CANTIL-SAKAUYE, C. J. —
Pursuant to the Ketchum Act (Food & Agr. Code, § 65500 et seq.; sometimes hereafter referred to as the Act), the
The Commission responds that the Act's compelled-subsidy program does not violate article I, section 2 because the promotional messaging it underwrites represents government speech, as opposed to private speech. Both the Commission's position and that of plaintiffs recognize this court's prior determinations that a government program that compels market participants to subsidize generic promotional speech over their objections implicates article I, section 2 (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 509-510 [101 Cal.Rptr.2d 470, 12 P.3d 720] (Gerawan I)) and is subject to intermediate scrutiny (Gerawan Farming, Inc. v. Kawamura (2004) 33 Cal.4th 1, 6 [14 Cal.Rptr.3d 14, 90 P.3d 1179] (Gerawan II)) — if these communications represent private speech. Gerawan II also indicated, however, that significantly more deference would be accorded to a compelled-subsidy scheme that funds only government speech. (Id., at pp. 26-28.) In Gerawan II, whether the challenged program produced government speech was left for development and determination on remand. (Id., at p. 28.) This proceeding picks up where Gerawan II left off, presenting the question whether promotional speech generated by a compelled-subsidy program amounts to government speech and for that reason avoids heightened scrutiny under article I, section 2.
We conclude that the Commission's advertisements and related messaging represent government speech, and hold that the Ketchum Act's compelled-subsidy scheme does not violate plaintiffs' rights under article I, section 2. The government speech doctrine recognizes that a properly functioning government must express potentially controversial viewpoints as a matter of course, and that payers of taxes and fees may be required to subsidize this speech, even when they disagree with it, without implicating their constitutional right to free speech. Yet, as the United States Supreme Court recently cautioned, although "the government-speech doctrine is important — indeed, essential — it is a doctrine that is susceptible to dangerous misuse." (Matal v. Tam (2017) 582 U.S. ___ [198 L.Ed.2d 366, 137 S.Ct. 1744, 1758] (Matal).) Therefore, courts must take care in distinguishing government speech from
Here, the relevant circumstances establish sufficient government responsibility for and control over the messaging at issue for these communications to represent government speech that plaintiffs can be required to subsidize without implicating their rights under article I, section 2. Meanwhile, no triable issue of fact exists that the Ketchum Act violates plaintiffs' article I, section 2 rights under a different theory, such as one asserting that the statute's compelled-assessment scheme effectively prevents them from speaking. Accordingly, we hold that plaintiffs have advanced no viable claim under article I, section 2. Because the Court of Appeal rejected plaintiffs' challenge to the Ketchum Act on similar grounds, we affirm the judgment below.
California leads the nation in the production of agricultural commodities, with its farms and ranches generating more than $47 billion in value in the 2015 crop year. (Cal. Dept. of Food and Agriculture, California Agricultural Statistics Review 2015-2016 (2017) pp. 1-2 (Agricultural Statistics Review).) Table grapes are among the agricultural products for which this state is well known. Table grapes are distinguished from other types of grapes, such as raisin grapes and wine grapes, in that they are generally eaten while fresh instead of being consumed only after being dried or turned into wine. (See Food & Agr. Code, § 65523.)
The Ketchum Act responded to challenging market conditions encountered by the state's producers of fresh grapes in the 1960s.
The Ketchum Act begins with a series of findings by the Legislature. Several of these findings concern the importance assigned to the production and marketing of California fresh grapes, and the challenges faced by growers of these grapes. These findings include, "[g]rapes produced in California for fresh ... consumption comprise one of the major agricultural crops of California, and the production and marketing of such grapes affects the economy, welfare, standard of living and health of a large number of citizens residing in this state" (§ 65500, subd. (a)); and "[i]ncreased plantings of vineyards and improved cultural practices for the production of California grapes for fresh ... consumption have increased and will continue to increase the production thereof and unless the fresh ... consumption of California grapes is increased by the expansion of existing markets and the development of new markets, the interests of the fresh grape industry of California, and the public interest of the people of this state, will be adversely affected" (id., subd. (b)). Furthermore, the Legislature found that "[t]he inability of individual producers to maintain or expand present markets or to develop new or larger markets for such grapes results in an unreasonable and unnecessary economic waste of the agricultural wealth of this state" (id., subd. (c)); and "[s]uch conditions and the accompanying waste jeopardize the future continued production of adequate supplies of fresh grapes for human consumption for the people of this and other states, and prevent producers from obtaining a fair return for their labor, their farms and their production. As a consequence, the purchasing power of such producers has been in the past, and may continue to be in the future unless such conditions are remedied, low in relation to that of other people engaged in other gainful occupations within the state, and they are thereby prevented from maintaining a proper standard of living and from contributing their fair share to the support of the necessary governmental and education functions, thus tending to increase unfairly the tax burden of other citizens of the state" (id., subd. (d)).
