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The California Supreme Court on Thursday once again struggled with the issue of commercial speech rights under the First Amendment while continuing to uphold state programs that require growers to fund generic agricultural advertising. The court’s justices split on whether they needed to reconsider their own 4-year-old ruling on the issue in light of subsequent U.S. Supreme Court rulings. But they unanimously agreed to remand the case to determine if there is substantial evidence that the program in question — mandatory fees for agricultural ads — serves a legitimate government interest under the state constitution. The opinion in Gerawan Farming Inc. v. Kawamura, 04 C.D.O.S. 4764, appears to be a victory for the state and the California Plum Marketing Board, but it also shows the difficulties the justices experience in deciding commercial speech issues. While the majority held that the marketing program does not violate the federal speech rights of Fresno County’s Gerawan Farming Inc., three justices had reservations. Justice Joyce Kennard argued that the court’s 2000 ruling in Gerawan Farming Inc. v. Lyons, 24 Cal.4th 468 — which said fees for generic advertising do not implicate free speech — was placed in doubt by a subsequent U.S. Supreme Court ruling. That case, United States v. United Foods Inc., 533 U.S. 405, held that compelled funding of commercial speech violates the First Amendment if not “ancillary to” a comprehensive marketing program. “Although the majority is right in reconsidering the First Amendment issue,” Kennard held, “it is wrong in rejecting it on the merits based on the allegations in Gerawan’s complaint.” Justice Janice Rogers Brown, meanwhile, argued that United Foods doesn’t seem to support the majority’s reasoning, and that the U.S. Supreme Court last month granted review in a case that will revisit the issue. “Given this confusion over the proper standard under the federal Constitution,” she wrote, “I see no reason to wade into this thicket.” First District Court of Appeal Justice Ignazio Ruvolo, who was sitting in for Justice Marvin Baxter, concurred. In the original Gerawan case, the state Supreme Court split 4-3, with Chief Justice Ronald George, Justice Ming Chin and former First District Justice Daniel Hanlon, also subbing for Baxter, dissenting. The court also found itself at odds over commercial speech in Kasky v. Nike Inc., 27 Cal.4th 939, in which the justices held 4-3 in 2002 that companies could be sued for false advertising over policy statements. Justices Chin, Baxter and Brown dissented. The case decided Thursday was brought by the owners of Gerawan, a 46-year-old family-run orchard, who objected to paying mandatory fees for generic advertising for plums they felt were inferior to their own. The justices held that Gerawan I, as it’s called, still passed constitutional muster after the U.S. Supreme Court’s ruling in United Foods, but said the lower courts must conduct fact-finding to determine whether the program at issue serves a substantial public purpose — in this case, protecting the state’s plum industry. “Given that this case has not advanced beyond the pleading stage,” Justice Carlos Moreno wrote, “there is as yet no evidence in the record to support the government’s position that generic advertising is an efficacious means of significantly improving the sale of agricultural products in this state.” Sacramento-based Deputy Attorney General Tracy Winsor, who argued the case for the state, called the ruling “narrowly crafted.” It establishes the test for constitutionality, she said, and gives the plum program a chance to prove its case on the facts.

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