United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 2, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30523
PELTS & SKINS, LLC,
Plaintiff-Appellee,
versus
WILLIAM DWIGHT LANDRENEAU, Secretary for the Department of
Wildlife and Fisheries,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana, Baton Rouge
--------------------
Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.
BENAVIDES, Circuit Judge:
Plaintiff-Appellee Pelts & Skins farms alligators in
Louisiana. Defendant-Appellant William Dwight Landreneau is
Secretary of the Louisiana Department of Wildlife and Fisheries
(“DWF”), the agency responsible for overseeing conservation of
alligators.1 Louisiana requires alligator hunters and farmers to
pay various fees, and DWF uses a portion of those fees to support
generic marketing of alligator products. Pelts & Skins alleges
1
Mr. Landreneau replaced James A. Jenkins as secretary after the district
court ruled. To avoid confusion, we refer to Mr. Landreneau as the Secretary.
that this practice constitutes a compelled subsidy for private
speech that violates the First Amendment. The district court
agreed with Pelts & Skins and permanently enjoined use of the fees
to support generic marketing of alligator products.
We conclude that Pelts & Skins lacks standing to challenge the
use of certain alligator-related fees. With regard to the fees
Pelts & Skins does have standing to challenge, we agree with the
district court that the use of those fees for generic marketing
violates the First Amendment. We therefore affirm in part, vacate
in part, and remand in part.
I.
The American alligator was once endangered, but Louisiana law
now allows the hunting and farming of alligators for their meat and
skins. DWF regulates the hunting, farming, processing, and
shipment of alligators and alligator parts. See La. Rev. Stat.
Ann. § 36:602(B) (West Supp. 2004). DWF does not regulate the
prices or marketing of alligators, but it does administer two
funds, the proceeds of which support generic marketing of alligator
products: the Louisiana Fur and Alligator Public Education and
Marketing Fund (the “Marketing Fund”) and the Louisiana Alligator
Resource Fund (the “Resource Fund”). The generic marketing
supported by these two funds is the focus of this case.2
2
This type of scheme--compelled subsidies for generic marketing--has
produced many familiar campaigns, including “Got Milk?”; “Pork: The Other White
Meat”; “The Incredible, Edible Egg”; “Ah . . . the Power of Cheese”; and “The
Touch . . . the Feel of Cotton . . .the Fabric of Our Lives.” See Cochran v.
2
The Marketing Fund derives its revenues from license fees,
i.e., the fees associated with the hunting licenses that fur
trappers and alligator hunters must carry. See id. §§ 56:251(A),
56:266(D). Twenty dollars of every twenty-five-dollar license fee
are earmarked for the Marketing Fund.3 Id. The Louisiana
Legislature created the Marketing Fund to market alligator and fur
products, to educate the public about the harvesting of those
products, and to recommend strategies to the fur and alligator
industry. Id. § 56:266(B).
The Resource Fund derives its revenues from a variety of fees
imposed on alligator hunters, farmers, and processors. Id.
§ 56:279. The most notable of these fees is the tag fee, a charge
for the tag that must be attached to every harvested alligator
skin. Id. § 56:253(C).4 The Legislature created the Resource Fund
“to help defray the cost of alligator programs” administered by
DWF. Id. § 56:279(A). The Resource Fund supports alligator-
related research and, when surplus funds are available, helps to
Veneman, 359 F.3d 263, 266 (3d Cir. 2004); Mich. Pork Producers Ass’n v. Veneman,
348 F.3d 157, 162 & n.2 (6th Cir. 2003), petition for cert. filed sub. nom.
Veneman v. Campaign for Family Farms, 72 U.S.L.W. 3539 (U.S. Jan. 20, 2004) (No.
03-1043).
3
The state treasurer may apply collected fees to the Marketing Fund and the
Resource Fund only after she ensures that state revenues can cover due and
payable state debts. La. Rev. Stat. Ann. §§ 266(D)(1), 279(C)(1) (West Supp.
2004). The record does not indicate that the treasurer has ever applied
alligator-related fees to state debts.
4
Section 56:253(C)(2)(a) allows DWF to charge up to four dollars per tag,
and during some years, Pelts & Skins paid four dollars per tag. But starting in
September 2002, DWF temporarily suspended the collection of two dollars of the
regular four-dollar fee. La. Admin. Code tit. 76, § 701(A)(4)(a)(xi) (2003).
3
fund alligator-related law enforcement and marketing programs. Id.
§ 56:279(B).