The Act created the California Table Grape Commission to effectuate the policies set forth in the statute's findings. (§ 65550.)
The Ketchum Act confers upon the Commission "powers and duties" (§ 65572) that include responsibility to "administer and enforce [the Act], and to do and perform all acts and exercise all powers incidental to or in connection with or deemed reasonably necessary, proper or advisable to effectuate the purposes of" the Act. (§ 65572, subd. (c).) The Commission may hire officers and other personnel to assist with these responsibilities. (Id., subd. (d).)
To pay for the Commission's activities, the Act authorizes an assessment on shipments of fresh grapes. This assessment is set annually by the Commission, but by statute may not exceed .006522 cents per pound of shipped grapes. (§§ 65572, subd. (l), 65600.) These assessments are paid to the Commission by shippers, each of which is in turn authorized to collect the assessments from the responsible producers. (§§ 65604, 65605.) In the event of nonpayment of an assessment, or if the Commission believes a violation of the Act, or any rule or regulation promulgated under the Act, has occurred, it may bring an action in its name for collection, civil penalties, or injunctive relief. (§ 65650.) Violations of the Act, including a shipper's refusal to supply the Commission with certain information regarding its supplier or suppliers of grapes, are punishable as misdemeanors. (§ 65653.) The Act provides that "[t]he State of California shall not be liable for the acts of the [C]ommission or its contracts." (§ 65571.)
The Commission assumed its responsibilities under the Ketchum Act only after a referendum among producers. (§ 65573.) The Commission's operations may be suspended through a similar process. If 11 members of the Commission make a finding that the Act "has not tended to effectuate its declared purposes," or 20 percent of producers file a petition with the Secretary requesting suspension of the Commission's activities, the Secretary shall cause a producer referendum to be conducted. (§ 65660.) If a sufficient number of producers participate in this referendum and vote for suspension, "the [Secretary] shall declare the operation of the provisions of [the Act] and of the [C]ommission suspended, effective upon expiration of the marketing season then current." (§ 65661, subd. (b).) Furthermore, the Act provides for a referendum among producers every five years to determine whether the Commission's operations will continue. (§ 65675.) To date, all of these referenda have led to the continuation of the Commission and its operations.
The Commission divides its activities into five general categories — research, trade management, issues management, advertising, and education and outreach.
The Commission's advertising appears in print media and on radio, television, and the Internet. This advertising does not specify or endorse any one type of California fresh grape or any single producer of these grapes. Instead, it promotes California fresh grapes in general as being flavorful, convenient, and healthful. The Commission's advertising has not promoted any products other than California fresh grapes. Past themes of Commission advertising have borne the taglines, "Good things come in bunches," "Share some California grapes," "Life is complicated. Grapes are simple," and "California grapes. The Natural Snack." These advertisements bear no express attribution to the State of California. Their recurring elements vary across media. Print advertisements include the Commission's website address and its logo, which reads "Grapes from California."
By all accounts, neither the Secretary nor her employees have directly participated in the development or approval of the Commission's advertising, or other promotional speech by the Commission. The Department of Food and Agriculture's "Policies for Marketing Programs" manual, the pertinent provisions of which are not captured in any promulgated regulation, states that the "CDFA reserves the right to exercise exceptional review of advertising and promotion messages wherever it deems such review is warranted," which "may include intervention in message development prior to placement of messages in a commercial medium or venue." This manual also relates the department's expectation that advertising and promotional messages be "[t]ruthful," "[i]n good taste," "[n]ot disparaging," and "[c]onsistent with statute."
The Ketchum Act incorporates a mechanism to challenge Commission actions, providing that "[a]ny person aggrieved by any action of the [C]ommission" may appeal that action to the Secretary. (§ 65650.5.)
As another form of oversight, the Act provides that the Commission must "keep accurate books, records and accounts of all of its dealings," which "shall be open to inspection and audit by the Department of Finance ... or other state officer charged with the audit of operation of departments of the State of California." (§ 65572, subd. (f).)
In 1999, plaintiffs Delano Farms Company (Delano Farms) and Gerawan Farming, Inc., filed separate but substantively similar complaints in Sacramento Superior Court, in which they alleged (among other claims) that the Ketchum Act's compelled-subsidy program violates their right to free speech under article I, section 2.
