The Washington Legal Foundation (WLF) yesterday filed a brief with the California Supreme Court, urging it to strike down a California law compelling farmers to pay for advertisements generically promoting plums.

In a brief filed with the California Supreme Court, WLF argued that forcing plum growers to pay for advertising with which they disagree violates the California Constitution.

“Businesses have the constitutional right under California law to choose what speech they will pay for,” said WLF Senior Counsel for Litigation Affairs R. Shawn Gunnarson after filing WLF’s brief. “That right must not be sacrificed, merely because the government wants to promote a certain industry as a whole.”

This case arose when Gerawan Farming, Inc., a family-owned business that grows plums, challenged a mandatory program requiring all plum growers and handlers to pay for advertisements generically promoting the sale of California plums. Gerawan objected to paying for such advertisements because it had invested heavily in developing a distinctive, high-quality plum, while the generic advertisements promoted the message that all California plums are high-quality. Gerawan was thus paying for advertisements that would benefit its competitors.

Following the U.S. Supreme Court’s decision in the related case of Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997), the California Superior Court ruled against Gerawan. The California Court of Appeals affirmed that decision, upholding the mandatory advertising program against Gerawan’s argument that the program violated its free speech rights under the California Constitution. Gerawan subsequently appealed to the California Supreme Court, where the case is now pending.

In its brief WLF raised three main points. First, WLF argued that the California Constitution protects the free speech rights of Californians, independently of any protections afforded by the U.S. Constitution. Second, WLF argued that the California Supreme Court should not follow the reasoning of the majority in Glickman, since that reasoning was an aberration in a line of decisions that had otherwise consistently favored commercial speech under the federal Constitution. Third, WLF urged the California Supreme Court to subject the mandatory advertising program to strict scrutiny, the most speech-friendly standard of judicial review.

The Washington Legal Foundation is a public interest law and policy center with supporters in all 50 states. It devotes a significant portion of its resources to defending and promoting the principles of free enterprise and individual rights. WLF filed its brief with the pro bono assistance of Steven G. Brody and Christine P. Jackson of Cadwalader, Wickersham & Taft.

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For further information, contact WLF Senior Counsel for Litigation Affairs, R. Shawn Gunnarson, at (202) 588-0302.