Delano Farms Co. v. Cal. Table Grape Comm'n

speech on behalf of California table grapes as a generic category violates their right to free speech under article I, section 2, subdivision (a) of the state Constitution (sometimes hereafter article I, section 2 ). Specifically, plaintiffs believe that the table grapes they grow and ship are exceptional, and cast the assessment scheme as infirm insofar as it requires them to sponsor a viewpoint (promoting all California table grapes equally) with which they disagree.

The Commission responds that the Act's compelled-subsidy program does not violate article I, section 2 because the promotional messaging it underwrites represents government speech, as opposed to private speech. Both the Commission's position and that of plaintiffs recognize this court's prior determinations that a government program that compels market participants to subsidize generic promotional speech over their objections implicates article I, section 2 ( Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468 , 509-510, 101 Cal.Rptr.2d 470 , 12 P.3d 720 ( Gerawan I ) ) and is subject to intermediate scrutiny ( Gerawan Farming, Inc. v. Kawamura (2004) 33 Cal.4th 1 , 6, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 ( Gerawan II ) )-if these communications represent private speech. Gerawan II also indicated, however, that significantly more deference would be accorded to a compelled-subsidy scheme that funds only government speech. ( Id ., at pp. 26-28, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 .) In Gerawan II , whether the challenged program produced government speech was left for development and determination on remand. ( Id ., at p. 28, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 .) This proceeding picks up where Gerawan II left off, presenting the question whether promotional speech generated by a compelled-subsidy program amounts to government speech and for that reason avoids heightened scrutiny under article I, section 2.

We conclude that the Commission's advertisements and related messaging represent government speech, and hold that the

of existing markets and the development of new markets, the interests of the fresh grape industry of California, and the public interest of the people of this state, will be adversely affected" ( id ., subd. (b) ). Furthermore, the Legislature found that "[t]he inability of individual producers to maintain or expand present markets or to develop new or larger markets for such grapes results in an unreasonable and unnecessary economic waste of the agricultural wealth of this state" ( id ., subd. (c) ); and "[s]uch conditions and the accompanying waste jeopardize the future continued production of adequate supplies of fresh grapes for human consumption for the people of this and other states, and prevent producers from obtaining a fair return for their labor, their farms and their production. As a consequence, the purchasing power of such producers has been in the past, and may continue to be in the future unless such conditions are remedied, low in relation to that of other people engaged in other gainful occupations within the state, and they are thereby prevented from maintaining a proper standard of living and from contributing their fair share to the support of the necessary governmental and education functions, thus tending to increase unfairly the tax burden of other citizens of the state" ( id ., subd. (d) ).

that the commissioners drawn from the state's producers "are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest." (§ 65576.) The public member "shall represent the interests of the general public in all matters coming before the commission." (§ 65575.2.)

various varieties may be placed in the hands of the ultimate consumer in the best possible condition." ( Id ., subd. (k).) These and other provisions of the Act are to be "liberally construed." (§ 65674.)

To pay for the Commission's activities, the Act authorizes an assessment on shipments of fresh grapes. This assessment is set annually by the Commission, but by statute may not exceed .6522 cents per pound of shipped grapes. (§§ 65572, subd. ( l ), 65600.) These assessments are paid to the Commission by shippers, each of which is in turn authorized to collect the assessments from the responsible producers. (§§ 65604, 65605.) In the event of nonpayment of an assessment, or if the Commission believes a violation of the Act, or any rule or regulation promulgated under the Act, has occurred, it may bring an action in its name for collection, civil penalties, or injunctive relief. (§ 65650.) Violations of the Act, including a shipper's refusal to supply the Commission with certain information regarding its supplier or suppliers of grapes, are punishable as misdemeanors. (§ 65653.) The Act provides that "[t]he State of California shall not be liable for the acts of the [C]ommission or its contracts." (§ 65571.)

The Commission assumed its responsibilities under the Ketchum Act only after a referendum among producers. (§ 65573.) The Commission's operations may be suspended through a similar process. If 11 members of the Commission make a finding that the Act "has not tended to effectuate its declared

Vineyards) have since joined the litigation, raising similar claims.

All plaintiffs assert that the Ketchum Act is unconstitutional insofar as it requires them to subsidize promotional speech that advances a viewpoint with which they disagree. Delano Farms and Blanc Vineyards, for example, each allege that "[t]he Commission's advertisements, promotions, and other expressive activities are largely designed to promote table grapes as though they were a generic commodity with generic quality," whereas these plaintiffs "promote and market their own brands and labels of table grapes to distinguish to [their] buyers [their] product[s], grade, quality and [their] service from that of [their] competitors in order to secure a higher price and repeat business." The other plaintiffs make analogous allegations. Plaintiffs also claim that a conflict exists between the Commission's messaging regarding fresh grapes and the message that plaintiffs support. Delano Farms and Blanc Vineyards assert that "[t]he generic advertising and promotion activities engaged in by the Commission [are] not at all helpful to [p]laintiffs and [are] indeed harmful to [p]laintiffs' message which is to buy [p]laintiffs' table grapes because they are better, a better consumer value, and that [p]laintiffs

Johanns v. Livestock Marketing Assn. (2005) 544 U.S. 550 , 125 S.Ct. 2055 , 161 L.Ed.2d 896 ( Johanns ) as a matter of federal law. The Court of Appeal then reviewed pertinent provisions of the Ketchum Act and concluded therefrom "that the Commission's promotional activities are effectively controlled by the state and therefore are government speech." This conclusion, the Court of Appeal reasoned, meant that the Commission's promotional activities are "immune to challenge under the California Constitution."