All plaintiffs assert that the Ketchum Act is unconstitutional insofar as it requires them to subsidize promotional speech that advances a viewpoint with which they disagree. Delano Farms and Blanc Vineyards, for example, each allege that "[t]he Commission's advertisements, promotions, and other expressive activities are largely designed to promote table grapes as though they were a generic commodity with generic quality," whereas these plaintiffs "promote and market their own brands and labels of table grapes to distinguish to [their] buyers [their] product[s], grade, quality and [their] service from that of [their] competitors in order to secure a higher price and repeat business." The other plaintiffs make analogous allegations. Plaintiffs also claim that a conflict exists between the Commission's messaging regarding fresh grapes and the message that plaintiffs support. Delano Farms and Blanc Vineyards assert that "[t]he generic advertising and promotion activities engaged in by the Commission [are] not at all helpful to [p]laintiffs and [are] indeed harmful to [p]laintiffs' message which is to buy [p]laintiffs' table grapes because they are better, a better consumer value, and that [p]laintiffs
After the expiration of lengthy stays pending the resolution of related litigation,
The superior court granted the Commission's motion for summary judgment, reasoning that the Commission represents a government agency for purposes of the government speech doctrine. Providing an additional basis for its holding, the court determined that the Act's compelled-subsidy program directly advances a substantial government interest and is not more extensive than necessary to serve that interest, and therefore withstands intermediate scrutiny.
When plaintiffs appealed, the Court of Appeal affirmed. The Court of Appeal determined, first, that article I, section 2 does not demand a more constrained construction of the government speech doctrine than the one adopted by the United States Supreme Court in Johanns v. Livestock Marketing Assn. (2005) 544 U.S. 550 [161 L.Ed.2d 896, 125 S.Ct. 2055] (Johanns) as a matter of federal law. The Court of Appeal then reviewed pertinent provisions of the Ketchum Act and concluded therefrom "that the Commission's promotional activities are effectively controlled by the state and therefore are government speech." This conclusion, the Court of Appeal reasoned, meant that the Commission's promotional activities are "immune to challenge under the California Constitution."
We granted review.
This is not the first time this court has considered the relationship between article I, section 2 and the compelled subsidy of speech. Through our previous encounters with this subject, we have concluded that a standard of intermediate scrutiny applies under article I, section 2 when the government compels the subsidization of private speech. (Gerawan II, supra, 33 Cal.4th at p. 6.) We also have indicated that greater deference would be accorded to state action that subsidizes only government speech. (Id., at pp. 26-28.) We have not yet determined for ourselves, however, whether a particular compelled-subsidy program in fact generates government speech under article I, section 2.
This case presents that issue, requiring us to decide whether speech developed and promulgated under the auspices of the Ketchum Act represents government speech. According to plaintiffs, the Commission — being overwhelmingly populated by market participants, each of whom is appointed by the Secretary from a pair of nominees proposed by growers themselves — is essentially a private entity incapable of generating government speech on its own. Plaintiffs also assert that the Ketchum Act does not otherwise ensure sufficient governmental accountability to the public regarding the messaging it contemplates for these communications to qualify as government speech. Here, plaintiffs emphasize the absence of active engagement by the CDFA in the review and approval of the Commission's promotional speech, and the fact that the Commission's advertisements are not explicitly attributed to the state. For its part, the Commission maintains that it is a state agency capable of generating government speech, even without oversight by the CDFA or other government actors. Furthermore, the Commission adds, the extent of governmental control over the messaging promulgated under the Ketchum Act also leads to a finding that these communications represent government speech.
In evaluating these positions, we begin with an overview of two principles this case calls upon us to mediate: the free speech guarantee enshrined in article I, section 2, and the government speech doctrine. We then review a series of decisions in which this and other courts have evaluated assertions that compelled-subsidy programs do not implicate constitutional free speech protections because they subsidize only government speech. Applying principles gleaned from the relevant precedent to the communications authorized by the Ketchum Act, we conclude that the promotional messaging under the Act constitutes government speech.
Article I, section 2 of the California Constitution contains our state's counterpart to the free speech provision found in the First Amendment to the United States Constitution. Article I, section 2, subdivision (a) declares, "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
The right to free speech and the government speech doctrine have intersected in prior cases in which the plaintiffs have alleged that state action has unconstitutionally compelled them to subsidize viewpoints with which they disagree. In some of these matters, the defendants have responded that the plaintiffs are paying only for government speech, rather than private speech, making the challenged action lawful. The discussion below reviews how these arguments have been presented and addressed in prior decisions by this court, as well as other courts.
The United States Supreme Court's first extended discussion of the relationship between compelled subsidies and government speech occurred in Keller v. State Bar of California (1990) 496 U.S. 1 [110 L.Ed.2d 1, 110 S.Ct. 2228] (Keller). The high court had laid the foundation for the Keller litigation sometime before, in Abood v. Detroit Board of Education (1977) 431 U.S. 209 [52 L.Ed.2d 261, 97 S.Ct. 1782] (Abood). There, the court reviewed a challenge brought under the First and Fourteenth Amendments to the United States Constitution to a requirement, authorized by statute, that public employees pay a union fee as a condition of employment. (Abood, at pp. 211-213.) The court in Abood concluded that, notwithstanding the plaintiffs' objections to the fee, the assessment was permissible to the extent that it subsidized activities that "`promote[d] the cause which justified bringing the group together'" (id., at p. 223, quoting Machinists v. Street (1961) 367 U.S. 740, 778 [6 L.Ed.2d 1141, 81 S.Ct. 1784] (conc. opn. of Douglas, J.)), i.e., collective bargaining, contract administration, and grievance-adjustment duties undertaken by the union (Abood, at p. 232).
