Opinion
As Modified on Denial of Rehearing June 17, 1996.
Cause Transferred July 16, 1997.
Previously published at 45 Cal.App.4th 769, 50 Cal.App.4th 1
Brian C. Leighton, Clovis, for Defendants and Appellants.
Dale A. Stern, Robert S. Hedrick and Kahn, Soares & Conway, Sacramento, for Plaintiff and Respondent.
NICHOLSON, Associate Justice.
In 1979, the California Legislature established the California Kiwifruit Commission "to deal with the broad fields of advertising, promotion, marketing research, and production research." (Food & Agr.Code, § 68005.) The Commission is funded through an assessment upon kiwifruit handlers. (§§ 68081, subd. (n); 68106.) When the Commission sued David Moss and his business, TJ Farms (collectively, "Moss"), for assessments due for the 1988-1992 marketing seasons, Moss primarily defended on the ground the assessments are an unconstitutional infringement of his First Amendment speech and association rights. After the trial court ruled in the Commission's favor, the parties entered into a stipulated judgment as to the amount Moss owes the Commission. On appeal, Moss again challenges the assessments as unconstitutional. This court will reverse the judgment.
All further undesignated statutory references are to the Food and Agricultural Code.
Moss' claim also obviously differs from that of the appellant in Torcaso v. Watkins (1961) 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, who declined to affirm a belief in God. The separation against church and state renders such a requirement unconstitutional irrespective of the person's religious beliefs.
FACTUAL AND PROCEDURAL BACKGROUND
The California Kiwifruit Commission is comprised of nine kiwifruit producers, one
A "producer" or "grower" is defined as "any person who is engaged, within this state, in the business of producing, or causing to be produced for market, kiwifruit, who shall, upon request, provide proof of commodity sale and proof of assessment payment during the preceding marketing season, or provide adequate proof, as determined by the commission, of actual or anticipated commodity sale and assessment payment during the existing marketing season." (§ 68041.)
Nowhere in the record do I find any indication the Commission has delivered a public pronouncement with which the handlers did not agree. Moss does not take exception to the Commission's public pronouncements. Rather, he complains the Commission has not pronounced enough, squandering money on lawsuits instead of advertising. Indeed, he complains, "the Commission has done no consumer advertising in the past two years." Thus, unlike a reluctant beef producer who plies his trade while recognizing that beef may have deleterious health consequences, Moss and his fellow kiwi producers concur that kiwifruit is good for the body and the soul, even though the Kiwifruit Commission is harmful to their pocketbooks.
The purpose behind establishing the Commission is explained within the statutory provisions: "As an exotic subtropical fruit, the kiwifruit is not heavily consumed in this country or abroad. Opportunity exists for continued growth and expansion of the industry, by creating new markets in such areas. The success of such an expansion program is uniquely dependent upon effective advertising and promotion, since the creation of new markets is essentially a matter of educating people to the use of a previously unknown or unrecognized food.... The establishment of a California Kiwifruit Commission is necessary for the efficient development and management of a national and international advertising program and essential to ensure that the California kiwifruit industry can compete successfully in the marketplace." (§§ 68002, 68003.)
The statutory provisions concerning the California Kiwifruit Commission were not self-effectuating. Rather, the applicable statutes became operative only after approval of the provisions by 65 percent of the kiwifruit producers in an implementation referendum vote. (§ 68092.)
The lead opinion also notes the potential of commercial speech to mislead. However, deception is not the decisive factor. We tolerate misleading political speech. Certain types of speech are simply afforded less protection than others. As the Supreme Court has opined "not all speech is of equal First Amendment importance." (Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749, 758, 105 S.Ct. 2939, 2944, 86 L.Ed.2d 593.) Only recently has commercial speech been afforded constitutional protection and such speech is still afforded only "a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values." (Ohralik v. Ohio State Bar Assn., supra, 436 U.S. at p. 456, 98 S.Ct. at p. 1918, 56 L.Ed.2d at p. 453.)
In the United States, kiwifruit is grown in California, Oregon, and South Carolina. The United States also permits other countries to import kiwifruit. The amount of kiwifruit imported into the United States from other countries has increased significantly during the past 10 years, resulting in lower retail prices. Linda Harner, the Commission's controller, testified California handlers marketed an estimated 12.7 million trays of kiwifruit in 1992. An estimated 85 percent, or 10.8 million, of these trays were marketed in the United States. Chile, the largest importer, introduced between 6 and 8 million trays into the United States during this same period.
The retail price of kiwifruit has decreased approximately 23 percent from its price in 1985, from 39 cents to 30 cents per kiwifruit.
The parties have only tendered First Amendment issues for consideration in this appeal. Thus, there is no occasion for us to consider other possible objections to the Commission's authority.
A "tray" is a "small flat" of kiwifruit. The statute merely defines a "tray" as "a receptacle used in the packaging or handling of kiwifruit." (§ 68044.) Moss testified he had seen the price of kiwifruit drop to $3.50 per tray during 1993.
The California Kiwifruit Commission neither addresses nor enforces quality standards. A federal marketing order addresses the quality of kiwifruit grown in California, and the federal program imposes a separate assessment. (See 7 U.S.C. § 608c, subds. (2), (6); 7 C.F.R. §§ 920.41, 920.42, 920.52, 920.302.) The sole purpose of the California Kiwifruit Commission is to advertise and promote kiwifruit by developing and managing a national and international advertising program. (§§ 68002, 68003.)
The record does not indicate the amount of the current federal assessment. The applicable regulation, adopted in 1984, initially limits the maximum assessment rate to 3.5 cents per flat, with a provision for subsequent adjustments to this rate by the amount of the Consumer Price Index for California. (7 C.F.R. § 920.41, subd. (b).)
The California Kiwifruit Commission currently imposes assessments only on sales of fresh market kiwifruit. Formerly, the Commission imposed assessments of 3.5 percent of the sales price on both fresh and processed kiwifruit products. The most recent figures found in the record are the assessments for 1991 and 1992, which were 21.5 cents per tray. Harner testified a grower's average production should be between 1,500 and 2,000 trays per acre, resulting in assessments of $322 to $430 per acre. Kiwifruit During 1990-1992, the Commission filed a lawsuit against New Zealand for dumping kiwifruit into the United States market at prices below the costs of production. The lawsuit cost the Commission more than $1 million and, as a result, the Commission slashed its consumer advertising during that time. Harner noted the retail price of kiwifruit has dropped, and the number of kiwifruit growers has declined 40 percent since 1988--from 1,000 growers to 600 growers. The number of acres of kiwifruit has correspondingly "reduced substantially" from approximately 8,000 to 6,800 acres. Harner stated the decrease in the number of growers likely was due to the reduced net return per acre.
