428
Breyer, J., dissenting
against abuse of the program, such as "making one entrepreneur finance advertising for the benefit of his competitors." Ante, at 418 (Stevens, J., concurring). Indeed, there is no indication here that the generic advertising promotes some brands but not others. And any "debat[e]" about branded versus nonbranded mushrooms, ante, at 411 (majority opinion), is identical to that in Wileman. Supra, at 423-424.
Taken together, these circumstances lead me to classify this common example of government intervention in the marketplace as involving a form of economic regulation, not "commercial speech," for purposes of applying First Amendment presumptions. And seen as such, I cannot find the program lacks sufficient justification to survive constitutional scrutiny. Wileman, supra, at 476-477.
The Court, in applying stricter First Amendment standards and finding them violated, sets an unfortunate 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 or would use a portion of museum entry charges for a citywide campaign to promote the value of art. Moreover, because of its uncertainty as to how much governmental involvement will produce a form of immunity under the "government speech" doctrine, see ante, at 417, the Court infects more traditional regulatory requirements—those related, say, to warranties or to health or safety information—with constitutional doubt.
Alternatively, the Court's unreasoned distinction between heavily regulated and less heavily regulated speakers could lead to less First Amendment protection in that it would deprive the former of protection. But see Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U. S. 530, 534, n. 1 (1980) (Even "heavily regulated businesses may enjoy constitutional protection") (citing, as an example, Virginia Bd. of Pharmacy, supra, at 763-765).
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