The Supreme Court applied a similar analysis in Keller, supra, 496 U.S. 1. The compelled subsidy in Keller involved the California State Bar's exaction of compulsory dues from its members. The plaintiffs in Keller argued that the use of these assessments to fund political or ideological activities that they opposed violated their rights under the First and Fourteenth Amendments. (Keller, at p. 4.)
In proceedings below, this court had rejected the bulk of the plaintiffs' free speech claim, invalidating the fee only insofar as it subsidized electioneering by the State Bar outside of its statutory authority. (Keller v. State Bar (1989) 47 Cal.3d 1152, 1168, 1172 [255 Cal.Rptr. 542, 767 P.2d 1020].) In an early application of the government speech doctrine, we reasoned that the State Bar's status as a public corporation and other aspects of its composition and treatment under state law established that it was a government agency (id., at pp. 1161-1164),
The United States Supreme Court reversed, concluding that the State Bar should not be considered a government actor in this context. The unanimous decision in Keller, supra, 496 U.S. 1, acknowledged that this court "is the final authority on the `governmental' status of the State Bar of California for
Keller, supra, 496 U.S. 1, nevertheless disagreed with our application of this general principle to the State Bar. The high court explained that "the very specialized characteristics of the State Bar of California ... serve[] to distinguish it from the role of the typical government official or agency." (Id., at p. 12.) These characteristics included the "essentially advisory" nature of the State Bar's responsibilities, and the fact that attorneys, not the general public, provide the bulk of its funding. (Id., at p. 11.) The Keller court observed, "The State Bar of California was created, not to participate in the general government of the State, but to provide specialized professional advice to those with the ultimate responsibility of governing the legal profession. Its members and officers are such not because they are citizens or voters, but because they are lawyers." (Id., at p. 13.) The court therefore applied to the State Bar a distinction similar to the one recognized in Abood, supra, 431 U.S. 209: "the compelled association and integrated bar are justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity." (Keller, at pp. 13-14.)
The present litigation forms part of a continuum of cases that have built upon the holdings in Abood and Keller. The plaintiffs in these lawsuits have
Initially, the government speech doctrine did not play a large role in this body of litigation, which proceeded on the assumption that these programs funded private, not government, speech. The government speech doctrine was not invoked at all in Glickman v. Wileman Brothers & Elliott, Inc. (1997) 521 U.S. 457 [138 L.Ed.2d 585, 117 S.Ct. 2130] (Glickman), which rejected a First Amendment challenge to compelled assessments for advertising under marketing orders issued pursuant to the federal Agricultural Marketing Agreement Act of 1937. (7 U.S.C. § 601 et seq.; see Glickman, at p. 482, fn. 2 (dis. opn. of Souter, J.) [observing that the defendant had not argued "that the advertisements at issue represent so-called `government speech'"].) Even without the government speech doctrine being interposed, the Glickman court upheld the assessments because the charges represented "part of a broader collective enterprise in which [the plaintiffs'] freedom to act independently is already constrained by the regulatory scheme." (Id., at p. 469; see also id., at pp. 473-474, 476-477.) The court also noted that the marketing orders did not impose any restraint on producers' freedom to communicate any message to any audience, or compel producers to engage in any actual or symbolic speech. (Id., at pp. 469-471.) To the Glickman court, the plaintiffs' challenge implicated only "a species of economic regulation that should enjoy the same strong presumption of validity that we accord to other policy judgments made by Congress." (Id., at p. 477.)
The government speech doctrine was invoked, but only belatedly, in Gerawan I, supra, 24 Cal.4th 468. The plaintiff in Gerawan I challenged a marketing order issued by the CDFA pursuant to The California Marketing Act of 1937. (Gerawan I, at pp. 479-480.) This order established the California Plum Marketing Board, and required plum growers to finance generic advertising and other activities by the board through an assessment on their produce. (Ibid.) Comparably to the allegations here, the plaintiff in Gerawan I objected to the marketing order on the ground that it required the plaintiff "to fund commercial speech in the form of generic advertising" against its will, with the advertising reflecting "`viewpoints'" with which the plaintiff "`vehemently disagree[d].'" (Id., at p. 481.) This directive, the plaintiff argued, violated its rights under both the First Amendment to the United States Constitution and article I, section 2 of the state Constitution. (Gerawan I, at p. 480.)