We granted review.

Pleasant Grove City v. Summum (2009) 555 U.S. 460 , 467, 129 S.Ct. 1125 , 172 L.Ed.2d 853 ( Summum ) ["The Free Speech Clause restricts government

compelled subsidies and government speech occurred in Keller v. State Bar of California (1990) 496 U.S. 1 , 110 S.Ct. 2228 , 110 L.Ed.2d 1 ( Keller ). The high court had laid the foundation for the Keller litigation some time before, in Abood v. Detroit Board of Education (1977) 431 U.S. 209 , 97 S.Ct. 1782 , 52 L.Ed.2d 261 ( Abood ). There, the court reviewed a challenge brought under the First and Fourteenth Amendments to the United States Constitution to a requirement, authorized by statute, that public employees pay a union fee as a condition of employment. ( Id ., at pp. 211-213, 97 S.Ct. 1782 .) The court in Abood concluded that, notwithstanding the plaintiffs' objections to the fee, the assessment was permissible to the extent that it subsidized activities that " 'promote[d] the cause which justified bringing the group together' " ( id ., at p. 223, 97 S.Ct. 1782 , quoting Machinists v. Street (1961) 367 U.S. 740 , 778, 81 S.Ct. 1784 , 6 L.Ed.2d 1141 (conc. opn. of Douglas, J.) ), i.e., collective bargaining, contract administration, and grievance-adjustment duties undertaken by the union ( Abood , at p. 232, 97 S.Ct. 1782 ).

agency, the State Bar could "use dues to finance all activities germane to its statutory purpose, a phrase which we construe broadly to permit the bar to comment generally upon proposed legislation or pending litigation." ( Id ., at p. 1157, 255 Cal.Rptr. 542 , 767 P.2d 1020 .)

The United States Supreme Court reversed, concluding that the State Bar should not be considered a government actor in this context. The unanimous decision in Keller , supra , 496 U.S. 1 , 110 S.Ct. 2228 , acknowledged that this court "is the final authority on the 'governmental' status of the State Bar of California for

the holdings in Abood and Keller . The plaintiffs in these lawsuits have

least to implicate its article I right to freedom of speech against the California Plum Marketing Program for compelling funding of generic advertising." ( Id ., at p. 510, 101 Cal.Rptr.2d 470 , 12 P.3d 720 .) Gerawan I added, however, that "[o]ur conclusion ... brings no conclusion to this cause. That the California Plum Marketing Program implicates [plaintiff's] right to freedom of speech under article I does not mean that it violates such right." ( Id ., at p. 517, 101 Cal.Rptr.2d 470 , 12 P.3d 720 .) Whether the program had that effect was left for determination in subsequent proceedings. ( Ibid . )

At oral argument in Gerawan I , supra , 24 Cal.4th 468 , 101 Cal.Rptr.2d 470 , 12 P.3d 720 , amici curiae on behalf of the government sought to characterize the advertisements funded by the program as government speech. ( Id ., at p. 515, fn. 13, 101 Cal.Rptr.2d 470 , 12 P.3d 720 .) We rejected this belated effort to inject the government speech doctrine into the case, observing that the plaintiff had not alleged facts within its complaint that, if true, would show that the advertising amounted to government speech, and that the CDFA had not premised its motion for judgment on the pleadings before the superior court on this ground. Amici curiae's arguments to this court were therefore "[t]oo little, too late." ( Ibid . ) Earlier, in discussing the Glickman case, Gerawan I had described government speech as "somewhat tautologically, speech by the government itself concerning public affairs" and surmised that this characterization "does not appear to cover generic advertising under a federal marketing order, which is not so much a mechanism of regulation of the producers and handlers of an agricultural commodity by a government agency, as a mechanism of self-regulation by the producers and handlers themselves." ( Id ., at p. 503, fn. 8, 101 Cal.Rptr.2d 470 , 12 P.3d 720 .)

4. United Foods

The government speech doctrine also was raised too late to factor into the analysis in United States v. United Foods, Inc. (2001) 533 U.S. 405 , 121 S.Ct. 2334 , 150 L.Ed.2d 438 ( United Foods ), another case that involved the relationship between compelled subsidies for generic advertising and the right to free speech under the First Amendment. In United Foods , the court addressed a challenge to mandatory assessments imposed upon mushroom growers pursuant to the Mushroom Promotion, Research, and Consumer Information Act. ( 7 U.S.C. § 6101 et seq. ; hereafter Mushroom Act.) The statute authorized the use of these assessments for "projects

products." ( 7 U.S.C. § 2901 (b) ; Johanns , at p. 553, 125 S.Ct. 2055 .) This statute directs the federal Secretary of Agriculture to advance the statutory goal of promoting the marketing and consumption of beef products by issuing a Beef Promotion and Research Order. ( 7 U.S.C. § 2903 .) Through this order, the Secretary of Agriculture appoints the members of a promotional board (hereafter the Beef Board), comprised of beef producers and importers who have been nominated by trade associations and importers. ( Id ., § 2904(1).) The Beef Board elects 10 of its members to a Beef Promotion Operating Committee (hereafter Operating Committee), who serve together with 10 representatives named by a federation of state beef councils. ( Id ., § 2904(4)(A).) The Operating Committee designs promotional campaigns relating to beef, funded by assessments imposed on cattle sales and on the

revenues" ( id ., at p. 562, 125 S.Ct. 2055 ), and were not explicitly attributed to the state but rather, in at least

Beeman , supra , 58 Cal.4th at p. 341, 165 Cal.Rptr.3d 800 , 315 P.3d 71 .) We construe Johanns , and other high court pronouncements regarding government speech, as centrally concerned with the presence or absence of the requisite indicia of

that is subject to meaningful oversight by the public and other government actors. This oversight includes mechanisms that serve to ensure that the Commission's messaging remains within the parameters set by statute. These circumstances establish that the communications involved here represent government speech for purposes of article I, section 2.

