Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997)

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certiorari to the united states court of appeals for the ninth circuit

No. 95-1184. Argued December 2, 1996—Decided June 25, 1997

Respondents, California tree fruitgrowers, handlers, and processors, initiated administrative proceedings challenging the validity of various regulations contained in marketing orders promulgated by the Secretary of Agriculture under the Agricultural Marketing Agreement Act of 1937 (AMAA). Congress enacted the AMAA to establish and maintain orderly agricultural-commodity marketing conditions and fair prices; the program, which is expressly exempted from the antitrust laws, displaces competition in favor of collective action in the discrete markets regulated. AMAA marketing orders set uniform prices, product standards, and other conditions for all producers in a particular market; must be approved by two-thirds of the affected producers; are implemented by committees of producers appointed by the Secretary; and impose assessments on producers for the expenses of their administration, including product advertising and promotion. The orders at issue assessed respondents for, inter alia, the cost of generic advertising of California nectarines, plums, and peaches. After the Department of Agriculture upheld the generic advertising regulations, respondents sought review in this action, which was consolidated with enforcement actions brought by the Secretary. The District Court upheld the orders and entered judgment for the Secretary, but the Ninth Circuit held that the Government enforced contributions to pay for generic advertising violated respondents' commercial speech rights under the test set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 566.

Held: The requirement that respondents finance generic advertising does not violate the First Amendment. Pp. 467-477. (a) Respondents' claimed disagreement with the content of some of the advertising at issue has no bearing on the validity of the entire generic advertising program. The Ninth Circuit invalidated that program under Central Hudson because the Government failed to prove that such advertising was more effective than individual advertising in increasing consumer demand for California tree fruits. The factual assumption that generic advertising may not be the most effective


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