Gerawan I, supra, 24 Cal.4th 468, followed the United States Supreme Court's decision in Glickman, supra, 521 U.S. 457, in rejecting the plaintiff's
At oral argument in Gerawan I, supra, 24 Cal.4th 468, amici curiae on behalf of the government sought to characterize the advertisements funded by the program as government speech. (Id., at p. 515, fn. 13.) We rejected this belated effort to inject the government speech doctrine into the case, observing that the plaintiff had not alleged facts within its complaint that, if true, would show that the advertising amounted to government speech, and that the CDFA had not premised its motion for judgment on the pleadings before the superior court on this ground. Amici curiae's arguments to this court were therefore "[t]oo little, too late." (Ibid.) Earlier, in discussing the Glickman case, Gerawan I had described government speech as "somewhat tautologically, speech by the government itself concerning public affairs" and surmised that this characterization "does not appear to cover generic advertising under a federal marketing order, which is not so much a mechanism of regulation of the producers and handlers of an agricultural commodity by a government agency, as a mechanism of self-regulation by the producers and handlers themselves." (Id., at p. 503, fn. 8.)
The government speech doctrine also was raised too late to factor into the analysis in United States v. United Foods, Inc. (2001) 533 U.S. 405 [150 L.Ed.2d 438, 121 S.Ct. 2334] (United Foods), another case that involved the relationship between compelled subsidies for generic advertising and the right to free speech under the First Amendment. In United Foods, the court addressed a challenge to mandatory assessments imposed upon mushroom growers pursuant to the Mushroom Promotion, Research, and Consumer Information Act of 1990. (7 U.S.C. § 6101 et seq.; hereafter Mushroom Act.) The statute authorized the use of these assessments for "projects
In finding that the imposition of these assessments violated the plaintiffs' First Amendment rights, the court in United Foods, supra, 533 U.S. 405, distinguished Glickman on the ground that in the earlier case, "[t]he opinion and the analysis of the Court proceeded upon the premise that the producers were bound together and required by the statute to market their products according to cooperative rules. To that extent, their mandated participation in an advertising program with a particular message was the logical concomitant of a valid scheme of economic regulation." (United Foods, at p. 412.) The mushroom program, in contrast, did not mandate similar collectivism, and "almost all of the funds collected under the [statute's] mandatory assessments are for one purpose: generic advertising." (Ibid.) With "no broader regulatory system in place" concerning subjects other than speech, the court declined to uphold "compelled subsidies for speech in the context of a program where the principal object is speech itself." (Id., at p. 415.)
In unsuccessfully defending the assessment program in United Foods, supra, 533 U.S. 405, the government tardily asserted that the advertising subsidized by the assessments constituted "government speech" that was insulated from the scrutiny that otherwise would adhere under the First Amendment. (United Foods, at p. 416.) Because the government had not presented this argument in proceedings below, the Supreme Court declined to address it. (Ibid.) The court noted that the government's failure to raise the argument below deprived the plaintiffs of an opportunity "to address significant matters that might have been difficult points for the Government," such
The brief discussion of government speech in United Foods, supra, 533 U.S. 405, informed the analysis in Gerawan II, supra, 33 Cal.4th 1. In Gerawan II, we clarified that notwithstanding the constrained view of government speech suggested in Gerawan I, supra, 24 Cal.4th at page 503, footnote 8, generic advertising produced under the auspices of an agricultural marketing order could represent government speech, and on that basis not be subject to heightened scrutiny under article I, section 2.
Among the issues that Gerawan I, supra, 24 Cal.4th 468, had reserved for further proceedings was the standard or test that would be used to ascertain the lawfulness of compelled funding schemes such as that contained within the California Plum Marketing Program. We addressed this subject in Gerawan II, supra, 33 Cal.4th 1, which came to this court after another grant of judgment on the pleadings. We determined that under article I, section 2, the constitutionality of the California Plum Marketing Program's financing scheme for advertising would "be tested by the intermediate scrutiny standard articulated by the United States Supreme Court in Central Hudson Gas & Elec. v. Public Serv. Comm'n (1980) 447 U.S. 557 [65 L.Ed.2d 341, 100 S.Ct. 2343] (Central Hudson)." (Gerawan II, 33 Cal.4th at p. 6.)
The decision in Gerawan II, supra, 33 Cal.4th 1, also acknowledged — the argument now having been properly placed before the court — the government's contention that the marketing program generated government speech. (Id., at p. 26.) Gerawan II determined that the character of the speech could not be resolved on the pleadings, but the government would have the opportunity on remand "to prove that the speech at issue was in fact government speech." (Id., at p. 27.) It continued, "The kind of showing the government would be required to make has been suggested by the United States Supreme Court," then referenced and quoted the brief discussion of
Shortly after our decision in Gerawan II, supra, 33 Cal.4th 1, the United States Supreme Court decided Johanns, supra, 544 U.S. 550, another First Amendment challenge to a federal program that financed generic advertising for an agricultural product or products through mandatory assessments levied on producers of the commodity.