In the trial court, Moss challenged the propriety of using the assessment proceeds to conduct this litigation against New Zealand. The trial court's ruling states: "This issue could have been raised before the Commission. The Commission could have been persuaded not to spend money for this purpose. Defendants have failed to exhaust as to this issue." The trial court alternatively concluded: "There is a compelling state interest in promoting kiwifruit. A lawsuit to prevent New Zealand from selling kiwifruit below cost is germane.... Defendants can properly be compelled to pay for expenses generated by the litigation." In reviewing the portions of the Food and Agriculture Code pertaining to the California Kiwifruit Commission, there is no statutory authority permitting the Commission to institute such a lawsuit. The statutory provisions authorizing civil actions are aimed solely at the Commission's ability to collect the mandated assessments and penalties. (See §§ 68081, subd. (r); 68113.) However, because Moss's brief mentions this issue only in passing and the record in this area is not well developed, this opinion does not reach whether the Commission's participation in the New Zealand lawsuit was ultra vires.
The per capita consumption of kiwifruit has risen from two one-hundredths of a pound in 1980 to about two-tenths of a pound in 1990. In 1980, California produced 1.2 million trays of kiwifruit; the estimated 1992 marketable harvest was 12.7 million trays. However, despite the increase in actual numbers, California's ranking dropped during this same period from the second largest producer of kiwifruit in the world to the sixth largest producer. Harner testified there has been an "astronomical increase in [the kiwifruit] supply worldwide," and she attributed the reduction in retail price to this increase in the worldwide supply. With the lifting of trade barriers due to the passage of the North American Free Trade Agreement (NAFTA) and the General Agreement on Tariffs and Trade (GATT), a reversal in this trend of lower kiwifruit retail prices appears unlikely. Indeed, as a result of GATT, New Zealand reportedly anticipates increased returns from its kiwifruit exports to the United States. (Agra Europe, No. 1592 (May 6, 1994) p. N5.)
In addition to an administrative staff, the Commission employs eight merchandisers to visit grocery stores on a seasonal basis to promote the sale of kiwifruit nationwide. Prior to the lawsuit against New Zealand, the Commission's primary expenditure was its nationwide domestic advertising and promotion program. During 1988-1990, the Commission engaged in print and radio advertising. The Commission claims to have developed a logo for California kiwifruit, as well as "a little price card with a pretty picture on it," and a cardboard bin with pictures giving the consumer "ideas how to eat [kiwifruit], the nutritional benefits, things like that."
The Commission receives funds from the federal government to advertise and promote kiwifruit in export markets. The federal government prohibits the Commission from using these federal funds domestically. For the 1992 crop, the Commission received $659,000 from the federal government based on its own contribution of $131,800. The Commission's matching funds, the $131,800, came from the challenged assessments. The Commission has done no studies with respect to grower returns and does not know whether the advertising campaign over the last five years has increased grower revenue.
Moss grows kiwifruit and other crops on five acres of land in Chico, California. He sells fresh kiwifruit, and also processes and sells kiwifruit-based jam, vinegar, chips, and poppyseed salad dressing. Moss spends approximately $3,000 to $4,000 each year advertising and promoting his products, and claims he derives no benefit from the California Kiwifruit Commission.
In October 1992, the Commission sued Moss, asserting he had not paid assessments of $1,791.30 for the 1988-1992 marketing seasons.
OVERVIEW
By law, Moss must pay a percentage of his kiwifruit sales price as an assessment. This assessment is not paid to the state as a general tax, but to a specific commission whose sole purpose is to speak on behalf of Moss and other kiwifruit handlers to promote kiwifruit sales. Moss and the Commission agree these assessments invoke First Amendment implications compelling strict scrutiny.
Although the Commission's advertising and promotion of kiwifruit constitutes commercial speech, which is subject to a lesser standard of scrutiny, the context of Moss's challenge implicates associational rights and renders commercial speech analysis inappropriate. Pursuant to the strict scrutiny standard, the assessments are unconstitutional because the Commission has failed to show a compelling state interest in the kiwifruit industry which cannot be achieved through less restrictive means. Indeed, the Commission has failed to show that its program has had any effect whatsoever on grower returns.
DISCUSSION
I
First Amendment Implications
As the parties correctly recognize, this case implicates an interesting hybrid of constitutional interests. At first blush, because the Commission's message involves advertising, it is tempting to characterize this as a "commercial speech" case. (See Central Hudson Gas & Elec. Corp. v. Public Service. Comm'n. (1980) 447 U.S. 557, 561-562, 100 S.Ct. 2343, 2348-2349, 65 L.Ed.2d 341, 348 (hereafter, Central Hudson ) [defining commercial speech as "expression related solely to the economic interests of the speaker and its audience" and as "speech proposing a commercial transaction"]; see also 44 Liquormart, Inc. v. Rhode Island (1996) 517 U.S. 484, ---, 116 S.Ct. 1495, 1507, 134 L.ed.2d 711,---- ["The mere fact that messages propose commercial transactions does not in and of itself dictate the constitutional analysis that should apply to decisions to suppress them"].) The United States Supreme Court repeatedly has held the First Amendment protects commercial speech. Accordingly, any state-imposed regulation or restriction upon commercial speech must serve a "substantial" state interest, directly advance the state's interest, and be "narrowly tailored to achieve the desired objective." (Board of Trustees, S.U.N.Y. v. Fox (1989) 492 U.S. 469, 480, 109 S.Ct. 3028, 3035, 106 L.Ed.2d 388, 404; Central Hudson, supra, 447 U.S. at p. 566, 100 S.Ct. at p. 2351, 65 L.Ed.2d at p. 351.) However, the assessments implicate other constitutional interests, and thus other constitutional analyses, in addition to commercial speech.
Although the ultimate messages issued by the Commission constitute commercial speech, the challenge here is not aimed only at the Commission's particular message. Rather, this court is asked whether the state may conscript a subgroup of individuals to fund an organization to speak for that subgroup, thus invoking concerns of forced association and compelled speech. (See Wooley v. Maynard (1977) 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752, 762.) Thus, the principal question presented is whether the state may force Moss to pay assessments to the Commission, which generates generic advertising for a product Moss grows and sells. The parties have cited no binding authority directly on point. The United States Supreme Court and California Supreme Court have addressed some related issues. However, the most closely analogous cases, which involved similar assessments, are from the federal circuit courts and thus are not binding on this court. (See Wileman Bros. & Elliott, Inc. v. Espy (9th Cir.1995) 58 F.3d 1367; Cal-Almond, Inc. v. U.S. Dept. of Agriculture (9th Cir.1993) 14 F.3d 429; U.S. v. Frame (3d Cir.1989) 885 F.2d 1119.)