DWF monitors both funds, and the Secretary must approve all
expenditures for generic marketing, but another state-created
entity, the Louisiana Fur and Alligator Advisory Council (the
“Council”), is directly responsible for the content of the generic
marketing and must review and approve all expenditures from the
funds. Id. §§ 266(C), 279(D)(3). The Council comprises the
Secretary (or his designate), who serves ex officio, and eleven
appointed members. Id. § 56:266(C). The speaker of the House and
the president of the Senate each appoint one member. Id. The
Secretary appoints nine members, and those nine members must
represent “a cross-section of trappers, alligator hunters, coastal
landowners, and alligator farmers.” Id. Two of those nine members
must represent a private organization, the Louisiana Alligator
Farmers and Ranchers Association. Id. The Secretary may appoint
the remaining seven members based on nominations from the Louisiana
Trappers and Alligator Hunters Association. Id.
Pelts & Skins, as Louisiana’s (and the world’s) largest
alligator farming operation, pays fees that account for roughly 25%
of the alligator-related revenues received by DWF. Pelts & Skins
does not object to the collection of these revenues but does object
to the expenditure of these funds on generic marketing. According
to Pelts & Skins, its business depends on convincing consumers that
4
it produces a unique product that is superior in quality to other
alligator products. Generic alligator marketing undercuts this
message because generic marketing does not differentiate between
particular types, qualities, or brands of alligator products, but
rather promotes the notion that alligator products in general are
desirable, reliably available, and lawfully produced.5 Pelts &
Skins also hints broadly that the Council’s generic marketing
campaign, which consists mainly of sending representatives to
fashion shows and setting up educational displays, is a boondoggle.
However, Pelts & Skins is quick to clarify that its objection to
generic marketing stems from the message of that marketing, not its
efficacy.
Based on its objection to the generic marketing’s content,
Pelts & Skins sought to enjoin DWF from expending revenues from the
Marketing Fund and the Resource Fund for generic alligator
marketing. According to Pelts & Skins, Louisiana violated the
First Amendment by imposing mandatory fees on Pelts & Skins, then
using those fees to subsidize a message with which Pelts & Skins
disagrees. In response, the Secretary argued (1) that the Tax
Injunction Act of 1937 barred federal jurisdiction; (2) that the
5
Pelts & Skins’ objection to the message embodied in generic marketing may
seem minor, but the Supreme Court has explained that the perceived importance of
a plaintiff’s objection is immaterial. See United States v. United Foods, 533
U.S. 405, 411 (2001) (“First Amendment values are at serious risk if the
government can compel a particular citizen, or a discrete group of citizens, to
pay special subsidies for speech on the side that it favors; and there is no
apparent principle which distinguishes out of hand minor debates about whether
a branded mushroom is better than just any mushroom.”).
5
generic marketing at issue was government speech not subject to
First Amendment scrutiny; and (3) that, in the alternative, the
generic marketing was merely ancillary to a broader cooperative
regime and therefore consistent with the First Amendment.
The parties agreed to submit the case on the record without
live testimony. The district court determined (1) that the Tax
Injunction Act did not bar federal jurisdiction; (2) that the
generic marketing was not government speech; and (3) that the use
of mandatory fees to fund generic marketing was not ancillary to a
broader cooperative regime. Pelts & Skins, L.L.C. v. Jenkins, 259
F. Supp. 2d 482 (M.D. La. 2003). The court permanently enjoined
the Secretary from “approving, authorizing or expending any revenue
from the Louisiana Fur and Alligator Public Education and Marketing
Fund or from the Louisiana Alligator Resource Fund for the purpose
of generic alligator marketing.” Id. at 494. The Secretary
appealed.6
II.
We first address the Secretary’s contention that Pelts & Skins
lacks standing to challenge expenditures from the Marketing Fund.
The Secretary failed to raise this argument in the district court,
but a party may raise standing at any time, even on appeal.
Johnson v. City of Dallas, 61 F.3d 442, 443-44 (5th Cir. 1995).
6
The Secretary has appealed neither the district court’s findings of fact
nor its ultimate holding with regard to the Tax Injunction Act.
6
The first requirement of standing is that a party must
demonstrate an injury in fact. See McConnell v. FEC, 124 S. Ct.
619, 707 (2003). Pelts & Skins alleges that it has been injured in
fact because it must pay fees that directly support a message with
which it disagrees. The Secretary claims that Pelts & Skins has
failed to prove this injury with regard to the Marketing Fund. The
Secretary concedes that Pelts & Skins has paid the tag fees that
support the Resource Fund, and the record amply supports that
concession.7 However, according to the Secretary, Pelts & Skins
has not shown that it has ever paid the license fees that support
the Marketing Fund.
