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First Amendment Library:
Barbara B. McDowell


In 1996, United Foods, Inc., a mushroom producer in Tennessee, refused to pay assessments under a generic ad program promulgated pursuant to the Mushroom Promotion, Research, and Consumer Information Act of 1990. The United States then filed an action against United Food seeking to enforce the terms of a mushroom order. United Foods filed an action, alleging that the act and the generic ad program violated its First Amendment rights. The two actions were stayed until the U.S. Supreme Court ruled on the constitutionality of a generic ad program for California fruits in Glickman v. Wileman Bros. & Elliott, 521 U.S. 457 (1997). After the Supreme Court ruled the California program constitutional, an administrative law judge ruled in favor of the government. United Foods then sued in a federal district court. After United Foods' First Amendment suit was consolidated with the government's enforcement action, a federal district court ruled in 1998 that the Supreme Court's 1997 decision was "clearly dispositive." On appeal, a three-judge panel of the 6th U.S. Circuit Court of Appeals reversed, finding that the mushroom industry was far less regulated than the California fruit industry. The panel wrote: "The Court's holding in Wileman, we believe, is that nonideological, compelled, commercial speech is justified in the context of the extensive regulation of an industry but not otherwise. The government appealed to the U.S. Supreme Court, which granted certiorari on Nov. 27, 2000.