See, e.g., Central Hudson, supra, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 [banning of promotional advertising]; Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 [same]; Posadas de Puerto Rico Assoc. v. Tourism Co. (1986) 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 [same]; Keller v. State Bar of California (1990) 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 [mandatory membership dues used in part to finance lobbying efforts and litigation]; Rubin v. Coors Brewing Co. (1995) 514 U.S. 476, 115 S.Ct. 1585, 131 L.Ed.2d 532 [banning of alcohol content on beer labels]; Elrod v. Burns (1976) 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 [compelling affiliation with a particular political party]; Abood v. Detroit Board of Education (1977) 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 [validity of an agency shop provision in a collective bargaining agreement]; Roberts v. United States Jaycees (1984) 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 [compelling the Jaycees to accept women members]; Smith v. Regents of University of California (1993) 4 Cal.4th 843, 16 Cal.Rptr.2d 181, 844 P.2d 500 [validity of university's mandatory student activities fee].
Lack of binding precedent, however, does not equate to a lack of guidance. In a case involving an "agency shop" clause in a collective bargaining agreement, whereby employees who were not union members nevertheless were required to pay the union an amount equal to union dues as a condition of employment, the United States Supreme Court observed: "The fact that the appellants are compelled to make, rather than prohibited from making, contributions ... works no less an infringement of their constitutional rights." (Abood v. Detroit Board of Education, supra, 431 U.S. at p. 234, 97 S.Ct. at p. 1799, 52 L.Ed.2d at p. 284.) "Compelled support of a private association is fundamentally different from compelled support of government.... [T]he reason for permitting the government to compel the payment of taxes and to spend money on controversial projects is that the government is representative of the people. The same cannot be said of a union, which is representative only of one segment of the population, with certain common interests. The withholding of financial support is fully protected as speech in this context.... [Moreover,] the likelihood of an area of consensus in the group [does not] remove the protection of the First Amendment for the disagreements that inevitably will occur.... Under the First Amendment, the protection of speech does not turn on the likelihood or frequency of its occurrence." (Id. at pp. 257, 259, fn. 13, 97 S.Ct. at pp. 1810-1811, 1811, fn. 13 (Powell, J., conc. opn.).) The Commission, like a union, is an entity "representative only of one segment of the population, with certain common interests."
Similarly, in a case involving a mandatory student activities fee at the University of California at Berkeley, the California Supreme Court declared: "[T]he constitutional guaranties of free speech and association do not permit the state to make speech a matter of compulsion and coercion.... [Compelled] contributions are a form of speech, and compelled speech offends the First Amendment, just as do restrictions on speech. [Citations.]" (Smith v. Regents of University of California, supra, 4 Cal.4th at pp. 848, 852, 16 Cal.Rptr.2d 181, 844 P.2d 500, fn. omitted.)
Thus, freedom of association "plainly presupposes a freedom not to associate." (Roberts v. United States Jaycees, supra, 468 U.S. at p. 623, 104 S.Ct. at p. 3252, 82 L.Ed.2d at p. 475; cf. Wooley, supra, 430 U.S. at p. 714, 97 S.Ct. at p. 1435 ["the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all"].) Without doubt or dispute by the parties, and consistent with every case addressing similar assessments, the kiwifruit assessments manifestly implicate the protections of First Amendment freedom of speech and assembly. II
In the federal cases most analogous to this case, a "publicly identified group" (peach and nectarine handlers in Wileman Bros., almond handlers in Cal-Almond, and cattle producers in Frame ) was required to contribute money to fund the " 'dissemination of a particular message associated with that group.' " (See Cal-Almond, supra, 14 F.3d at p. 435.) All three cases concluded compelled contributions to private groups engaging in First Amendment activities implicate the liberties of free speech and association. (See Wileman Bros., supra, 58 F.3d at p. 1377 [Agricultural Marketing Agreement Act of 1937 implicates First Amendment rights because "[handlers] are compelled to provide financial support for particular messages--the generic ads--associated with a particular group--peach and nectarine handlers"]; Cal-Almond, supra, 14 F.3d at p. 435 [Almond Marketing Order implicates First Amendment right to be free from compelled speech and association]; Frame, supra, 885 F.2d at p. 1133 [Beef Promotion Act assessments implicate First Amendment rights of free speech and association].) "[W]here the government requires a publicly identified group to contribute to a fund earmarked for the dissemination of a particular message associated with that group, the government has directly focused its coercive power for expressive purposes.... This sort of funding scheme [establishes a] close nexus between the individual and the message funded." (Cal-Almond, supra, 14 F.3d at p. 435, internal quotation marks, citations, and italics omitted.)
Standard of Scrutiny
The next step is to determine the applicable analysis for evaluating the assessments' infringement on First Amendment speech and associational rights. As previously noted, there is a certain superficial attraction to employing commercial speech analysis. However, simply because the Commission's advertising constitutes commercial speech does not make commercial speech analysis appropriate for evaluating Moss's claim. This case differs from prohibitions against promotional advertising (Central Hudson, supra ), prohibitions against pharmacists advertising the prices of prescription drugs (Va. Pharmacy Bd. v. Va. Citizens Consumer Council, supra ), or banning in-person solicitation (see, e.g., Edenfield v. Fane (1993) 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (accountants); Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (lawyers)). The holdings of these cases prevent or limit commercial speakers from expressing messages related to public health, safety, or consumer protection. None of these concerns applies here. The challenge is not whether the Commission may disseminate a particular message, but whether the state may force Moss to accept and subsidize the Commission as his mouthpiece.
To characterize the challenge to these assessments as merely a complaint with the "messenger" but not the "message" is an oversimplification contrary both to counsel's oral argument and to the realities of advertising. Moss does not object to the assessments merely because the message is presented by the Commission. The "message" and the "messenger" are, by necessity, intertwined--the "message" cannot be divorced from its presentation. A product or service is identified, among other things, with the advertisement's mode, manner, content, and context. Even if Moss and the Commission shared a common goal of increasing kiwifruit consumption--a contention Moss's counsel disputed in oral argument--such a common goal does not constitute agreement with the Commission's "message." Imagine an advertisement for a luxury automobile in which the manufacturer intended to feature a brief video clip to the July 7, 1990, recording of "Terme di Caracalla Roma" by "The Three Tenors," but due to a misunderstanding, the advertisement instead features a film clip by "The Three Stooges." The "messenger" is still the manufacturer; the goal is still to sell the luxury automobile. However, the "message" conveyed is very different depending on which three men appear in the advertisement. Particularly here, where the Commission disseminates its "message" by means of "a little price card with a pretty picture on it" and a cardboard bin, to characterize the "message" as being "buy kiwifruit"--and thereby insisting Moss challenges only the "messenger"--is to grant the Commission greater credence than warranted on this record.