Recognition of the promotional messaging produced under the Ketchum Act as government speech follows, first, from the Act's findings and charge to the Commission. As observed ante , in enacting this statute the Legislature found that "[i]t is ... necessary and expedient in the public interest to protect and enhance the reputation of California fresh grapes for human consumption in intrastate, interstate and foreign markets" ( § 65500, subd. (e) ), and "[t]he promotion of the sale of fresh grapes for human consumption by means of advertising ... is ... in the interests of the welfare, public economy and health of the people of this state" ( id ., subd. (f) ). The Act thus expressly endorses the promulgation of advertising and similar speech that promotes

Gateway Community Charters v. Spiess (2017) 9 Cal.App.5th 499 , 507, 215 Cal.Rptr.3d 133 ), fulfill quintessentially governmental functions.

Of course, public corporations are not invariably regarded as units of the government for purposes of the government speech doctrine. The high court's analysis and decision in Keller , supra , 496 U.S. 1 , 110 S.Ct. 2228 , discussed ante , instruct as much. We need not and do not decide here whether the Commission is, on its own, a state actor capable of producing government speech. At a minimum, however, the relevant circumstances here distinguish this case from Keller in that they underscore greater overall state responsibility for the message being communicated by the public corporation at issue. In Keller , the high court

with other compelled-subsidy programs (see footnote 3, ante ), it

messaging for these communications to represent government speech, even without direct participation by CDFA staff in the

analysis might be required under article I, section 2. (Accord, Johanns , supra , 544 U.S. at p. 564, fn. 7, 125 S.Ct. 2055 .) But plaintiffs have not shown that the statute, as implemented, has any effect on their constitutional right to exercise free speech.

For example, although at oral argument counsel for plaintiffs asserted that the Commission's promotional speech effectively prevents his clients from communicating their preferred message, the record below does not reveal a triable issue of fact on this point. (See Gallo Cattle , supra , 159 Cal.App.4th at p. 967, 72 Cal.Rptr.3d 1 ; Miller , supra , 151 Cal.App.3d at p. 702, 198 Cal.Rptr. 877 .) Similarly, the record yields no basis for a triable claim that the Ketchum Act forges such a close connection between plaintiffs and the Commission's promotional speech that it conveys, inaccurately, their endorsement of the

Ketchum Act's compelled-subsidy scheme does not violate plaintiffs' rights under article I, section 2. 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. Yet, as the United States Supreme Court recently cautioned, although "the government-speech doctrine is important-indeed, essential-it is a doctrine that is susceptible to dangerous misuse." ( Matal v. Tam (2017) 582 U.S. ----, 137 S.Ct. 1744 , 1758, 198 L.Ed.2d 366 ( Matal ).) Therefore, courts must take care in distinguishing government speech from

are funded by assessments imposed upon shippers of these grapes, which are passed along to their producers.

1. Legislative Findings

The Ketchum Act begins with a series of findings by the Legislature. Several of these findings concern the importance assigned to the production and marketing of California fresh grapes, and the challenges faced by growers of these grapes. These findings include, "[g]rapes produced in California for fresh ... consumption comprise one of the major agricultural crops of California, and the production and marketing of such grapes affects the economy, welfare, standard of living and health of a large number of citizens residing in this state" ( § 65500, subd. (a) ); and "[i]ncreased plantings of vineyards and improved cultural practices for the production of California grapes for fresh ... consumption have increased and will continue to increase the production thereof and unless the fresh ... consumption of California grapes is increased by the expansion

and maintaining their purchasing power at a more adequate, equitable and reasonable level" ( id ., subd. (g) ); and "[t]he production and marketing of grapes produced in California for fresh human consumption is declared to be affected with a public interest; the provisions of this chapter are enacted in the exercise

government agency for purposes of the government speech doctrine. Providing an additional basis for its holding, the court determined that the Act's compelled-subsidy program directly advances a substantial government interest and is not more extensive than necessary to serve that interest, and therefore withstands intermediate scrutiny.

When plaintiffs appealed, the Court of Appeal affirmed. The Court of Appeal determined, first, that article I, section 2 does not demand a more constrained construction of the government speech doctrine than the one adopted by the United States Supreme Court in

this right. A law may

regulation of private speech; it does not regulate government speech"].) The doctrine also finds support in the fact that the electorate and the political process ultimately will determine what the government does and does not say. ( Board of Regents of Univ. of Wis. System v. Southworth (2000) 529 U.S. 217 , 235, 120 S.Ct. 1346 , 146 L.Ed.2d 193 ["When 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. If the citizenry objects, newly elected officials later could espouse some different or contrary position."].) As the United States Supreme Court recently explained, "When the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. [Citation.] That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. [Citation.] Thus, government statements (and government actions and programs that take the form of speech) do not

California ... serve[ ] to distinguish it from the role of the typical government official or agency." ( Id ., at p. 12, 110 S.Ct. 2228 .) These characteristics included the "essentially advisory" nature of the State Bar's responsibilities, and the fact that attorneys, not the general public, provide the bulk of its funding. ( Id ., at p. 11, 110 S.Ct. 2228 .) The Keller court observed, "The State Bar of California was created, not to participate in the general government of the State, but to provide specialized professional advice to those with the ultimate responsibility of governing the legal profession. Its members and officers are such not because they are citizens or voters, but because they are lawyers." ( Id ., at p. 13, 110 S.Ct. 2228 .) The court therefore applied to the State Bar a distinction similar to the one recognized in Abood , supra , 431 U.S. 209 , 97 S.Ct. 1782 : "the compelled association and integrated bar are justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity." ( Keller , at pp. 13-14, 110 S.Ct. 2228 .)