We agree with the Secretary that Pelts & Skins failed to prove
that Louisiana’s use of the marketing fund has caused an injury in
fact. Because this case proceeded to final judgment,8 “the factual
allegations supporting standing (if controverted)9 must be
7
We must address standing on a claim-by-claim basis, so Pelts & Skins cannot
parlay its standing to challenge the Resource Fund into standing to challenge the
Marketing Fund. See James v. City of Dallas, 254 F.3d 551, 563 (5th Cir. 2001).
8
As noted above, the parties agreed to let the hearing on Pelts & Skins’
motion for summary judgment serve as a submission of the case on the merits. The
district court treated the case as a trial on a stipulated record. See Pelts &
Skins, 259 F. Supp. 2d at 483. At oral argument, Pelts & Skins claimed that it
did not realize that the trial court would go beyond addressing the motion for
summary judgment. However, even had this case been resolved on summary judgment,
Pelts & Skins could not have rested on mere allegations, but would have had to
set forth specific facts by affidavit or other evidence. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992).
9
This parenthetical does not mean that Pelts & Skins did not need to support
its allegations with evidence because the Secretary failed to controvert those
allegations in the district court. Were we to interpret Walker in this way, we
would undermine the established rule that objections to standing may not be
waived. See Lang v. French, 154 F.3d 217, 222 n.28 (5th Cir. 1998); In re
Weaver, 632 F.2d 46, 463 n.6 (5th Cir. 1980).
7
supported adequately by the evidence adduced at trial.” Walker v.
City of Mesquite, 169 F.3d 973, 978 (5th Cir. 1999); see also Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Pelts & Skins
must support each element of standing just as it would support any
other matter on which it bears the burden of proof. Lewis v.
Casey, 518 U.S. 343, 358 (1996).
Pelts & Skins has not carried this burden. Nowhere does the
record indicate that Pelts & Skins ever held a hunting license or
paid any fee that supports the Marketing Fund. Instead, Pelts &
Skins relies on assertions in pleadings. Had the district court
decided this case on a motion to dismiss, these allegations would
be sufficient; however, once a case passes this preliminary stage,
a plaintiff must set forth evidence of an injury in fact. See
Lujan, 504 U.S. at 561 (1992); Walker, 169 F.3d at 978 & n.15.10
The record contains no such evidence.
Pelts & Skins also relies on the district court’s finding that
“plaintiff’s farming operation is conditioned upon payment of
mandatory fees (‘license fees’ and ‘tag fees’) to the DWF.” 259 F.
Supp. 2d at 483-84. We review for clear error the findings
underlying a district court’s determination of standing. Rivera v.
10
Pelts & Skins also relies on a sentence from the Secretary’s Answer in
which the Secretary “admit[s] . . . that plaintiff does contribute to the fund.”
Answer ¶ 24. However, this so-called admission is ambiguous; the Secretary’s
statement does not specify which of the two funds Pelts & Skins has contributed
to. Because this statement is less than “deliberate, clear, and unequivocal,”
it cannot serve as a judicial admission. See Heritage Bank v. Redcom Labs.,
Inc., 250 F.3d 319, 329 (5th Cir. 2001).
8
Wyeth-Ayerst Labs., 283 F.3d 315, 319 (5th Cir. 2002); Pederson v.
La. State Univ., 213 F.3d 858, 869 (5th Cir. 2000). A finding is
clearly erroneous if a review of the evidence leaves us with a firm
conviction that the district court has made a mistake. Dickerson
ex rel. Dickerson v. United States, 280 F.3d 470, 474 (5th Cir.
2002). The absence of any evidence supporting the district court’s
finding firmly convinces us that, based on the record as it stands,
the district court has made a mistake. Cf. Walker v. U.S. Dep’t of
Hous. & Urban Dev., 99 F.3d 761, 770 (5th Cir. 1996).11 Given the
parties’ failure to contest and to address standing in the district
court, the district court’s finding is unsurprising; nevertheless,
that finding is clearly erroneous on this record.
On this record, therefore, Pelts & Skins lacks standing to
challenge expenditures from the Marketing Fund. A district court
may only remedy the injury in fact the plaintiff has established.
Lewis, 518 U.S. at 357 (1996). We therefore vacate the portion of
the injunction concerning the Marketing Fund.