In addition to the dissimilarity of this case to the conventional commercial speech cases--those dealing with messages bearing on public health, safety, or consumer protection--the kinds of harms which have justified greater regulation simply do not exist here. The United States Supreme Court has upheld regulations on commercial speech on the basis of such speech's potential to mislead. (See Rubin v. Coors Brewing Co., supra, 514 U.S. at p. ----, 115 S.Ct. at p. 1594 (Stevens, J., conc. opn.) [commercial speech doctrine Traditional rationales for treating commercial speech differently under the First Amendment rest on "the importance of avoiding deception and protecting the consumer from inaccurate or incomplete information in a realm in which the accuracy of speech is generally ascertainable by the speaker." (Rubin v. Coors Brewing Co., supra, 514 U.S. at p. ----, 115 S.Ct. at p. 1594.) Moss's challenge to the kiwifruit assessments simply does not implicate these concerns. Accordingly, commercial speech analysis does not apply, and the assessments must satisfy the higher level of scrutiny required for other restrictions on speech.
In addition to freedom of speech, this case implicates associational concerns. The strict scrutiny standard is "typically appl[ied] in cases involving burdens on speech and associational rights." (Smith v. Regents of University of California, supra, 4 Cal.4th at p. 857, 16 Cal.Rptr.2d 181, 844 P.2d 500.) Unlike the associations in Roberts (i.e., the Jaycees) and Abood (i.e. a union), here the Commission's only statutory purpose is to collect funds from and to speak on behalf of Moss and other kiwifruit handlers. Similarly, the analogous federal circuit court cases also involved government programs with multiple purposes and thus are distinguishable. (Wileman Bros., supra, 58 F.3d at p. 1367 [marketing orders set standards for fruit maturity and minimum size as well as imposing assessments for generic advertising program]; Cal-Almond, supra, 14 F.3d at p. 433 ["The [California Almond] Board engages in a variety of activities, including research and development, marketing, quality control, and volume regulation"]; Frame, supra, 885 F.2d at p. 1122 [act created research program as well as promotion program].) The forced association here is for the sole purpose of compelling speech, and "where the government requires a publicly identified group to contribute to a fund earmarked for the dissemination of a particular message associated with that group, the government has directly focused its coercive power for expressive purposes." (Frame, supra, 885 F.2d at p. 1132.)
Due to the inapplicability of commercial speech analysis, and with the Commission's sole purpose being speech, the assessments are constitutional only if they serve a compelling state interest. An infringement on the right to associate for expressive purposes "may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." (Roberts, supra, 468 U.S. at p. 623, 104 S.Ct. at p. 3252.) Roberts held associations are entitled to full First Amendment protection even when their expressive activities are commercial. (See id. at pp. 633-635, 104 S.Ct. at pp. 3257-3259 (O'Connor, J., conc. opn.) [contending commercial, as contrasted with non-commercial, association should receive less constitutional protection].) Thus, as the Commission concedes, and indeed argues, the challenged assessments must satisfy the "[W]e must identify with care the interests the State itself asserts." (Edenfield v. Fane, supra, 507 U.S. at p. 768, 113 S.Ct. at p. 1798, 123 L.Ed.2d at p. 553.) We are not presented here with a government interest in protecting the consumer. (See Central Hudson, supra, 447 U.S. at p. 578, 100 S.Ct. at pp. 2357-2358 65 L.Ed.2d at p. 359 (Blackmun, J., conc. opn.) [differences between commercial speech and other speech "justify a more permissive approach to regulation of the manner of commercial speech for the purpose of protecting consumers from deception or coercion ...."]; see also United States v. Sullivan, supra, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297 [upholding federal law requiring warning labels on drugs].) Rather, we are asked to uphold a state-mandated, privately-funded advertising campaign for a particular variety of fruit.
The United States Supreme Court has referred to constitutionally protected "freedom of association" in two distinct senses: intimate association and expressive association. The "intimate association" relationships protected by the Fourteenth Amendment "are those that attend the creation and sustenance of a family" and similar "highly personal relationships." (Roberts v. United States Jaycees, supra, 468 U.S. at pp. 618-619, 104 S.Ct. at pp. 3249-3250.) Freedom of "expressive association" permits groups to engage in the same activities in which individuals may engage under the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion. (Ibid.) This case involves freedom of "expressive association."
The sole purpose of the statutory scheme is to compel association of kiwifruit handlers and to provide funds for generic advertising and promotion of kiwifruit by a governmental construct. Kiwifruit handlers are forced to fund the Commission to enable it to deliver public pronouncements which the handlers did not utter and in a context and manner with which the handlers may not agree. Not only could reasonable minds differ as to the promotional efficacy of "a little price card with a pretty picture on it," but Moss contends he receives no benefit from the Commission.
In addition to testifying he derived no benefit from the Commission, Moss testified one of his wholesalers had never even heard of the Commission. This is hardly surprising. Even as overall kiwifruit sales have grown appreciably, the number of California producers has declined, as has the net return per acre.
In finding a "compelling interest" behind the Beef Promotion and Research Act of 1985, Frame noted the beef industry was a "vital sector of the national economy" and a continuation of the trend of losses in that industry "would endanger not only the country's meat supply, but the entire economy." (Frame, supra, 885 F.2d at p. 1134 & fn. 12.) Here, however, the state has not established a "compelling interest" in the promotion of a commodity statutorily acknowledged to be "an exotic subtropical fruit ... not heavily consumed in this country or abroad." (§ 68002.) Moreover, while the state may have some interest in the health of the kiwifruit industry, it does not follow it has a compelling interest in mandating the kiwifruit industry to support this promotional campaign.
Indeed, the facts presented appear to raise the possibility of Fifth and Fourteenth Amendment violations. Although governmental regulation may be upheld against a regulatory taking challenge after considering " 'the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations' " (Ruckelshaus v. Monsanto Co. (1984) 467 U.S. 986, 1005, 104 S.Ct. 2862, 2874, 81 L.Ed.2d 815, 834, citation omitted), the regulations here do not satisfy the basic necessity of an "essential nexus" between a "legitimate state interest" and the exaction. (See Dolan v. City of Tigard (1994) 512 U.S. 374, ----, 114 S.Ct. 2309, 2317, 129 L.Ed.2d 304, 317.) This case bears some resemblance to Missouri Pacific R. Co. v. Nebraska (1896) 164 U.S. 403, 417, 17 S.Ct. 130, 135, 41 L.Ed. 489, 495, in which the Supreme Court concluded there had been a taking of private property for the private use of a group of private individuals voluntarily associated together for their own benefit. "The taking by a state of the private property of one person or corporation, without the owner's consent, for the private use of another, is not due process of law, and is violation of the [Fourteenth Amendment]." (Ibid.)
