Subsidized Free Speech

A group of California grape growers/shippers brought an action in the County of Fresno against the California Table Grape Commission, contending that the Commission’s collection of assessments under the Ketchum Act (Food & Agr. Code § 65500 et seq.) to subsidize promotional speech on behalf of all California table grapes violates the growers’ right to free speech. The plaintiffs contend that the grapes they grow are superior to other grapes in California, and the assessment scheme violates their rights by requiring them to sponsor a viewpoint (promoting all California table grapes equally) with which they disagree.

On May 24, 2018, the Supreme Court of California held that the California Table Grape Commission’s advertisements and related messaging represent government speech rather than private speech, are thus accorded substantial deference, and therefore do not violate the growers’ rights to free speech.
The court’s decision was based primarily on its finding that the California Table Grape Commission’s activities were government speech. 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.

In finding that the questioned activity was, in fact, government speech, the court reiterates the U.S. Supreme Court’s decision in Keller v. State Bar of California (1990) 496 U.S. 1, that “although individuals have a right to speak freely, they do not have the right not to fund government speech,” (emphasis in original). The court recites a long history of the determination of government speech and ultimately states “speech generated through a compelled-subsidy program in which market participants are involved in the development of the messaging may represent government speech.” They reason that the provisions provided in the Ketchum Act lead to the conclusion that Commission’s promotional messaging is subject to sufficient governmental direction and control to qualify as government speech.

Since the government speech doctrine is a powerful one when used improperly, the Court cautions that “courts must take care in distinguishing government speech from private speech, and apply the government speech doctrine in a manner mindful of its potential impact on protected free speech interests.”