When jurisdiction is not clear from the record but could
exist, we may remand to the district court so that the parties may
supplement the record. Mollett v. Penrod Drilling Co., 872 F.2d
11
The Secretary also argues that the relevant statutes provide that only a
natural person, not a corporate entity such as Pelts & Skins, can hold a hunting
license. Because the district court can consider these arguments on remand, we
need not discuss them except to say that neither the governing statutes, see La.
Rev. Stat. Ann. § 56:8, 56:54 (West Supp. 2004), nor the governing regulations,
see La. Admin. Code tit. 76, § 701 (2003), affirmatively support the district
court’s finding that Pelts & Skins must pay a hunting license fee to operate its
business.
9
1221, 1228 (5th Cir. 1989). Remand is especially appropriate when,
as in this case, jurisdiction may hinge on a simple factual matter
that was left untested because the parties did not dispute standing
in the district court. After further review, the district court
may determine that Pelts & Skins has paid the license fee. We
therefore remand this case in part. On remand, the district court
should ascertain whether Pelts & Skins has standing to challenge
the Marketing Fund and modify the injunction accordingly.
III.
Although Pelts & Skins lacks standing to challenge use of the
Marketing Fund, it has standing to challenge use of the Resource
Fund. We therefore consider whether the use of the Resource Fund
to promote generic alligator marketing violates the First
Amendment. We review the district court’s resolution of this
constitutional question de novo. Baby Dolls Topless Saloons, Inc.
v. City of Dallas, 295 F.3d 471, 482 (5th Cir. 2002).
A.
We first consider whether the generic alligator marketing is
government speech or private speech. The government speech
doctrine holds that “when the government appropriates public funds
to promote a particular policy of its own, it is entitled to say
what it wishes.” Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 833 (1995). The Secretary argues that generic
10
alligator marketing is immune from First Amendment review because
the State of Louisiana is speaking.12
We disagree. Not all government-facilitated speech is
government speech. The government speech doctrine does not apply
if a program is “designed to facilitate private speech, not to
promote a governmental message.” Velazquez, 531 U.S. at 542. In
this case, three considerations--the method by which DWF funds
generic marketing, the composition and operation of the Fur and
Alligator Advisory Council, and an application of the policies
underlying the government speech doctrine--convince us that the
generic marketing at issue is not government speech, but government
facilitation of the private speech of fur and alligator
harvesters.13
12
The Supreme Court has not determined how the government speech doctrine
applies to compelled subsidies for generic marketing. Neither of the two Supreme
Court cases addressing mandatory assessments for generic marketing considers the
question of government speech. See United States v. United Foods, Inc., 533 U.S.
405 (2001); Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997). In
United Foods, the Court intimated that the government speech doctrine might have
been applicable to the issue of compelled assessments for generic marketing but
expressly reserved this question because the argument was not raised or addressed
in the court of appeals. 533 U.S. at 416-17.
Rather, courts usually consider the government speech doctrine when
plaintiffs challenge restrictions on government-funded expression as content- or
viewpoint-discriminatory. See, e.g., Legal Servs. Corp. v. Velazquez, 531 U.S.
533, 536-37 (2001) (striking down restrictions that barred government-funded
lawyers from challenging the validity of welfare statutes); Rosenberger, 515 U.S.
at 822-28 (striking down state university’s restrictions on use of student
activities funds for religious publications); Rust v. Sullivan, 500 U.S. 173,
177-83 (1991) (upholding restriction that barred recipients of federal funds from
discussing abortion as a method of family planning).
13
Three other circuits addressed the application of the government speech
doctrine to programs similar to the generic alligator marketing program and
uniformly concluded that this type of producer-funded generic marketing is not
government speech.
The Third and Sixth Circuits relied upon two basic considerations: first,
that assessments on producers rather than general revenues funded the marketing;
11
First, the method by which DWF funds generic alligator
marketing suggests that generic alligator advertising is the
message of fur and alligator harvesters, not Louisiana as a whole.
Government speech is typically funded from a government’s general
revenues, not assessments levied on a particular group. See
Keller, 496 U.S. at 11; Mich. Pork, 348 F.3d at 162; Frame, 885
F.2d at 1132-33. The portions of the Resource Fund administered by
the Council do not come from general state revenues; rather, they
come from fees levied on only one group: harvesters of furs and
alligators. The Resource Fund remains in an account segregated
from the State’s general revenues. La. Rev. Stat. Ann. §
56:279(C)(1) (West Supp. 2004). Moreover, the expenditures
recommended, reviewed, and approved by the Council primarily
concern precisely those persons who must contribute to the Resource
Fund. This “close nexus” between the individuals who pay for the
and second, that the organizations responsible for the content of the generic
marketing represented private rather than governmental interests. See Cochran,
359 F.3d at 273-74 (generic milk marketing); Mich. Pork, 348 F.3d at 161-62
(generic pork marketing); United States v. Frame, 885 F.2d 1119, 1131-33 (3d Cir.
