During the past decade, there have been numerous lawsuits in the courts concerning whether the compelled funding of generic advertising violates the First Amendment rights of those compelled to pay. The courts have wrestled with the question, often resulting in conflicting opinions.

In late 2002, six citrus growers filed a lawsuit alleging that the box tax levied by the Department of Citrus on each box of commercially grown citrus to fund the DOC’s generic advertising program is unconstitutional under the Federal and Florida constitutions’ guarantees of free speech and free association. The two arguments raised in the original complaint were that the tax illegally 1) compelled the growers to subsidize speech without their consent, and 2) compelled growers to financially support speech to which they objected.

One argument raised by the DOC in defense of the box tax was that because the DOC is an agency of the State of Florida, it is clearly government, and therefore immune from a First Amendment challenge. This is known as the Government Speech Defense.

In March 2003, the trial court found in favor of the plaintiffs and rejected the DOC’s government speech defense.  The trial distinguished the box tax as being a targeted tax on a particular group, and not a general revenue tax, which they stated was a significant difference when dealing with the government speech defense.

Late in 2004, Florida’s Second District Court of Appeals ruled in favor of the plaintiffs by upholding the trial court’s decision on the issue of government speech. However, the court opened the door to the possibility that its ruling might be undermined by what the U.S. Supreme Court was doing in the beef case. The Court stated its belief that “the  issue of generic advertising is not yet fully resolved.”

The DOC appealed the decision of the DCA to the Florida Supreme Court.

In the past eight years, the U.S. Supreme Court has considered three similar cases dealing with this question. However, in the most recent case — Mike Johanns, Secretary of Agriculture v. Livestock Marketing Association, commonly referred to as the beef case — the Court considered for the first time whether the advertising at issue was the government’s own speech and therefore exempt from First Amendment scrutiny.

The Court held: “Because the beef checkoff funds the government’s own speech, it is not susceptible to a First Amendment compelled-subsidy challenge.” It squarely found that the Cattlemen’s Beef Board, though composed of beef producers, is answerable to the Secretary of Agriculture, and some members are also appointed by him. Therefore, the speech the Board produces (the advertising and promotional campaigns) are governmental messages, and are entitled to the Government Speech Defense.

The Court also said that there was no basis to the theory advanced by the lower courts and those against the beef checkoff that because the generic advertising was funded by a targeted assessment on beef producers rather than by general revenue, the government speech defense did not apply.

Florida Citrus Commission Chairman Andy Taylor said, “We could not have had a clearer, stronger or more helpful opinion as far as our case is concerned. The decision by the U.S. Supreme  Court in the beef case fully supports the arguments that the DOC has made in the box-tax case.”

That landmark ruling has already impacted the box-tax case.

On May 27, the Florida Supreme Court served on the plaintiffs an Order to Show Cause directing them to file a brief explaining “why the court should not remand the decision being reviewed for reconsideration in light of the United States Supreme Court’s decision in the beef case.”

In answer to the Court’s Order to Show Cause, the plaintiffs asked the court to remand the case back to the trial court, “where amendments to the pleadings can be appropriately addressed in an orderly manner.”

The DOC asked the Florida Supreme Court to remand the case back to the 2nd DCA with instructions, in light of the decision in the beef case, to reverse its decision and find in favor of the DOC.

Though the case has not been concluded, there is now every reason to believe that the box tax will survive.

Karen McEver is the editor of the Florida Citrus Reporter, 863-294-3838. E-mail is fcrnan_k@msn.com.