California Supreme Court Dismisses Grape Growers’ First Amendment Challenge
The California Supreme Court has affirmed an appeals court ruling holding that an assessment collected to subsidize a grapes promotional campaign is constitutional and not compelled speech. Delano Farms Co. v. Cal. Table Grape Comm’n, No. S226538 (Cal., entered May 24, 2018). The growers argued that the program required them to “sponsor a viewpoint (promoting all California table grapes equally) with which they disagree” because they “believe that the table grapes they grow and ship are exceptional.” The California Table Grape Commission asserted that the program was government speech rather than private speech, resulting in no free speech violation.
The court concluded that the compelled grape subsidy constituted government speech, focusing on the “governmental direction and control” of the messaging. “In sum, the Commission was created by statute and given a specific mission to, among other things, promote in a generic fashion a particular agricultural product,” the court held. “In order for the promotional material of a body like the Commission to be considered government speech under an ‘effectively controlled’ theory , the government must have the authority to exercise continued control over the message sufficient to ensure that the message stays within the bounds of the relevant statutory mandate. The foregoing review of the totality of the relevant circumstances reveals such authority, and the resulting governmental accountability for the Commission’s messaging. Moreover, nothing in the record suggests that the Commission has departed from its mission.” Because the commission retained control of messaging, it constituted government speech, the court ruled, and the grape growers did not have the right to exclude themselves from the subsidy based on their disagreement with the message. “Although individuals have a right to speak freely, they do not have the right not to fund government speech. To recognize such a right would make effective governance impossible,” the court held.