1989) (generic beef marketing).
The Eighth Circuit declared the government speech doctrine categorically
inapplicable to compelled subsidy cases. See Livestock Mktg. Ass’n v. U.S.
Dep’t of Agric., 335 F.3d 711, 720 (8th Cir. 2003), petition for cert. filed sub.
nom. Veneman v. Livestock Mktg. Ass’n, 72 U.S.L.W. 3539 (U.S. Feb. 13, 2004) (No.
03-1164). The Supreme Court’s treatment of compelled subsidy challenges
convinces us that the government speech doctrine is at least potentially
applicable to this general category of cases. In Keller v. State Bar, the Court
invoked the government speech doctrine and analyzed whether an integrated state
bar was a government agency before turning to the question of whether bar dues
constituted an impermissible compelled subsidy for private speech. 496 U.S. 1,
10-13 (1990). In Board of Regents of University of Wisconsin System v.
Southworth, the Court considered a compelled subsidy challenge to mandatory
student fees and stated in dictum that, had the state university not denied that
the speech at issue was government speech, “the analysis likely would be
altogether different.” 529 U.S. 217, 235 (2000).
12
speech and the content of the speech suggests that Louisiana is
facilitating a private message, not expressing its own. See Frame,
885 F.2d at 1132.
Second, an organization that represents private interests, the
Council, is primarily responsible for the generic marketing
campaign. Cochran, Michigan Pork, and Frame all dealt with generic
marketing programs run by industry-specific councils. In each of
these cases, the federal agriculture secretary appointed the
members of the council based on nominations from industry
representatives. Because these councils were composed of industry
representatives, the courts determined that those councils, though
appointed by the government, represented private interests. See
Cochran, 359 F.3d at 274; Michigan Pork, 348 F.3d at 162; Frame,
885 F.3d at 1133.
Likewise, although the Council is a government creation, the
composition of the Council demonstrates that it represents
primarily private interests.14 The Secretary or his designate
serves on the Council ex officio, and he and other government
14
The Secretary argues that alligator marketing is government speech because
the Council’s governing statutes lay out specific goals and articulate
Louisiana’s interest in promotion of the alligator industry. See La. Rev. Stat.
Ann. §§ 56:266(B), 56:279(A) (West Supp. 2004). The fact that the government has
an interest in facilitating private speech does not convert that speech into a
governmental message. The federal government laid out similar interests in the
statutes at issue in Michigan Pork, Livestock Marketing, and Frame, but none of
those courts considered the articulation of those interests relevant. See Mich.
Pork, 348 F.3d at 159; Livestock Mktg., 335 F.3d at 713-14; Frame, 885 F.2d at
1122-23. Moreover, in Velazquez, the Court held that the legal representation
at issue was not government speech despite the fact that Congress had articulated
a governmental interest in funding legal representation for indigent litigants.
531 U.S. at 536, 541-42.
13
officials appoint all the remaining members of the Council, but the
Secretary does not enjoy plenary discretion to appoint any person
to the Council. La. Rev. Stat. Ann. § 56:266(C) (West Supp. 2004).
Rather, he must appoint a carefully calibrated “cross section of
trappers, alligator hunters, coastal landowners, and alligator
farmers.” Id. Two members of the Council must represent a private
organization, the Louisiana Farmers and Ranchers Association. Id.
The Secretary may choose all nine of the Council members he
appoints based on nominations from private organizations, id., and
the record suggests that the Secretary does so. Because
representatives of private alligator harvesters compose the heavy
majority of the Council, it naturally reflects private rather than
governmental interests.15
Furthermore, although the Secretary portrays alligator
marketing as a DWF-run program, the Council, not DWF, primarily
controls how the Resource Fund is used.16 Cf. Michigan Pork, 348
15
In Lebron v. National Railroad Passenger Corp., the Supreme Court
considered whether Amtrak was “an agency or instrumentality of the United States
for the purpose of individual rights guaranteed against the Government by the
Constitution.” 513 U.S. 374, 394 (1995). Lebron, however, involved an issue
very different from the question presented in this case. In Lebron, an artist
sued to compel Amtrak to display political artwork on an Amtrak-owned billboard.