Judge Sloviter makes the point persuasively in her dissent in Frame, supra: "The only 'regulatory' aspect of this program which the majority has been able to identify is the 'attempt to bolster the public image of a product in order to increase consumer demand.' The advertising of a product does not fit within the accepted meaning of 'regulation.' ... I do not view the compulsion that all sellers of cattle contribute financially to the industry message by proclaiming in Madison Avenue style the value of beef over the radio and television stations of the United States to be a regulatory program. [p] Moreover, there is no evidence the assessments serve to implement any purported interest in enhancing the returns of California's kiwifruit producers and handlers. Despite a full and fair opportunity to present its case in the trial court, the Commission has not demonstrated its advertising and promotional campaign has had any effect whatsoever on grower returns. Nor has the Commission presented evidence demonstrating the state's interest cannot be achieved through less restrictive means. Indeed, the Commission has presented no evidence demonstrating the generic promotion financed by the assessments sells kiwifruit more effectively than the targeted marketing efforts of individual handlers. "[E]ach handler knows best how to sell his own [kiwifruit]; we are unwilling to presume, in the absence of hard evidence to the contrary, that a government agency is better at marketing than an individual businessperson." (Cal-Almond, supra, 14 F.3d at p. 439.)
A passage from Posadas de Puerto Rico Assoc. v. Tourism Co. 478 U.S. at page 342, 106 S.Ct. at page 2977, is often quoted as authority to presume all advertising increases demand: "We think the legislature's belief [that advertising of casino gambling would serve to increase the demand for the product advertised] is a reasonable one...." Not only was this observation specific to the facts of the Posadas case, but to presume the mere fact of advertising increases demand for a particular product or service, regardless of the particular message, medium, or target audience, is empirically unsound. Moreover, to presume the Commission's efforts have had a positive effect on the demand for kiwifruit is particularly inappropriate here, in light of the absence of advertising from 1990 to 1992, the decrease in the number of kiwifruit growers, and the admission by Harner the decline in the number of acres devoted to growing kiwifruit was due to the reduced net return per acre. In addition, the Commission demonstrated a lack of fealty to its statutory mandate by engaging in costly, unproductive litigation which rendered it largely incapable of delivering any message whatsoever for more than a year.
The statutory provisions involved in Cal-Almond and Frame--the California Almond Marketing Order and the Beef Promotion Act respectively--both permitted offsets for handler-paid advertising against the assessments imposed. (See Cal-Almond, supra, 14 F.3d at p. 433; Frame, supra, 885 F.2d at p. 1124.) No such offsets are permitted from the assessments at issue here.
The Commission has utterly failed to establish (1) the state has a compelling interest in promoting the kiwifruit industry, and (2) the statutory assessments resulted in selling more kiwifruit and increasing returns to handlers. There simply is no basis to conclude these compelled contributions are sufficiently narrowly tailored to achieve the goal of promoting kiwifruit. Accordingly, the assessments DISPOSITION
The judgment is reversed. Defendants shall recover their costs on appeal.
SCOTLAND, Acting Presiding Justice, concurring.
Kiwifruit grower David Moss contends, and the California Kiwifruit Commission agrees, that the Commission's assessments--which are the equivalent of compelled monetary support of the Commission's commercial speech--implicate Moss's First Amendment right to refrain from associating with others. Accordingly, the parties assert that "strict scrutiny applies" in determining whether the assessments violate Moss's constitutional rights: "Infringements on freedom of association 'may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.' " (Chicago Teachers Union v. Hudson (1986) 475 U.S. 292, 303, n. 11, 106 S.Ct. 1066, 1074, fn. 11, 89 L.Ed.2d 232, 245, quoting Roberts v. United States Jaycees (1984) 468 U.S. 609, 623, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462, 475.)
Applying this heightened level of scrutiny, the lead opinion concludes that the assessments imposed on Moss to help defray costs of the Commission's program to promote the purchase of California-grown kiwifruit are unconstitutional. Accordingly, the trial court's judgment upholding the assessments must be reversed.
While I concur in the result reached by Justice Nicholson, I write separately because I question whether the freedom of association is implicated sufficiently to justify application of the strict scrutiny standard in this case of compelled commercial speech. If not, the assessments are subject to an intermediate standard of review, something less than strict scrutiny but more than "mere rational basis review." (Cincinnati v. Discovery Network (1993) 507 U.S. 410, 417, fn. 13, 113 S.Ct. 1505, 1510, fn. 13, 123 L.Ed.2d 99, 108-109; Central Hudson Gas v. Public Service Comm'n (1980) 447 U.S. 557, 564, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341, 349-350.)
Being forced to associate with, or support monetarily, views with which one disagrees is the evil underlying compelled association. (Roberts v. United States Jaycees, supra, 468 U.S. at p. 623, 104 S.Ct. at pp. 3252-3253, 82 L.Ed.2d at pp. 474-475; Abood v. Detroit Board of Education (1977) 431 U.S. 209, 234-235 and fn. 31, 97 S.Ct. 1782, 1799-1800 and fn. 31, 52 L.Ed.2d 261, 284.) Strict scrutiny is applied in assessing the constitutionality of such compelled association because "at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State." (Abood v. Detroit Board of Education, supra, 431 U.S. at pp. 234-235, 97 S.Ct. at p. 1799, 52 L.Ed.2d at p. 284.)
Here, Moss is not compelled to associate with the Commission other than via monetary support, and he has not identified any messages promulgated by the Commission's promotion program with which he disagrees. (Lehnert v. Ferris Faculty Assn. (1991) 500 U.S. 507, 522, 111 S.Ct. 1950, 1960-1961, 114 L.Ed.2d 572, 591 ["the extent of one's disagreement with the subject of compulsory speech is relevant to the degree of impingement upon free expression that compulsion will effect"].) Moreover, there is no claim of compelled support of political views, religious views, or other core speech entitled to the more demanding protection afforded by the strict scrutiny standard of review. (McIntyre v. Ohio Elections Comm'n (1995) 514 U.S. 334, ----, 115 S.Ct. 1511, 1519, 131 L.Ed.2d 426, 440.)
Instead, the crux of Moss's complaint concerns coerced monetary support of commercial speech intended to advance the interests of Moss's industry. In effect, he complains not about the message (consumers should buy kiwifruit) but about the messenger (a state commission funded in part by assessments on California Kiwifruit producers). In Moss's view, there is no constitutional basis to compel him to support state-controlled commercial speech beneficial to his business As has been observed, it is difficult to find the appropriate framework to analyze the constitutionality of the kind of compelled speech at issue in this case. (U.S. v. Frame (3d Cir.1989) 885 F.2d 1119, 1146, dis. opn. of Sloviter, J.) Because the compelled commercial speech here implicates the freedom of association only to the extent Moss is required to provide financial support for a commercial message with which he does not disagree in substance, I believe the strict scrutiny test is inappropriate. In substance, this controversy is about the regulation of commercial speech. Therefore, in determining whether the kiwifruit marketing program assessments improperly infringe upon the right of association, this court should apply the less stringent standard for reviewing commercial speech regulations enunciated in Central Hudson Gas v. Public Service Comm'n, supra, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341.