2. Glickman

The present litigation forms part of a continuum of cases that have built upon

Gerawan I , at p. 480, 101 Cal.Rptr.2d 470 , 12 P.3d 720 .)

Gerawan I , supra , 24 Cal.4th 468 , 101 Cal.Rptr.2d 470 , 12 P.3d 720 , followed the United States Supreme Court's decision in Glickman , supra , 521 U.S. 457 , 117 S.Ct. 2130 , in rejecting the plaintiff's

United Foods that most of the funds collected through the assessments were used for generic advertising. ( United Foods , at p. 408, 121 S.Ct. 2334 .)

In finding that the imposition of these assessments violated the plaintiffs' First Amendment rights, the court in United Foods , supra , 533 U.S. 405 , 121 S.Ct. 2334 , distinguished Glickman on the ground that in the earlier case, "[t]he opinion and the analysis of the Court proceeded upon the premise that the producers were bound together and required by the statute to market their products according to cooperative rules. To that extent, their mandated participation in an advertising program with a particular message was the logical concomitant of a valid scheme of economic regulation." ( United Foods , at p. 412, 121 S.Ct. 2334 .) The mushroom program, in contrast, did not mandate similar collectivism, and "almost all of the funds collected under the [statute's] mandatory assessments are for one purpose: generic advertising." ( Ibid . ) With "no broader regulatory system in place" concerning subjects other than speech, the court declined to uphold "compelled subsidies for speech in the context of a program where the principal object is speech itself." ( Id ., at p. 415, 121 S.Ct. 2334 .)

In unsuccessfully defending the assessment program in United Foods , supra , 533 U.S. 405 , 121 S.Ct. 2334 , the government tardily asserted that the advertising subsidized by the assessments constituted "government speech" that was insulated from the scrutiny that otherwise would adhere under the First Amendment. ( United Foods , at p. 416, 121 S.Ct. 2334 .) Because the government had not presented this argument in proceedings below, the Supreme Court declined to address it. ( Ibid . ) The court noted that the government's failure to raise the argument below deprived the plaintiffs of an opportunity "to address significant matters that might have been difficult points for the Government," such

The decision in Gerawan II , supra , 33 Cal.4th 1 , 14 Cal.Rptr.3d 14 , 90 P.3d 1179 , also acknowledged-the argument now having been properly placed before the court-the government's contention that the marketing program generated government speech. ( Id ., at p. 26, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 .) Gerawan II determined that the character of the speech could not be resolved on the pleadings, but the government would have the opportunity on remand "to prove that the speech at issue was in fact government speech." ( Id ., at p. 27, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 .) It continued, "The kind of showing the government would be required to make has been suggested by the United States Supreme Court," then referenced and quoted the brief discussion of

Johanns , at p. 561, 125 S.Ct. 2055 .) Johanns summarized, "the beef advertisements are subject to political safeguards more than adequate to set them apart from private messages. The program is authorized and the basic message prescribed by federal statute, and the specific requirements for the promotions' content are imposed by federal regulations promulgated after notice and comment. The Secretary of Agriculture, a politically accountable official, oversees the program, appoints and dismisses the key personnel, and retains absolute veto power over the advertisements' content, right down to the wording. And Congress, of course, retains oversight authority, not to mention the ability to reform the program at any time. No more is required." ( Id. , at pp. 563-564, 125 S.Ct. 2055 , fns. omitted, italics added.)

In upholding the federal beef promotion program, Johanns , supra , 544 U.S. 550 , 125 S.Ct. 2055 , rejected the contentions that the subsidized advertisements could not represent government speech because they were "funded by a targeted assessment on beef producers, rather than general

Wooley v. Maynard (1977) 430 U.S. 705 , 97 S.Ct. 1428 , 51 L.Ed.2d 752 ( Wooley ); Barnette , supra , 319 U.S. 624 , 63 S.Ct. 1178 .) Yet the court did not perceive any basis in the record for concluding that the plaintiffs' members in fact would be associated with advertisements bearing the text, "America's Beef Producers." This tagline alone, the court concluded, was not "sufficiently specific to convince a reasonable factfinder that any particular beef producer, or all beef producers, would be tarred with the content of each trademarked ad." ( Johanns , at p. 566, 125 S.Ct. 2055 .)

Act's compelled-subsidy program on First Amendment grounds. ( Id ., at p. 1230.)

government responsibility for and control over the substantive content of these communications, reflecting political accountability for their overall message. (See, e.g., Johanns , supra , 544 U.S. at pp. 560-561, 125 S.Ct. 2055 ; Gerawan II , supra , 33 Cal.4th at pp. 27-28, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 .) In some instances-such as standard communications by "a governor, a mayor, or a state tax commission" ( Keller , supra , 496 U.S. at p. 11, 110 S.Ct. 2228 )-speech may be recognized as that of the government without extended analysis. In other scenarios, such as with the speech involved in Gerawan II and Johanns , a more comprehensive inquiry may be necessary to ascertain whether the requisite degree of governmental control and, thus, political accountability exist.