Id. at 376-78. The question was not whether Amtrak’s use of the billboard was
government speech; like a privately-owned billboard, the Amtrak billboard was
designed to facilitate promotion of private messages. Id. Rather, the question
in Lebron was whether the First Amendment placed any limitations on Amtrak’s use
of the billboard. Id. We thus consider Lebron inapplicable to the issue at
hand. Accord Cochran, 359 F.3d at 274 n.10; Livestock Mktg., 335 F.3d at 720
n.5.
16
To be sure, DWF could exercise limited control over the Council. Aside
from his appointment power, the Secretary also retains the power to veto the
Council’s expenditures from the Resource Fund. See La. Rev. Stat. Ann. §
14
F.3d at 162. DWF cannot spend money from the Resource Fund without
the Council’s approval. La. Rev. Stat. Ann. § 56:279(D)(3) (West
Supp. 2004). Moreover, the record suggests that DWF’s approval of
contracts recommended by the Council is largely perfunctory. Cf.
United Foods, 533 U.S. at 416-17 (suggesting in dictum that
evidence of pro forma oversight implies that government-facilitated
generic marketing is not government speech). Our review of the
record reveals no evidence that DWF crafts or edits the content of
any of the generic marketing at issue; rather, this task falls to
private contractors hired by the Council to market alligator
products. Thus, the Council, not DWF, is primarily responsible for
generic alligator marketing.
Third, the policies underlying the government speech doctrine
do not support the application of that doctrine to this case. One
rationale for the government speech doctrine is that, without the
doctrine, “every citizen [would] have a right to insist that no one
paid by public funds express a view with which he disagreed . . .
and the process of government as we know it would be radically
transformed.” Keller, 496 U.S. at 12-13. This case, however, does
not raise the specter of lawsuit-induced paralysis. As our
discussion of standing demonstrates, only members of the narrow
56:279(D) (West Supp. 2004). The record, however, contains no evidence that the
Secretary has ever exercised that veto.
15
group compelled to contribute funds to subsidize directly a private
message have standing to challenge the expression at issue.
A second rationale for the government speech doctrine is that
“[w]hen the government speaks, for instance to promote its own
policies or to advance a particular idea, it is, in the end,
accountable to the electorate and the political process for its
advocacy.” Velazquez, 531 U.S. at 541 (quoting Southworth, 529
U.S. at 235). In contrast, the government can easily avoid
accountability when it imposes costs on a single, narrow group to
facilitate a specialized message, especially if only a small
minority of that group objects to the message expressed.
We are not dealing with a program funded from general revenues
by broadly applicable taxes. Nor are we dealing with a
governmental message crafted, controlled, and expressed by an
agency designed to represent state government. Rather, in this
case we confront a program in which the government uses its
authority to exact fees from private individuals, then facilitates
the use of those fees to express a message designed to benefit
private commercial interests. This sort of program is not
government speech.
B.
Because we have determined that use of the Resource Fund for
generic marketing represents a compelled subsidy for private
speech, we must decide whether that compulsion is nonetheless
16
permissible. The Supreme Court has twice addressed compelled
subsidies for generic marketing. In Glickman v. Wileman Bros. &
Elliott, Inc., 521 U.S. 457 (1997), the Court upheld compelled
subsidies for generic fruit marketing. In United States v. United
Foods, Inc., 533 U.S. 405 (2001), the Court struck down compelled
subsidies for generic mushroom marketing. We must mediate between
these two contrasting precedents, or, in the words of the district
court, “determine whether Louisiana alligator producers are more
like mushroom producers than like peach producers.” Pelts & Skins,
259 F. Supp. 2d at 483.
In Glickman, the Court evaluated a New Deal-era regulatory
scheme that required producers of peaches, plums, and nectarines to
participate in “[c]ollective, rather than competitive, marketing.”
521 U.S. at 461. This collective marketing scheme “displaced
competition” by imposing uniform prices, dictating the quality and
quantity of the fruits marketed, determining the grade and size of
the fruits sold, providing for the orderly disposition of surplus,
authorizing joint research and development projects, requiring
standardized packaging, and even exempting affected producers from
antitrust laws. Id. As part of this displacement of competition,
the government required producers to pay for generic marketing of
the fruit. Id. A group of growers alleged that the assessments
violated the First Amendment. The Court upheld the assessments
only after “stress[ing] the importance of the statutory context.”
17
Id. at 469. Because the growers were part of a “broader collective
enterprise in which their freedom to act independently [was]
already constrained by the regulatory scheme,” the Court
characterized the assessments for generic marketing as “a species
of economic regulation that should enjoy the same strong
presumption of validity that we accord to other policy judgments
made by Congress.” Id. at 477.