To establish that a regulation of commercial speech is constitutional, the state must assert a substantial interest to be achieved by the regulation; the regulatory technique must be in proportion to that interest; and the regulation must be designed carefully to achieve the state's goal, i.e., the regulation directly advances the significant state interest involved (the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose), and is narrowly tailored to serve the governmental interest (substantially excessive regulation of commercial speech cannot survive). (Central Hudson Gas v. Public Service Comm'n, supra, 447 U.S. at p. 564, 100 S.Ct. at p. 2350, 65 L.Ed.2d at pp. 349-350; Board of Trustees, S.U.N.Y. v. Fox (1989) 492 U.S. 469, 478-479, 109 S.Ct. 3028, 3033-3034, 106 L.Ed.2d 388, 402-403.) The government is not required to establish that the manner of regulation is the least severe that will achieve the desired end. Instead, it must demonstrate "a fit between the legislature's ends and the means chosen to accomplish those ends--a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served; that employs not necessarily the least restrictive means but, ... a means narrowly tailored to achieve the desired objective." (Board of Trustees, S.U.N.Y. v. Fox, supra, 492 U.S. at p. 480, 109 S.Ct. at p. 3035, 106 L.Ed.2d at pp. 403-404, internal quotation marks and citations omitted.) The state must carefully calculate the costs and benefits associated with the burden on speech imposed by its regulation. (Cincinnati v. Discovery Network, supra, 507 U.S. at pp. 416-417, 113 S.Ct. at pp. 1509-1510, 123 L.Ed.2d at p. 108.) If there are numerous and obvious less-burdensome alternatives, this is a relevant consideration in determining whether the "fit" between the ends and means is reasonable. (Id., at p. 417, fn. 13, 113 S.Ct. at p. 1510, fn. 13, 123 L.Ed.2d at p. 108-109, fn. 13.)
In identifying the asserted state interests, courts are not permitted to supplant the precise interests put forward by the state with other suppositions. (Edenfield v. Fane (1993) 507 U.S. 761, 766-768, 113 S.Ct. 1792, 1798-1799, 123 L.Ed.2d 543, 553.)
The Commission asserts that the state has a substantial interest in the preservation and maintenance of the agricultural industry as a whole since agriculture is California's number one industry. (Food & Agr.Code, § 802, subd. (a).) Because of this interest, California has enacted more than two dozen commodity-specific promotion programs, including the kiwifruit promotion program in question. (See Div. 22 (commencing with § 64001) of the Food & Agr.Code.) According to the Commission, expansion of the kiwifruit industry helps to promote and protect the agricultural industry and, thus, to provide "a source of substantial and necessary revenues for the state and employment for its citizens."
Food and Agricultural Code sections 68001 and 68002 declare that the state has an interest in expanding the kiwifruit industry by creating new markets in order to "provide an important source of employment for many people in the state, a high proportion of whom are from underprivileged and historically deprived segments of the population." Fostering employment opportunities is a substantial state interest and to the extent expansion of the kiwifruit industry helps to preserve California's agricultural industry, thus providing economic benefits to the state and its residents, this too is a substantial state interest. (Cal-Almond, Inc. v. U.S. Dept. of Agriculture (1993) 14 F.3d 429, 437.)
More troublesome, however, are questions concerning whether the Commission's assessment program to fund a kiwifruit marketing effort advances the aforementioned interests and whether it is narrowly tailored to achieve the desired objectives. The Commission, as the party seeking to uphold the commercial speech regulation, carries the burden of justifying it, and this burden is not satisfied by mere speculation or conjecture. (Edenfield v. Fane, supra, 507 U.S. at pp. 770-771, 113 S.Ct. at p. 1800, 123 L.Ed.2d at p. 555.)
The Commission provided no evidence that its kiwifruit marketing program directly advances the asserted interest in providing or expanding employment opportunities. In fact, the record discloses that the number of growers has decreased from 1,000 to 600, and that the acreage devoted to growing kiwifruit has dropped from 8,000 acres to 6,800 acres. This indicates there are fewer employment opportunities in the kiwifruit industry since commencement of the Commission's marketing program.
The other stated interest is the expansion of the kiwifruit industry through advertising and promotion to preserve California's agricultural industry and, thus, provide economic benefits to the state and its residents. It may be presumed that advertising increases consumption (Posadas de Puerto Rico Assoc. v. Tourism Co. (1986) 478 U.S. 328, 342, 106 S.Ct. 2968, 2977, 92 L.Ed.2d 266, 281, Cal-Almond, Inc. v. U.S. Dept. of Agriculture, supra, 14 F.3d at p. 439), and the record discloses that kiwifruit consumption in the United States has increased by 980 percent. In addition, production has increased from 1.2 million trays of fruit in 1980 to approximately 12.7 million trays in 1992, with 85 percent of the fruit being marketed in the United States and 15 percent sold in foreign markets. This may be sufficient to support an inference that the Commission's promotion program has advanced the asserted interest of expanding the industry and creating new markets. There is no evidence, however, that producers would not advertise or promote the sale of their crops absent the compelled assessments for the Commission's mass promotional efforts. Therefore, because the Commission's marketing program is funded with money that presumably would have been spent by individual producers on their own advertising and promotional efforts, the Commission's program must be compared to a situation where producers spent their assessments on their own marketing as opposed to comparing it to a no-advertising situation. (Cal-Almond, Inc. v. U.S. Dept. of Agriculture, supra, at p. 439.)
The Commission presented no studies or evidence of any kind tending to show that the Commission's generic promotion financed by the assessments sells kiwifruit more effectively than specific, targeted marketing efforts of individual producers. (Cal-Almond, Inc. v. U.S. Dept. of Agriculture, supra, 14 F.3d at p. 439; see also Edenfield v. Fane, supra, 507 U.S. at pp. 770-773, 113 S.Ct. at pp. 1800-1801, 123 L.Ed.2d at pp. 555-556.) Furthermore, the Commission presented no evidence that individual promotional efforts are insufficient to advance the state's interest in expanding the kiwifruit industry, and it is inappropriate to presume that a government agency is better at marketing than an individual business person. (Cal-Almond, Inc. v. U.S. Dept. of Agriculture, supra, at p. 439.)