Johanns, supra, 544 U.S. 550, involved the Beef Promotion and Research Act of 1985 (Beef Act; Pub.L. No. 99-198, tit. XVI, subtitle A, § 1601 (Dec. 23, 1985) 99 Stat. 1597), which provides for the promotion of "beef and beef products." (7 U.S.C. § 2901(b); see Johanns, at p. 553.) This statute directs the federal Secretary of Agriculture to advance the statutory goal of promoting the marketing and consumption of beef products by issuing a beef promotion and research order. (7 U.S.C. § 2903.) Through this order, the Secretary of Agriculture appoints the members of a promotional board (hereafter the Beef Board), comprised of beef producers and importers who have been nominated by trade associations and importers. (Id., § 2904(1).) The Beef Board elects 10 of its members to a beef promotion operating committee (hereafter Operating Committee), who serve together with 10 representatives named by a federation of state beef councils. (Id., § 2904(4)(A).) The Operating Committee designs promotional campaigns relating to beef, funded by assessments imposed on cattle sales and on the
Johanns, supra, 544 U.S. 550, did acknowledge that "[i]f [the] viewer would identify the speech as [that of plaintiffs' members], however, the analysis would be different." (Id., at p. 564, fn. 7.) In explaining this caveat, Johanns speculated that "[o]n some set of facts," an adequately supported allegation that the advertisements were in fact attributed to beef producers might provide grounds for an as-applied challenge to the beef promotion program, framed under a compelled-speech theory. (Id., at p. 565; see also Wooley v. Maynard (1977) 430 U.S. 705 [51 L.Ed.2d 752, 97 S.Ct. 1428] (Wooley); Barnette, supra, 319 U.S. 624.) Yet the court did not perceive any basis in the record for concluding that the plaintiffs' members in fact would be associated with advertisements bearing the text, "`America's Beef Producers.'" (Johanns, at p. 566.) This tagline alone, the court concluded, was not "sufficiently specific to convince a reasonable factfinder that any particular beef producer, or all beef producers, would be tarred with the content of each trademarked ad." (Ibid.)
Since Johanns was decided, its analysis has been applied in several cases to rebuff free speech challenges to compelled-subsidy programs. (E.g., Paramount Land Co. LP v. California Pistachio Com. (9th Cir. 2007) 491 F.3d 1003, 1009-1012 (Paramount Land); Avocados Plus Inc. v. Johanns (D.D.C. 2006) 421 F.Supp.2d 45, 50-54; Cricket Hosiery, Inc. v. U.S. (Ct. Internat. Trade 2006) 429 F.Supp.2d 1338, 1343-1348.) Two particularly pertinent decisions are discussed below.
In parallel federal litigation over the very assessments that are at issue here, the United States Court of Appeals for the Ninth Circuit determined that the Commission's promotional messaging represented government speech and that the Ketchum Act's compelled-subsidy program therefore did not violate the First and Fourteenth Amendments. (Delano Farms Co. v. California Table Grape Com., supra, 586 F.3d at pp. 1228-1230.) The court of appeals' analysis first applied the framework set forth in Lebron v. National Railroad Passenger Corporation (1995) 513 U.S. 374 [130 L.Ed.2d 902, 115 S.Ct. 961] (Lebron) for ascertaining whether an entity is a government actor for First Amendment purposes, and determined therefrom that the Commission was a government entity that could generate government speech on its own.
The foregoing authorities establish certain basic principles relevant to the analysis here.
