 6th Circuit. The government appealed to the Supreme Court, but on June 25 lost again. It deserved to lose.

Plenty of cases support a right of free speech. Only a few turn directly on a right to be free of compelled speech. The court has held, for example, that schoolchildren cannot be compelled to recite the Pledge of Allegiance. Motorists cannot be compelled to buy ideological license plates. A newspaper publisher cannot be compelled to carry a letter to the editor.

In union shops, dissenting members of the union cannot be compelled to support the union's political expenditures. United Foods argued successfully that the same principle applies to the marketing of mushrooms. In a free country, we cannot be compelled to speak.

The government argued strenuously in the mushroom case that the assessment for advertising was merely a manifestation of permissible economic regulation. Four years ago the Supreme Court upheld a similar assessment program for the promotion of peaches, plums and nectarines. United responded that the mushroom market is different. It is not subject to price and production controls. It is not "collectivized" to the same degree that the growers of tree fruits are collectivized.

In his opinion for the high court, Justice Kennedy agreed. Commercial speech may be entitled to less protection than private speech, but such companies as United Foods are not deprived of all First Amendment protection.

Kennedy said: "The subject matter of the speech may be of interest to but a small segment of the population; yet those whose business and livelihood depend in some way upon the product involved no doubt deem the First Amendment protection to be just as important for them as it is for other discrete, little-noticed groups in a society which values the freedom resulting from speech in all its diverse parts. . . .

"First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that the government favors."

Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and John Paul Stevens, found nothing wrong with the mandatory assessments imposed on growers. The defendant company, said Breyer, was not compelled to engage in political speech. The promotion of an edible fungus is far removed from such issues as abortion, gun control and affirmative action. The advertising of mushrooms carries no risk of significant harm to an individual's conscience. Here the sole purpose of speech is to sell more mushrooms.

Breyer missed the point completely. He said the government's mandatory assessment program "does not compel speech itself; it compels the payment of money." He added that "money and speech are not identical." Hokum! The dissenters were contriving a distinction without a difference. The payment of money was for the purchase of advertising. How disingenuous can a jurist be?

The Great Mushroom Case was something less than a landmark, but it was comforting for one reason among others. In the majority opinion Justice David Souter sided with Justices O'Connor, Scalia, Thomas, Kennedy and Rehnquist. It was the second time Souter has voted sensibly on an issue of commercial speech. We will make a conservative of him yet.

Universal Press Syndicate