Third, when addressing a challenge to a compelled-subsidy program, if such issues are appropriately raised and developed by the plaintiff the court's analysis also must consider whether the state's actions impact free speech

books, records and accounts of all of its dealings, which ... shall be open to inspection and audit by the Department of Finance ... or other state officer." ( Food & Agr. Code, § 65572, subd. (f).) These obligations all facilitate ongoing oversight of the Commission's activities, guarding against any deviation from statutory directives.

The Ketchum Act also incorporates an avenue for the Secretary to correct specific departures from the statutory message. Through the Act's appeal mechanism, the Secretary may reverse an action by the Commission if it is the subject of an appeal and she finds that it was "not substantially sustained by the record, was an abuse of discretion, or illegal." (§ 65650.5.) Were the Commission to endorse a message not authorized under the statute, or regarded as an abuse of discretion, an aggrieved party could challenge this action through an appeal. Although this case does not require us to identify the precise parameters of the Secretary's authority to reverse Commission actions, it stands to reason that speech that patently would not promote the sale of California table grapes could become the subject of a viable challenge. And regardless of whether such an appeal leads to reversal, the Secretary could be held politically accountable for the outcome. Although this review mechanism is somewhat different from the oversight responsibilities borne by the CDFA

of market participants and that the Ketchum Act grants the Commission some latitude in

development of particular articulations of the statutory message.

Plaintiffs also ask this court to read into article I, section 2 a requirement that, to qualify as government speech, subsidized communications must on their face be specifically and explicitly attributed to the government. Plaintiffs claim that such disclosures, as urged by Justice Souter in his dissent in Johanns , supra , 544 U.S. 550 , 125 S.Ct. 2055 , are necessary to ensure that reasonable observers will appreciate that the communications come from the state and can hold the government accountable for this messaging. Here, plaintiffs assert, the failure of the Commission's advertising to affirmatively disclose the state as the speaker forecloses the prospect that these communications represent government speech. But the court in Johanns rejected a categorical attribution requirement as unnecessary ( id ., at p. 564, fn. 7, 125 S.Ct. 2055 ), and plaintiffs provide no persuasive reason to adopt a different rule under article I, section 2. We agree that, when present, the fact that advertising or other communications are explicitly credited to the government may be relevant to a finding of government speech. Yet, as detailed ante , the totality of the circumstances pertinent to the generation of speech under the Ketchum Act incorporates sufficient mechanisms to ensure governmental accountability for this messaging, even without such ascription. (See Gallo Cattle , supra , 159 Cal.App.4th at p. 963, 72 Cal.Rptr.3d 1 [questioning the marginal utility of an express disclosure requirement].)

In short, the generation of speech under the Ketchum Act is attended by sufficient indicia of government responsibility and control for these communications to properly be regarded as government speech.

views expressed in these communications. (Cf. Johanns , supra , 544 U.S. at p. 565, fn. 8, 125 S.Ct. 2055 [describing the character of a compelled-speech claim]; Wooley , supra , 430 U.S. 705 , 97 S.Ct. 1428 ; Barnette , supra , 319 U.S. 624 , 63 S.Ct. 1178 .) On the contrary, the generic slogan "Grapes from California" does not convey a specific connection to plaintiffs, who are merely five of the approximately 475 producers of fresh grapes in this state.

Pursuant to the Ketchum Act ( Food & Agr. Code, § 65500 et seq. ; sometimes hereafter referred to as the Act), the

activities of the California Table Grape Commission (sometimes hereafter referred to as the Commission) are funded by assessments on shipments of California table grapes. Plaintiffs and appellants are five growers and shippers of these grapes. They contend that the collection of assessments under the Act to subsidize promotional

private speech, and apply the government speech doctrine in a manner mindful of its potential impact on protected free speech interests.

Here, the relevant circumstances establish sufficient government responsibility for and control over the messaging at issue for these communications to represent government speech that plaintiffs can be required to subsidize without implicating their rights under article I, section 2. Meanwhile, no triable issue of fact exists that the Ketchum Act violates plaintiffs' article I, section 2 rights under a different theory, such as one asserting that the statute's compelled-assessment scheme effectively prevents them from speaking. Accordingly, we hold that plaintiffs have advanced no viable claim under article I, section 2. Because the Court of Appeal rejected plaintiffs' challenge to the Ketchum Act on similar grounds, we affirm the judgment below.

more detail below, the Act created the California Table Grape Commission, a public corporation vested with the power and duty to engage in activities intended to increase consumer demand for California fresh grapes. These activities

Other findings relate the state's response to these challenging conditions, endorsing measures perceived as developing and expanding markets for California fresh grapes. These findings provide, "The[ ] [aforementioned] conditions vitally concern the health, peace, safety and general welfare of the people of this state. It is therefore necessary and expedient in the public interest to protect and enhance the reputation of California fresh grapes for human consumption in intrastate, interstate and foreign markets, and to otherwise act so to eliminate unreasonable and unnecessary economic waste of the agricultural wealth of this state" ( id ., subd. (e) ); "[t]he promotion of the sale of fresh grapes for human consumption by means of advertising, dissemination of information on the manner and means of production, and the care and effort required in the production of such grapes, the methods and care required in preparing and transporting such grapes to market, and the handling of the same in consuming markets, research respecting the health, food and dietetic value of California fresh grapes and the production, handling, transportation and marketing thereof, the dissemination of information respecting the results of such research, instruction of the wholesale and retail trade with respect to handling thereof, and the education and instruction of the general public with reference to the various varieties of California fresh grapes for human consumption, the time to use and consume each variety and the uses to which each variety should be put, the dietetic and health value thereof, all serve to increase the consumption thereof and to expand existing markets and create new markets for fresh grapes, and prevent agricultural waste, and [are] therefore in the interests of the welfare, public economy and health of the people of this state" ( § 65500, subd. (f) ); "[i]t is hereby declared to be the policy of this state to aid producers of California fresh grapes in preventing economic waste in the marketing of their commodity, to develop more efficient and equitable methods in such marketing, and to aid such producers in restoring

public corporation. (§ 65551.) Its membership consists of three producers from each of the state's six operational fresh grape growing districts (§§ 65533, 65550, 65554), as well as one "public" member not engaged in the production, shipment, or processing of fresh grapes in this state (§ 65575.1). The Legislature has determined