Later, in United Foods, mushroom handlers refused to pay
mandatory assessments to fund generic mushroom marketing. 533 U.S.
at 408-09. The Court struck down the assessments as violations of
the handlers’ First Amendment right not to subsidize speech with
which they disagreed. Id. at 409. Unlike the program in Glickman,
the Court reasoned, the mushroom program was not “ancillary to a
more comprehensive program restricting marketing autonomy.” Id. at
411. Rather, the generic mushroom advertising, “far from being
ancillary, [was] the principal object of the regulatory scheme.”
Id. at 411-12. The Court summarized its compelled subsidy cases
and enunciated a guiding principle: When the government binds
individuals into a collective association, the government can also
require that those persons subsidize speech germane to the purpose
underlying the association. United Foods, 533 U.S. at 413-15; see
also Keller, 496 U.S. at 13-14 (integrated bar); Abood v. Detroit
Bd. of Educ., 431 U.S. 209, 235-36 (1977) (closed union shop).
Because the mushroom program did not require association except to
18
support generic marketing, the program violated the First
Amendment. United Foods, 533 U.S. at 415-16.
We agree with the district court that Louisiana’s generic
alligator marketing program more closely resembles the mushroom
program at issue in United Foods than the fruit program at issue in
Glickman. The Glickman rule permitting compelled subsidies applies
when individuals have been “bound together” in a collective.
United Foods, 533 U.S. at 412; accord Cochran, 359 F.3d at 275;
Delano Farms Co. v. Cal. Table Grape Comm’n, 318 F.3d 895, 898-99
(9th Cir. 2003) (striking down compelled subsidies for generic
grape marketing). Without an underlying collectivized association,
a state cannot justify a compelled subsidy. See United Foods, 533
U.S. at 413-15. Louisiana alligator producers are not part of a
collective association akin to Glickman’s marketing cooperative.
None of the laws governing alligator production imposes collective
rather than competitive marketing as the scheme in Glickman did.
Cf. Cochran, 359 F.3d at 275. Rather, as the Secretary admits, the
State of Louisiana does not regulate prices in the alligator
market, and alligator harvesters are free to negotiate prices and
to market products as they wish.17
17
Abood and Keller allow compelled subsidies for speech that is germane to
a lawfully compelled collective association. Abood, 431 U.S. at 235-36; Keller,
496 U.S. at 14. In this case there is no underlying association to which the
generic marketing could be germane. Therefore, we need not determine whether
generic marketing is germane to Louisiana’s other alligator-related regulations.
19
The Secretary emphasizes Louisiana’s extensive regulation of
alligator harvesting and argues that generic alligator marketing,
like generic peach marketing, is permissible because it is
ancillary to Louisiana’s alligator regulations.18 Regulations alone
do not create compelled association. See Cochran, 359 F.3d at 275;
Delano Farms, 318 F.3d at 899. In Glickman, the fruit producers
were subject to a specific type of regulation: a scheme that
displaced individual marketing efforts and thus necessitated
collective generic marketing. See 521 U.S. at 461. Likewise, in
Keller and Abood, the state required that individuals join a
collective interest group; to be effective, that interest group had
to speak on behalf of its members on certain issues. See Keller,
496 U.S. at 14-15; Abood, 431 U.S. at 220-23. A number of
interdependent state, federal, and international laws impose
requirements on alligator harvesters, but these laws do not require
collective association, and “it is only the overriding
associational purpose which allows compelled subsidy for speech in
the first place.” United Foods, 533 U.S. at 413 (emphasis added).19
18
The Secretary also seeks to distinguish United Foods and its progeny by
pointing out that those cases involved privately-owned commodities, whereas
alligators are the property of the State of Louisiana. La. Civ. Code Ann. art.
3413 (West 1994). However, this case does not involve the marketing of live wild
alligators, but the marketing of products made from lawfully captured and
enclosed alligators, which are private property. See id. arts. 3413, 3415.
19
In Glickman, the Court identified three ways in which the regulatory scheme
at issue was different from laws found to abridge the First Amendment: (1) the
assessments did not bar producers from communicating their own messages; (2) the
assessments did not compel the producers to engage in any actual or symbolic
speech; and (3) the assessments did not compel endorsement of any political or
ideological views. 521 U.S. at 469. The Secretary urges us to consider these
20
We recognize that, unlike the assessments at issue in United
Foods, Cochran, and Delano Farms, a majority of the alligator-
related assessments fund programs other than generic marketing.