Third, when addressing a challenge to a compelled-subsidy program, if such issues are appropriately raised and developed by the plaintiff the court's analysis also must consider whether the state's actions impact free speech
Recognition of the promotional messaging produced under the Ketchum Act as government speech follows, first, from the Act's findings and charge to the Commission. As observed ante, in enacting this statute the Legislature found that "[i]t is ... necessary and expedient in the public interest to protect and enhance the reputation of California fresh grapes for human consumption in intrastate, interstate and foreign markets" (§ 65500, subd. (e)), and "[t]he promotion of the sale of fresh grapes for human consumption by means of advertising ... is ... in the interests of the welfare, public economy and health of the people of this state" (id., subd. (e)). The Act thus expressly endorses the promulgation of advertising and similar speech that promotes
Of course, public corporations are not invariably regarded as units of the government for purposes of the government speech doctrine. The high court's analysis and decision in Keller, supra, 496 U.S. 1, discussed ante, instruct as much. We need not and do not decide here whether the Commission is, on its own, a state actor capable of producing government speech. At a minimum, however, the relevant circumstances here distinguish this case from Keller in that they underscore greater overall state responsibility for the message being communicated by the public corporation at issue. In Keller, the high court
Furthermore, the Commission operates subject to several statutes generally applicable to state agencies (see Gov. Code, § 11000, subd. (a)) that permit ongoing review of its operations and help ensure accountability for its actions. These laws include the California Public Records Act (Gov. Code, § 6250 et seq.; see id., § 6252, subd. (f)(1)),
The Ketchum Act also incorporates an avenue for the Secretary to correct specific departures from the statutory message. Through the Act's appeal mechanism, the Secretary may reverse an action by the Commission if it is the subject of an appeal and she finds that it was "not substantially sustained by the record, was an abuse of discretion, or illegal." (§ 65650.5.) Were the Commission to endorse a message not authorized under the statute, or regarded as an abuse of discretion, an aggrieved party could challenge this action through an appeal. Although this case does not require us to identify the precise parameters of the Secretary's authority to reverse Commission actions, it stands to reason that speech that patently would not promote the sale of California table grapes could become the subject of a viable challenge. And regardless of whether such an appeal leads to reversal, the Secretary could be held politically accountable for the outcome. Although this review mechanism is somewhat different from the oversight responsibilities borne by the CDFA with other compelled-subsidy programs (see fn. 3, ante), it
Other provisions within the Ketchum Act also underscore the state's responsibility for and control over messaging promulgated under the statute. Among them, the Act gives the Secretary of the Department of Food and Agriculture the duty to appoint commissioners from the set of nominees for each position on the Commission. (§§ 65555, 65563, 65575.1.) Having this power, the Secretary is in a weakened position to disclaim responsibility for promotional messaging that an appointee later may approve. Furthermore, as the officer who appoints the commissioners, the Secretary also has the power to remove them from office. (See People v. Hill (1857) 7 Cal. 97, 102.) By statute, commissioners serve a term of years (Food & Agr. Code, § 65555), which may circumscribe the Secretary's authority to remove them from office (see Gov. Code, § 1301 ["Every office, the term of which is not fixed by law, is held at the pleasure of the appointing power"]; Brown v. Superior Court (1975) 15 Cal.3d 52, 55 [123 Cal.Rptr. 377, 538 P.2d 1137]; Boyd v. Pendegast (1922) 57 Cal.App. 504, 507 [207 P. 713] ["Appointments to hold during the pleasure of the appointing power may be terminated at any time and without notice; appointments to continue `during good behavior,' or for a fixed term of years, cannot be terminated except for cause"]). Consistent with such a limitation, the parties have stipulated only that the Secretary may remove a commissioner "if necessary." Nevertheless, even a qualified power of removal provides another means of oversight by the Secretary, who is herself appointed by and holds office at the pleasure of the Governor. (§ 102.)
Plaintiffs identify perceived deficiencies in the statutory scheme and its implementation that, in their view, prevent us from characterizing the subsidized communications as government speech. First, plaintiffs read the discussion of government speech in Gerawan II, supra, 33 Cal.4th at pages 27-28, as committing this court to the position that the Secretary or her staff must review Commission-approved advertisements in order for these materials to constitute government speech. Such review, plaintiffs stress, did not occur here.
Plaintiffs also ask this court to read into article I, section 2 a requirement that, to qualify as government speech, subsidized communications must on their face be specifically and explicitly attributed to the government. Plaintiffs claim that such disclosures, as urged by Justice Souter in his dissent in Johanns, supra, 544 U.S. 550, are necessary to ensure that reasonable observers will appreciate that the communications come from the state and can hold the government accountable for this messaging. Here, plaintiffs assert, the failure of the Commission's advertising to affirmatively disclose the state as the speaker forecloses the prospect that these communications represent government speech. But the court in Johanns rejected a categorical attribution requirement as unnecessary (id., at p. 564, fn. 7), and plaintiffs provide no persuasive reason to adopt a different rule under article I, section 2. We agree that, when present, the fact that advertising or other communications are explicitly credited to the government may be relevant to a finding of government speech. Yet, as detailed ante, the totality of the circumstances pertinent to the generation of speech under the Ketchum Act incorporates sufficient mechanisms to ensure governmental accountability for this messaging, even without such ascription. (See Gallo Cattle, supra, 159 Cal.App.4th at p. 963 [questioning the marginal utility of an express disclosure requirement].)
In short, the generation of speech under the Ketchum Act is attended by sufficient indicia of government responsibility and control for these communications to properly be regarded as government speech.
Having determined that promotional messaging under the Ketchum Act represents government speech, it remains to consider the consequences of this designation.
We conclude that a similar result holds under article I, section 2. By itself, a state directive to pay taxes or fees to fund only government speech does not implicate, let alone infringe upon, protected free speech rights. As the court in Johanns, supra, 544 U.S. 550, observed, "`Compelled support of government' — even those programs of government one does not approve — is of course perfectly constitutional, as every taxpayer must attest" (id., at p. 559), meaning that subsidized government speech is "not susceptible to First Amendment challenge" on the bare ground that the subsidy requirement, by itself, violates the plaintiff's right to free speech (id., at p. 560).
