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Delano Farms Co. v. Cal. Table Grape Commission

Filed 5/24/18 IN THE SUPREME COURT OF CALIFORNIA ) ) DELANO FARMS COMPANY et al., ) S226538 Plaintiffs and Appellants, ) ) v. ) Ct.App. 5 F067956 ) CALIFORNIA TABLE GRAPE ) County of Fresno COMMISSION, ) Super. Ct. Nos. 636636-3, 642546, Defendant and Respondent. ) 01CECG01127, 01CECG02292, ) 01CECG02289, 11CECG00178 ___________________________________ ) Pursuant to the Ketchum Act (Food & Agr. Code, § 65500 et seq.; sometimes hereafter referred to as the Act), the activities of the California Table Grape Commission (sometimes hereafter referred to as the Commission) are funded by assessments on shipments of California table grapes. Plaintiffs and appellants are five growers and shippers of these grapes. They contend that the collection of assessments under the Act to subsidize promotional speech on behalf of California table grapes as a generic category violates their right to free speech under article I, section 2, subdivision (a) of the state Constitution (sometimes hereafter article I, section 2). Specifically, plaintiffs believe that the table grapes they grow and ship are exceptional, and cast the assessment scheme as infirm insofar as it requires them to sponsor a viewpoint (promoting all California table grapes equally) with which they disagree. 1 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 (Gerawan I)) and is subject to intermediate scrutiny (Gerawan Farming, Inc. v. Kawamura (2004) 33 Cal.4th 1, 6 (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. ___ [137 S.Ct. 1744, 1758] (Matal).) Therefore, …
Original document
Source: California Supreme Court