After the Commission's inception and initial elections, producers have been selected

improve cultural practices and product handling so that the

have included facilitating the opening of new international markets for California table grapes, funding and implementing research efforts to produce new varieties of table grapes and develop improved pest-control practices, promoting the use of table grapes among food service providers and in home cooking, collaborating with retailers to enhance the presentation and sale of fresh grapes to consumers, and developing generic advertising that promotes the consumption of California fresh grapes.

The Commission's advertising appears in print media and on radio, television, and the Internet. This advertising does not specify or endorse any one type of California fresh grape or any single producer of these grapes. Instead, it promotes California fresh grapes in general as being flavorful,

finds that the Commission's action "was not an abuse of discretion or illegal," but may reverse the Commission's action if it was "not substantially sustained by the record, was an abuse of discretion, or

This is not the first time this court has considered the relationship between article I, section 2 and the compelled subsidy of speech. Through our previous encounters with this subject, we have concluded that a standard of intermediate scrutiny applies under article I, section 2 when the government compels the subsidization of private speech. ( Gerawan II , supra , 33 Cal.4th at p. 6, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 .) We also have indicated that greater deference would be accorded to state action that subsidizes only government speech. ( Id ., at pp. 26-28, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 .) We have not yet determined for ourselves, however, whether a particular compelled-subsidy program in fact generates government speech under article I, section 2.

This case presents that issue, requiring us to decide whether speech developed and promulgated under the auspices of the Ketchum Act represents government speech. According to plaintiffs, the Commission-being overwhelmingly populated by market participants, each of whom is appointed by the Secretary from a pair of nominees proposed by growers themselves-is essentially a private entity incapable of generating government speech on its own. Plaintiffs also assert that the Ketchum Act does not otherwise ensure sufficient governmental accountability to the public regarding the messaging it contemplates for these communications to qualify as government speech. Here, plaintiffs emphasize the absence of active engagement by the CDFA in the review and approval of the Commission's promotional speech, and the fact that the Commission's advertisements are not explicitly attributed to the state. For its part, the Commission maintains that it is a state agency capable of generating government speech, even without oversight by the CDFA or other government actors. Furthermore, the Commission adds, the extent of governmental control over the messaging promulgated under the Ketchum Act also leads to a finding that these communications represent government speech.

In evaluating these positions, we begin with an overview of two principles this case calls upon us to mediate: the free speech guarantee enshrined in article I, section 2, and the government speech doctrine. We then review a series of decisions in which this and other courts have evaluated assertions that compelled-subsidy programs do not implicate constitutional free speech protections because they subsidize only government speech. Applying principles gleaned from the relevant precedent to the communications authorized by the Ketchum Act, we conclude that the promotional messaging under the Act constitutes government speech.

A. Article I, Section 2

Article I, section 2 of the California Constitution contains our state's counterpart to the free speech provision found in the First Amendment to the United States Constitution. Article I, section 2, subdivision (a) declares, "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of

normally trigger the First Amendment rules designed to protect the marketplace of ideas. [Citation.] Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect this electoral mandate. [Citation.] [¶] Were the Free Speech Clause interpreted otherwise, government would not work. How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary?" ( Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015) 576 U.S. ----, ----, 135 S.Ct. 2239 , 2245-2246, 192 L.Ed.2d 274 ( Walker ); see also Summum , at p. 468, 129 S.Ct. 1125 ["it is not easy to imagine how government could function if it lacked this freedom"].)

C. Case Law Involving Free Speech Challenges to Compelled Subsidy Programs and the Government Speech Doctrine

The right to free speech and the government speech doctrine have intersected in prior cases in which the plaintiffs have alleged that state action has unconstitutionally compelled them to subsidize viewpoints with which they disagree. In some of these matters, the defendants have responded that the plaintiffs are paying only for government speech, rather than private speech, making the challenged action lawful. The discussion below reviews how these arguments have been presented and addressed in prior decisions by this court, as well as other courts.

1. Keller

The United States Supreme Court's first extended discussion of the relationship between

However, the fee could not be extracted over the employees' objections to pay for other speech, such as "the expression of political views ... or ... the advancement of other ideological causes[,] not germane to [the union's] duties as collective-bargaining representative." ( Id ., at p. 235, 97 S.Ct. 1782 .)

The Supreme Court applied a similar analysis in

purposes of state law." ( Id ., at p. 11, 110 S.Ct. 2228 .) But, the high court continued, this determination of status, to the extent that it "entitled [the State Bar] to the treatment accorded a governor, a mayor, or a state tax commission, for instance, is not binding on us when such a determination is essential to the decision of a federal question." ( Ibid . )

Significantly, the Supreme Court in Keller , supra , 496 U.S. 1 , 110 S.Ct. 2228 , recognized that there was no broad First Amendment right not to fund speech by government officials and agencies. Chief Justice Rehnquist's opinion for the court observed that "[g]overnment officials are expected as a part of the democratic process to represent and to espouse the views of a majority of their constituents. With countless advocates outside of the government seeking to influence its policy, it would be ironic if those charged with making governmental decisions were not free to speak for themselves in the process. If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed. [Citation.]" ( Keller , at pp. 12-13, 110 S.Ct. 2228 .)