The Commission posits, and the trial court found, that individual advertising is not an effective alternative because growers acting Although legislative declarations in Food and Agricultural Code sections 68002 and 68003 intimate that national and international advertising is necessary to expand the kiwifruit industry and that the Commission, funded by assessments, is necessary for the efficient development and management of such a program, no evidence is presented in support of these declarations. A mere assertion that a regulation directly advances, or is necessary to advance, a governmental interest is insufficient to justify it; rather, a governmental body seeking to sustain a regulation on commercial speech must demonstrate that "the harms it recites are real" and that its regulation "will in fact alleviate them to a material degree." (Edenfield v. Fane, supra, 507 U.S. at p. 771, 113 S.Ct. at p. 1800, 123 L.Ed.2d at p. 555; Sable Communications v. FCC, supra, 492 U.S. at p. 129, 109 S.Ct. at p. 2838, 106 L.Ed.2d at p. 107; Anheuser-Busch v. Mayor and City Council (D.Md.1994) 855 F.Supp. 811, 814.) Furthermore, where a law is subjected to a colorable First Amendment challenge, the deference afforded to legislative findings does not foreclose independent judicial review of the facts to assure that, in formulating its judgment, the legislative body has drawn reasonable inferences based on substantial evidence. (Turner Broadcasting System v. FCC (1994) 512 U.S. 622, ----, 114 S.Ct. 2445, 2470-2471, 129 L.Ed.2d 497, 532-533; Sable Communications v. FCC, supra, at p. 129, 109 S.Ct. at p. 2838, 106 L.Ed.2d at p. 107.) Here, the Commission presented no evidence, let alone substantial evidence, supporting the aforementioned legislative declarations.
Relying on Abood v. Detroit Board of Education, supra, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (Abood ), the Commission argues that compelled contributions are required to prevent "free riders" from taking advantage of a generic mass advertising program paid for by others. (Id., at p. 222, 97 S.Ct. at pp. 1792-1793, 52 L.Ed.2d at pp. 275-276.) However, the circumstances in Abood are distinguishable from those in the present case.
In Abood, the United States Supreme Court addressed the constitutionality of an "agency shop" arrangement, whereby employees who are not union members nevertheless are required to pay the union an amount equal to union dues as a condition of employment. (431 U.S. at p. 211, 97 S.Ct. at p. 1787, 52 L.Ed.2d at p. 269.) The union in question was the exclusive representative of teachers employed by the Detroit Board of Education and, as such, it had sole authority to bargain collectively and negotiate conditions of employment with the Board. (Id., at pp. 211-212, 220-221, 97 S.Ct. at pp. 1787-1788, 1791-1792, 52 L.Ed.2d at pp. 269, 275.) This prevented the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment and prevented inter-union rivalries from creating dissension in the work force. (Id., at pp. 220-221, 97 S.Ct. at pp. 1791-1792, 52 L.Ed.2d at p. 275.) In return, the union was obligated to represent all employees, including those who did not belong to the union. (Id., at p. 221, 97 S.Ct. at p. 1792, 52 L.Ed.2d at p. 275.) In holding the compelled dues did not violate the First Amendment to the extent the dues were germane to collective-bargaining activity, the Supreme Court pointed out Congress's vital policy interest in promoting peaceful labor relations and noted that compelled dues counteracted the incentive that employees might otherwise have to become "free riders," i.e., to refuse to contribute to the union while obtaining the benefits of union representation. (Id., at pp. 219, 221-226, 97 S.Ct. at pp. 1791, 1792-1795, 52 In contrast, the state's interest underlying the kiwifruit marketing program does not include the advancement or preservation of harmony among kiwifruit growers. Hence, the presence of "free riders" does not have the same significance as in Abood. More importantly, unlike the nonunion members who could not bargain individually with their employer concerning employment conditions, producers of kiwifruit are not precluded from pursuing individual advertising programs. There is no evidence that producers who might opt not to participate in a voluntary generic mass advertising program would decline to expend any resources individually promoting and marketing their own produce, contrary to their own economic best interest. In other words, it is not a given that the absence of compelled assessments will result in "free riders."
To the extent the state has a legitimate interest in preventing "free riders," no reason has been advanced why it could not satisfy this concern and meet its interest of expanding the kiwifruit industry by requiring growers either to pay the assessments or spend an equivalent amount on individual advertising. Although this still would result in compelled commercial speech (Cal-Almond, Inc. v. U.S. Dept. of Agriculture, supra, 14 F.3d at p. 435), it would be less restrictive of the growers' First Amendment rights as it would allow a grower to decline to participate in the mass advertising program, thereby precluding coerced association.
As it stands, the program permits large growers, who produce the majority of kiwifruit and stand to gain the most from an expanding market, to pass a referendum obligating all growers, including small growers such as Moss who have little hope of marketing their crops on an international or even national level, to pay an assessment which in effect subsidizes the larger growers' marketing efforts. (Food & Agr.Code, §§ 68092, 68101, 68105.) As Moss explained, the cost to him as a small grower is high as he receives little or no direct benefit from the generic marketing program and cannot afford to pay for both the Commission's generic program and his own individual marketing efforts which do enhance directly his ability to sell his crop in the local area where he markets his kiwifruit. In other words, Moss, and others like him, are compelled to support commercial speech which is of little benefit to them; as a consequence, they are precluded financially from pursuing their individual commercial speech rights, which are more effective at marketing their kiwifruit. Perhaps it is for this reason that the number of growers and acreage devoted to growing kiwifruit have been reduced.
The Commission has not demonstrated a reasonable fit between the state's interests and the means chosen, or that the cost is in proportion to the interests served. (Board of Trustees, S.U.N.Y. v. Fox, supra, 492 U.S. at p. 480, 109 S.Ct. at pp. 3034-3035, 106 L.Ed.2d at p. 404.) Because the Commission has failed to meet its burden of establishing that the marketing program directly advances a significant state interest and is narrowly tailored to achieve the desired objective, the trial court's judgment must be reversed.
RAYE, Associate Justice, dissenting.
I share the passion of my colleagues for the First Amendment. As Justice Jackson so perceptively declared, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (West Virginia Bd. of Educ. v. Barnette (1942) 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628.) Freedom of speech and association are crucial elements of our democratic system, essential if society is to evolve peacefully. (See Privilege, Malice and Intent, 8 Harv. L.Rev. (1894); Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine, 27 Stan. L.Rev 719 (1975).) Some of the most eloquent words spoken by the founders of our country relate to freedom of speech. The words of Thomas Jefferson, "'to compel a man to furnish contributions of money for It is difficult, however, to bring the facts of this litigation within these lofty principles of First Amendment jurisprudence. This is not a case about free speech; it is a case about money. It does not involve what Jefferson feared: compelled contributions to support abhorrent beliefs. Moss and the Kiwifruit Commission share a common belief that California kiwifruit are delectable and worthy of consumption in great quantity. As the concurring opinion observes "he complains not about the message ... but about the messenger." He would rather not pay the Commission for a function he believes could be performed better by others. His complaint may have merit; government has shown itself particularly inept in the public relations arena, but does it implicate the First Amendment? I think not. There is no First Amendment right to choice of public relations firms.