Of course, a determination that state action generates only government speech does not, by itself, necessarily address all of its possible constitutional implications. If the Ketchum Act's compelled-subsidy provisions did more than merely direct plaintiffs to fund government speech, additional analysis might be required under article I, section 2. (Accord, Johanns, supra, 544 U.S. at p. 564, fn. 7.) But plaintiffs have not shown that the statute, as implemented, has any effect on their constitutional right to exercise free speech.
For example, although at oral argument counsel for plaintiffs asserted that the Commission's promotional speech effectively prevents his clients from communicating their preferred message, the record below does not reveal a triable issue of fact on this point. (See Gallo Cattle, supra, 159 Cal.App.4th at p. 967; Miller, supra, 151 Cal.App.3d at p. 702.) Similarly, the record yields no basis for a triable claim that the Ketchum Act forges such a close connection between plaintiffs and the Commission's promotional speech that it conveys, inaccurately, their endorsement of the views expressed in these communications. (Cf. Johanns, supra, 544 U.S. at p. 565, fn. 8 [describing the character of a compelled-speech claim]; Wooley, supra, 430 U.S. 705; Barnette, supra, 319 U.S. 624.) On the contrary, the generic slogan "Grapes from California" does not convey a specific connection to plaintiffs, who are merely five of the approximately 475 producers of fresh grapes in this state.
We affirm the judgment of the Court of Appeal.
Chin, J., Corrigan, J., Liu, J., Cuéllar, J., Ramirez, J.,
The governance of a marketing order is somewhat different from that associated with actions undertaken by a commission. Each marketing order must provide for the establishment of an advisory board to assist the Secretary in the administration of the order. (§ 58841.) Members of an advisory board are appointed by, and serve at the pleasure of, the Secretary. (Ibid.) Except for a member who may be appointed to represent "the department or the public generally" (§ 58843), members of an advisory board must be involved in the production or handling of the subject commodity (§ 58842). An advisory board's duties are "administrative only." (§ 58846.) Among its responsibilities, an advisory board may, "[s]ubject to the approval of the [Secretary], administer the marketing order," and "[r]ecommend to the [Secretary] administrative rules and regulations which relate to the marketing order." (Id., subds. (a), (b).)
Commissions were developed as an alternative to marketing orders. In addition to the California Table Grape Commission, other commissions that have been authorized by statute include the California Iceberg Lettuce Commission (§ 66501 et seq.); the California Rice Commission (§ 71000 et seq.); the California Wine Commission (§ 74501 et seq.); the California Egg Commission (§ 75001 et seq.); the California Sheep Commission (§ 76201 et seq.); the California Forest Products Commission (§ 77501 et seq.); the California Sea Urchin Commission (§ 79000 et seq.); the California Nursery Producers Commission (§ 79401 et seq.); the California Apiary Research Commission (§ 79601 et seq.); and the Olive Oil Commission of California (§ 79800 et seq.), among many others.
The terms of the statutes that have created these and other commissions and vested them with authority vary in some respects from the provisions of the Ketchum Act. One difference is that other statutes commonly provide for a different form of engagement by the CDFA with the relevant commission's activities, from that contemplated under the Ketchum Act. (E.g., § 66561.3 [authorizing the Secretary to require the California Iceberg Lettuce Commission "to correct or cease any activity or function which is determined by the [Secretary] not to be in the public interest or is in violation of" that commission's authorizing statute].)
The statute authorized the Secretary of Agriculture to "propose the issuance of an order," or "an association of mushroom producers or any other person that will be affected by this chapter" to "request the issuance of" an order (7 U.S.C. § 6103(b)(1)), that would, among its terms, provide for a Mushroom Council, constituted of mushroom producers and importers (id., § 6104(b)(1)(A)-(B)). This council would "propose, receive, evaluate, approve and submit to the Secretary for approval ... budgets, plans, and projects of mushroom promotion, research, consumer information, and industry information...." (Id., § 6104(c)(4).) Under the Mushroom Act, "[n]o plan or project of promotion, research, consumer information, or industry information, or budget, shall be implemented prior to its approval by the Secretary." (Id., § 6104(d)(3).)
These circumstances, Justice Souter believed, meant that for the Beef Act's promotional messaging to qualify as government speech, the challenged advertisements had to disclose that the government was the speaker. Such a requirement was needed, he wrote, "to ensure that the political process can practically respond to limit the compulsion" associated with the funding scheme. (Johanns, supra, 544 U.S. at p. 576 (dis. opn. of Souter, J.).) It meant "nothing that Government officials control the message if that fact is never required to be made apparent to those who get the message, let alone if it is affirmatively concealed from them.... Unless the putative government speech appears to be coming from the government, its governmental origin cannot possibly justify the burden on the First Amendment interests of the dissenters targeted to pay for it." (Id., at pp. 578-579 (dis. opn. of Souter, J.), fns. omitted.)