See United Foods, 533 U.S. at 411-12, 415; Cochran, 359 F.3d at
276; Delano Farms, 318 F.3d at 899. In each of the past several
years, the Council has spent approximately 15% of the Resource Fund
on generic marketing and the remainder on research and law
enforcement. This distinction in the percentage of fees that go to
generic marketing does not support applying Glickman to this case.
The key element of Glickman--a highly collectivized marketing
association--is still absent. The common thread uniting Abood,
Keller, Glickman, and United Foods is that compelled subsidization
of speech is permissible when individuals have been bound into a
collective association. United Foods, 533 U.S. at 413-15. The
fees imposed here, though used for more than generic marketing,
represent a collective association only in the loosest sense of
that term.20
factors. However, “[t]hese points were noted in Glickman in the context of a
different type of regulatory scheme and are not controlling of the outcome.”
United Foods, 533 U.S. at 411. The Court in United Foods was especially careful
to emphasize that the non-political, non-ideological nature of the generic
marketing was irrelevant. Id. at 410-11. Because the compelled subsidies in
this case are materially distinct from the collective marketing scheme at issue
in Glickman, these three factors are irrelevant to this case.
20
The Secretary observed at oral argument that, in other compelled subsidy
cases, courts have struck down entire marketing programs and invalidated the
collection of assessments. E.g., United Foods, 533 U.S. at 408-09; Cochran, 359
F.3d at 280; Mich. Pork, 348 F.3d at 159; Livestock Mktg., 335 F.3d at 713;
Delano Farms, 318 F.3d at 897. In contrast, Pelts & Skins does not seek to stop
paying alligator-related fees, but instead challenges only the use of those fees.
21
In sum, Louisiana’s alligator regulations are more analogous
to the mushroom marketing program in United Foods than to the fruit
marketing collective in Glickman. The use of mandatory fees for
generic marketing is not ancillary to a government-imposed
collective association. Louisiana’s use of the Resource Fund to
support generic marketing therefore violates the First Amendment.21
IV.
As the record stands, Pelts & Skins has not proven that it has
standing to challenge use of the Marketing Fund. Therefore, we
The Secretary argues that the limited nature of this challenge proves that
generic marketing is concomitant to other programs supported by the Resource
Fund. Although generic marketing might be one of a number of alligator-related
programs, it is not ancillary to any associational regulatory scheme, much less
the type of marketing collective at issue in Glickman.
21
The Secretary contends that, even if the alligator marketing program
burdens First Amendment rights, that program survives constitutional review under
the test for restrictions on non-misleading commercial speech enunciated in
Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557,
566 (1980).
United Foods did not explain if or how the Central Hudson test applies to
compelled subsidy cases, see 533 U.S. at 410, and other circuits have diverged
on this question, compare Mich. Pork, 348 F.3d at 163 (refusing to apply Central
Hudson test to compelled subsidy for generic pork marketing), with Livestock
Mktg., 335 F.3d at 722-726 (adapting Central Hudson test to compelled subsidy for
generic beef marketing).
We doubt that the Central Hudson test applies. See Glickman, 521 U.S. at
474 n.18 (questioning in dictum “why the Central Hudson test, which involved a
restriction on commercial speech, should govern a case involving the compelled
funding of speech”). Like the Third Circuit, however, we choose to leave this
question open because even were we to apply the Central Hudson test, Louisiana’s
alligator marketing program would not pass it. See Cochran, 359 F.3d at 277-80.
To pass this test, a restriction on commercial speech must directly advance a
substantial government interest and burden First Amendment rights no more than
necessary to accomplish that interest. Central Hudson, 447 U.S. at 566. Even
granting arguendo that Louisiana has a substantial interest in conservation and
that the message expressed by the Council’s generic marketing helps advance that
interest, Louisiana’s program burdens First Amendment speech more than necessary.
Louisiana does not need to compel alligator harvesters to support generic
marketing, but could simply fund generic marketing from its general tax revenues.
22
vacate the portion of the injunction barring Louisiana from using
the Marketing Fund to support generic alligator marketing and
remand so that the district court may determine whether Pelts &
Skins has standing and modify the injunction accordingly.
With regard to the remaining challenge, we conclude that
Louisiana’s use of the Resource Fund to support generic marketing
violates the First Amendment. We therefore affirm the district
court’s judgment granting a permanent injunction against use of the
Resource Fund for generic alligator marketing.
AFFIRMED in part, VACATED in part, and REMANDED in part.
23