Keller , supra , 496 U.S. 1 , 110 S.Ct. 2228 , nevertheless disagreed with our application of this general principle to the State Bar. The high court explained that "the very specialized characteristics of the State Bar of

challenged compelled-subsidy programs within the agricultural sector as violating their right to free speech by forcing them to pay for generic advertising to which they object.

Initially, the government speech doctrine did not play a large role in this body of litigation, which proceeded on the assumption that these programs funded private, not government speech. The government speech doctrine was not invoked at all in Glickman v. Wileman Brothers & Elliott, Inc. (1997) 521 U.S. 457 , 117 S.Ct. 2130 , 138 L.Ed.2d 585 ( Glickman ), which rejected a First Amendment challenge to compelled assessments for advertising under marketing orders issued pursuant to the federal Agricultural Marketing Agreement Act of 1937. ( 7 U.S.C. § 601 et seq. ; see Glickman , at p. 482, fn. 2, 117 S.Ct. 2130 (dis. opn. of Souter, J.) [observing that the defendant had not argued "that the advertisements at issue represent so-called 'government speech' "].) Even without the government speech doctrine being interposed, the Glickman court upheld the assessments because the charges represented "part of a broader collective enterprise in which [the plaintiffs'] freedom to act independently is already constrained by the regulatory scheme." ( Id ., at p. 469, 117 S.Ct. 2130 ; see also id ., at pp. 473-474, 476-477, 117 S.Ct. 2130 .) The court also noted that the marketing orders did not impose any restraint on producers' freedom to communicate any message to any audience, or compel producers to engage in any actual or symbolic speech. ( Id ., at pp. 469-471, 117 S.Ct. 2130 .) To the Glickman court, the plaintiffs' challenge implicated only "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 p. 477, 117 S.Ct. 2130 .)

3. Gerawan I

The government speech doctrine was invoked, but only belatedly, in Gerawan I , supra , 24 Cal.4th 468 , 101 Cal.Rptr.2d 470 , 12 P.3d 720 . The plaintiff in Gerawan I challenged a marketing order issued by the CDFA pursuant to the California Marketing Act. ( Gerawan I , at pp. 479-480, 101 Cal.Rptr.2d 470 , 12 P.3d 720 .) This order established the California Plum Marketing Board, and required plum growers to finance generic advertising and other activities by the board through an assessment on their produce. ( Ibid . ) Comparably to the allegations here, the plaintiff in Gerawan I objected to the marketing order on the ground that it required the plaintiff "to fund commercial speech in the form of generic advertising" against its will, with the advertising reflecting " 'viewpoints' " with which the plaintiff " 'vehemently disagree[d].' " ( Id ., at p. 481, 101 Cal.Rptr.2d 470 , 12 P.3d 720 .) This directive, the plaintiff argued, violated its rights under both the First Amendment to the United States Constitution and article I, section 2 of the state Constitution. (

First Amendment claim. ( Gerawan I , at pp. 507-508, 101 Cal.Rptr.2d 470 , 12 P.3d 720 .) But with regard to article I, section 2, we determined that "article I's right to freedom of speech, without more, would not allow compelling one who engages in commercial speech to fund speech in the form of advertising that he would otherwise not, when his message is about a lawful product or service and is not otherwise false or misleading." ( Id. , at pp. 509-510, 101 Cal.Rptr.2d 470 , 12 P.3d 720 .) The plaintiff's allegations were therefore "sufficient at

as the fact that "although the Government asserts that advertising is subject to approval by the Secretary of Agriculture, respondent claims that the approval is pro forma ." ( Id ., at pp. 416-417, 121 S.Ct. 2334 .) This issue and others, the court observed, "would have to be addressed were the program to be labeled, and sustained, as government speech." ( Id ., at p. 417, 121 S.Ct. 2334 .)

5. Gerawan II

The brief discussion of government speech in United Foods , supra , 533 U.S. 405 , 121 S.Ct. 2334 , informed the analysis in Gerawan II , supra , 33 Cal.4th 1 , 14 Cal.Rptr.3d 14 , 90 P.3d 1179 . In Gerawan II , we clarified that notwithstanding the constrained view of government speech suggested in Gerawan I , supra , 24 Cal.4th 468 at page 503, footnote 8, 101 Cal.Rptr.2d 470 , 12 P.3d 720 , generic advertising produced under the auspices of an agricultural marketing order could represent government speech, and on that basis not be subject to heightened scrutiny under article I, section 2.