Moss stands on far different footing than the citizens in other compelled speech and association cases. His complaint is quite different from that of the motorist in Wooley v. Maynard (1977) 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752, who did not wish to "Live Free or Die," and the school children in West Virginia State Bd. of Educ. v. Barnette, supra, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, who professed religious objections to saluting the flag. 1 His position bears no resemblance to that of attorneys who successfully asserted that the use of bar dues "to finance political and ideological activities ... with which they disagree " impermissibly infringed on their First Amendment rights. Keller v. State Bar of California (1990) 496 U.S. 1, 9, 110 S.Ct. 2228, 2233, 110 L.Ed.2d 1, and cases collected at annotation: 44 ALR 4th 672.) And he cannot compare himself with the public sector agency shop employees whose right to abstain from financial support for political views with which they disagreed won protection in Abood v. Detroit Board of Education, supra, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 or the dissenting University of California students who did not wish their student fees to be used to disseminate ideas with which they disagreed. (Smith v. Regents of University of California, supra, 4 Cal.4th 843, 16 Cal.Rptr.2d 181, 844 P.2d 500; see also Chicago Teachers Union v. Hudson, supra, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 and cases collected at annotation, 92 ALR Fed 893.)
The Court's opinion in Abood was constructed in part on the prior decision in Buckley v. Valeo (1976) 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 where the Court ruled limitations on political contributions unconstitutional. Referring to Buckley, the Court in Abood, supra, 431 U.S. at p. 235, 97 S.Ct. at pp. 1799-1800 declared: "The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. For at the heart of the First Amendment is the notion than an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and by his conscience rather than coerced by the State." (Footnote omitted.) Similarly, in Chicago Teachers Union v. Hudson, supra, 475 U.S. at p. 305, 106 S.Ct. at p. 1075, the Court spoke of "the quality of respondent's interest in not being compelled to subsidize the propagation of political or ideological views that they oppose."
There is symmetry in rules that forbid restrictions on the expression of a particular point of view and also prohibit compelled support for a view with which one disagrees. The right to silence is also constitutionally protected; one cannot be compelled to speak out, whatever the view expressed. (Wooley v. Maynard, supra, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435: "[T]he right of freedom of Moss, however, makes no claim that he is being compelled to support a message with which he disagrees, nor does he profess a desire to remain silent on the issue of kiwifruit. 2 He simply wishes to express his thoughts through a different vehicle of communication. 3 His views on the wisdom of the Commission may be correct. But the First Amendment was never designed to protect him from this particular form of government folly. The observation of the concurring opinion that "it is difficult to find the appropriate framework to analyze" the First Amendment issues involved in this case is insightful. In my view, the difficulty reflects an absence of authentic First Amendment issues.
In the lexicon of constitutional jurisprudence, Moss' disability could be termed a problem of "standing." Moss is no different from demonstrators in Donohoe v. Duling (4th Cir.1972) 465 F.2d 196, who condemned the "chilling effect" of police surveillance activities while soliciting publicity for themselves and their cause. (Id. at p. 199.) They could not claim to vindicate the constitutional rights of more timorous individuals who were "chilled" by the surveillance. Nor can Moss, who professes no disagreement with the Commission's message, claim to represent the constitutional interests of those who do. However the problem transcends Moss' individual standing. It is difficult to conceive how any kiwifruit grower could claim disagreement with the promotional messages of the Commission. To the extent the Commission undertakes to expend funds in support of other messages to which Moss takes exception, the remedy is not to declare all assessments unconstitutional; rather, the court should compel a pro rated reduction in assessments to exclude support for such offensive messages. 4 (See e.g. Keller, supra, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1.)
Though unnecessary to my analysis, I feel constrained to comment on the appropriate standard to apply in evaluating a viable claim of compelled commercial speech under the First Amendment. The federal courts have evaluated challenges to compelled commercial speech under the same three-part test applicable to restrictions on commercial speech. (Frame, supra, 885 F.2d 1119.) The lead opinion disagrees with the federal cases, asserting it is " 'commercial speech's
5There is a distinction between restricting the expression of an idea and compelling an individual to endorse the idea. Restrictions on expression preserve the status quo; the idea is simply not shared with others. The individual is deprived of the opportunity to shape the public debate. However, one who is compelled to endorse a repugnant thought or to speak when silence would be preferred loses more than an opportunity to shape public opinion. The status quo is altered and public opinion may be changed in a manner the conscripted speaker opposes. One who would otherwise be inclined to remain silent may be compelled to speak in order to correct the record created by the compelled endorsement. (See e.g. Pacific Gas & Elec. v. California P.U.C. (1986) 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1.)
Still, there is a difference from being compelled to support an abhorrent ideological message and being compelled to endorse a commercial pitch. The First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." (Roth v. United States (1957) 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, 1506.) Compelled political speech distorts the marketplace of ideas the First Amendment was designed to protect. In contrast, speech which does no more than promote a commercial product occupies a "subordinate position" under the First Amendment and does not raise the same concerns as ideological speech. (Ohralik v. Ohio State Bar Assn., supra, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444.) This is true whether such speech is restricted or compelled. In either case the First Amendment implications are less pressing than in the case of ideological speech.
The lead opinion properly recognizes this case involves not only freedom of speech but freedom of association. In Frame, supra, 885 F.2d 1119 the court purported to judge the freedom of commercial speech claim by one standard and the freedom of association claim by another, more exacting strict scrutiny standard. In my view, the standard should not differ where the freedom of association is a freedom of "expressive association" premised on an association of persons engaged in commercial expression. Freedom of association is not expressly protected by the constitution. It is a right implied from other protected First Amendment rights. Where the basic right of free speech is limited by the commercial nature of the speech, the freedom to associate for the purpose of disseminating the commercial message is entitled to no greater protection. (Cf. Roberts v. United States Jaycees, supra, 468 U.S. at p. 632, et seq., 104 S.Ct. at p. 3257, et seq., 82 L.Ed.2d at p. 480, et seq. (O'Connor, J. concurring).)
In summary I believe the appellant has not established a First Amendment Claim. 6 His
The lead opinion also declares that to characterize plaintiff's challenge as "merely" a complaint with the messenger is an oversimplification as the message cannot be divorced from its presentation. Thus, we are told, a luxury car ad which includes a video clip of Pavarotti, et al., would convey a different message from one featuring the Three Stooges. Be that as it may, plaintiff, though suggesting the Commission may have much in common with the Three Stooges, does not profess that the message here at issue has been warped by the messenger. We are thus not required to consider whether the Constitution protects good taste in advertising.