Published on .

April 17, 2001

By Ira Teinowitz

WASHINGTON ( -- In a case that could affect hundreds of millions of dollars in ad purchases by agricultural marketing organizations,

the U.S. Supreme Court today heard oral arguments from a mushroom grower who doesn't want to fund Mushroom Council advertising.

The court expressed skepticism about the constitutionality of various programs in which the government requires producers of products from pork to cotton to pay for advertising.

Mushroom grower United Foods contends that it draws little benefit from advertising by the Mushroom Council, and that the council's ad program amounts to compulsory speech, which

violates its First Amendment rights.

Harvard professor Laurence Tribe, who also handled part of Al Gore's arguments after the November election, told justices that the fees of 1 1/2 cents per pound imposed on bigger mushroom growers to pay for the advertising are unconstitutional.

No right to force advertising
Mr. Tribe suggested that while the government can order marketers to fix misleading ad claims or to include health warnings, it has no right to force other kinds of advertising just because it thinks the advertising is a good idea. If the government thinks the advertising is important, he said, it should pay for it.

Barbara McDowell, assistant to the solicitor general, argued that the Mushroom Council's advertising isn't compelled speech but a government program backing a specific industry; the effort is supported by fees on users who are getting the biggest benefit. She said the program, which is overseen by the Department of Agriculture, doesn't restrict mushroom growers from speaking and doesn't provide political statements.

The justices, however, repeatedly raised questions about the program.

"Suppose I am in People for Ethical Treatment of Mushrooms ... [and] I produce them only to make them happy. Could I be compelled [to advertise]?" a skeptical Justice Anthony Scalia asked Ms. McDowell.

He also questioned what rights a grower of yellowish peaches would have if a marketing board decided to advertise reddish peaches.

Ms. McDowell's argument that commercial speech issues were not applicable got some support from several other justices, including Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Stephen Breyer.

Drawing a line
Justice Breyer questioned how the program for mushroom growers would be much different from the government requiring museum patrons to contribute to a campaign pitching museums to inner-city residents or requiring tobacco companies to pay for a campaign warning about tobacco products. He questioned how the court could draw the line between acceptable and unacceptable advertising.

Mr. Tribe contended that the Mushroom Council's program was not really a government program.

"The idea that the Mushroom Council is the voice of America is not plausible," he said.

Major decisions expected
The four years ago the court considered a similar advertising case involving peach growers and on a 5-4 decision upheld that program because it was part of a marketing order that involved regulation. United Food contends that unlike those programs, the program it contributes to is little more than advertising.

Advertising lawyers say the mushroom case together with a Massachusetts tobacco case to be heard by the court April 25, could significantly alter advertising law for years to come.

"They could be bookends of a government decision for freedom of choice," Mr. Tribe said today.

Copyright April 2001, Crain Communications Inc.

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