"Just as the First Amendment may prevent the government from prohibiting speech, the amendment may prevent the government from compelling individuals to express certain views," wrote Justice Anthony Kennedy, delivering the court majority's opinion.
"The question is whether the government may underwrite and sponsor speech with a certain viewpoint using special subsidies exacted from a designated class of persons, some of whom object to the idea being advanced," Justice Kennedy said.
Calling the mushroom advertising "compelled speech," the court drew a distinction between the Mushroom Council's campaign and a similar ad program for peaches that the court had previously approved.
The peach campaign was part of a series of regulations while the Mushroom Council's program is only advertising, the court ruled.
Ad lawyers said today that the decision will force courts to determine whether each grower program is part of a set of restrictions on marketing and allowable or if it is advertising. However, the lawyers said the court did not provide clear direction on determining the difference.
The U.S. Department of Agriculture and farm groups were studying the ruling today.
Writing in dissent, Justice Stephen Breyer argued that the program "does not compel speech itself, it compels the payment of money." He warned that the decision would set a precedent.
"That precedent suggests, perhaps requires, striking down any similar program that, for example, would require tobacco companies to contribute to an industry fund for advertising the harms of smoking," he said.
Increased federal involvement?
He also warned that the decision could create an incentive to increase government involvement in grower programs to justify their being regulatory programs.
United Foods, a Tennessee grower, had challenged the assessments imposed on mushroom growers by the government to fund the industry ad campaign, contending the $1 million a year ad program from Lewis & Neale, New York, was not providing it significant benefits.
The price tag for the mushroom growers campaign is small compared with the almost $100 million "Got Milk?" effort, but the results could affect numerous other farm advertising programs.