Mushroom Producers Should Have the Right to Remain Silent

July 2001

Mushroom Producers Should Have the Right to Remain Silent

By Melinda Ammann

You’ve seen them on TV and in magazines:  “Got Milk?” the white-mustached celebrities in the ads want to know.  The controversy over such advertising for everyday foods goes beyond whether milk does, in fact, do a body good.  A case dealing with the right of mushroom growers to speak freely about their produce—or to refrain from speaking—made its way to the U.S. Supreme Court, and IJ was there to defend First Amendment rights in a case with potential for widespread impact.

IJ filed an amicus curiae brief siding with United Foods, producer of “Pictsweet” mushrooms.  A federal program requires the company to pay mandatory assessments to the Mushroom Council, which spends the money on generic mushroom advertising.  United Foods maintained that these required fees violate the First Amendment right to freedom of expression, which includes the right to remain silent.  United Foods even runs its own marketing campaign for “Pictsweet” mushrooms, which it claims are a pick above the rest.  The company contended that it should not be required to fund speech that is contradictory to its chosen message to promote their own mushrooms.

In 1997, the Justices upheld the constitutionality of a similar program by a 5-4 vote.  In Glickman v. Wileman, California tree fruit growers challenged mandatory contributions to a generic advertising campaign.  The closely divided court held that this fee constituted economic regulation rather than speech regulation.  IJ’s brief supporting United Foods explained why the Glickman decision was inconsistent with the Court’s prior First Amendment jurisprudence and should be overturned.

In June, the Supreme Court ruled in favor of United Foods and free speech, noting that the First Amendment prohibits government from compelling speech to which the speaker objects.  The right to speak as one wishes or to be silent is as essential to mushroom growers as any other member of a free society.  This victory for the mushroom growers is a victory for us all. 

Melinda Ammann is the Institute for Justice’s communications coordinator.