Among the issues that Gerawan I , supra , 24 Cal.4th 468 , 101 Cal.Rptr.2d 470 , 12 P.3d 720 , had reserved for further proceedings was the standard or test that would be used to ascertain the lawfulness of compelled funding schemes such as that contained within the California Plum Marketing Program. We addressed this subject in Gerawan II , supra , 33 Cal.4th 1 , 14 Cal.Rptr.3d 14 , 90 P.3d 1179 , which came

government speech that had appeared in United Foods . ( Gerawan II , at p. 27, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 .) After also reviewing the Supreme Court's analysis of government speech in Keller , and observing that "other courts considering the issue have found significant whether the commercial speech in question is attributed to the government or to the agricultural producers" ( Gerawan II , at p. 28, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 , citing Cochran v. Veneman (3d Cir. 2004) 359 F.3d 263 , 273-274 ), we determined, "In the present case, the marketing board is comprised of and funded by plum producers, and is in that respect similar to the State Bar. But, as United Foods suggests, the speech may nonetheless be considered government speech if in fact the message is decided upon by the Secretary or other government official pursuant to statutorily derived regulatory authority. Because there are factual questions that may be determinative of the outcome-for example, whether the Secretary's approval of the marketing board's message is in fact pro forma, whether the marketing board is in de facto control of the generic advertising program, and whether the speech is attributed to the government-this issue cannot be resolved on the pleadings and requires further factfinding." ( Gerawan II, at p. 28, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 .)

6. Johanns

Shortly after our decision in Gerawan II , supra , 33 Cal.4th 1 , 14 Cal.Rptr.3d 14 , 90 P.3d 1179 , the United States Supreme Court decided Johanns , supra , 544 U.S. 550 , 125 S.Ct. 2055 , another First Amendment challenge to a federal program that financed generic advertising for an agricultural product or products through mandatory assessments levied on producers of the commodity.

Johanns , supra , 544 U.S. 550 , 125 S.Ct. 2055 , involved the Beef Promotion and Research Act of 1985 (Beef Act), which provides for the promotion of "beef and beef

7. Post- Johanns Case Law Involving Compelled Subsidies and the Government Speech Doctrine

Since Johanns was decided, its analysis has been applied in several cases to rebuff

The Ninth Circuit in Delano Farms Co. v. California Table Grape Com'n , supra , 586 F.3d 1219 , acknowledged some differences between the regime established by the Ketchum Act and the federal beef promotion program upheld in Johanns -most notably, in the court of appeals' view, the fact that CDFA personnel do not review and approve advertisements prepared by the Commission, whereas United States Department of Agriculture officials were directly engaged with the advertising copy involved in Johanns . ( Delano Farms Co. v. California Table Grape Com'n , at p. 1229.) The court of appeals nevertheless considered these differences insufficient to invalidate the Ketchum

rights in a manner distinct from the bare fact of the subsidy requirement itself. In Johanns , supra , 544 U.S. 550 , 125 S.Ct. 2055 , for example, the court implied that a different standard of review could apply to the subsidy program if the advertisements it generated were attributed to the plaintiffs' members. ( Id ., at p. 566, 125 S.Ct. 2055 ; see also Walker , supra , 576 U.S. at p. ----, 135 S.Ct. at p. 2246 ["the Free Speech Clause itself may constrain the government's speech if, for example, the government seeks to compel private persons to convey the government's speech"]; Wooley , supra , 430 U.S. at p. 717, 97 S.Ct. 1428 ; Barnette , supra , 319 U.S. at p. 642, 63 S.Ct. 1178 .) Likewise, Gallo Cattle , supra , 159 Cal.App.4th 948 , 72 Cal.Rptr.3d 1 , and other decisions suggest that government speech might warrant heightened scrutiny if its exercise made "private speech difficult or impossible." ( Id ., at p. 966, 72 Cal.Rptr.3d 1 ; see also Miller , supra , 151 Cal.App.3d at p. 702, 198 Cal.Rptr. 877 ; NAACP v. Hunt (11th Cir. 1990) 891 F.2d 1555 , 1566 ["the government may not monopolize the 'marketplace of ideas,' thus drowning out private sources of speech"]; Warner Cable Communications, Inc. v. City of Niceville (11th Cir. 1990) 911 F.2d 634 , 638 ["the government may not speak so loudly as to make it impossible for other speakers to be heard by their audience"].)

E. Application to the Ketchum Act

Application of these principles to the Ketchum Act leads to the conclusion that promotional messaging under the statute is subject to sufficient governmental direction and control to qualify as government speech. The Legislature has developed, and endorsed the dissemination of, the central message promulgated by the Commission. This message communicates a specific view (promotion) regarding a single commodity (California fresh grapes). The articulation and broadcasting of this message has been entrusted in the first instance to market participants, but only acting through an entity, the Commission,

California fresh grapes as a general category. Consistent with these findings, the Act gives the Commission, upon becoming operational, the power and the duty "[t]o promote the sale of fresh grapes by advertising and other similar means for the purpose of maintaining and expanding present markets and creating new and larger

nonetheless provides a meaningful avenue for ensuring that the Commission's messaging remains within the parameters crafted by the Legislature.

Other provisions within the Ketchum Act also underscore the state's responsibility for and control over messaging promulgated under the statute. Among them, the Act gives the Secretary of the Department of Food and Agriculture the duty to appoint commissioners from the set of nominees for each position on the Commission. (§§ 65555, 65563, 65575.1.) Having this power, the Secretary is in a weakened position to disclaim responsibility for promotional messaging that an appointee later may approve. Furthermore, as the officer who appoints the commissioners, the Secretary also has the power to remove them from office. (See People ex rel. Atty. Gen. v. Hill (1857) 7 Cal. 97 , 102.) By statute, commissioners serve a term of years (§ 65555), which may circumscribe the Secretary's authority to remove them from office (see Gov. Code, § 1301 ["Every office, the term of which is not fixed by law, is held at the pleasure of the appointing power"]; Brown v. Superior Court (1975) 15 Cal.3d 52 , 55, 123 Cal.Rptr. 377 , 538 P.2d 1137 ; Boyd v. Pendegast (1922) 57 Cal.App. 504 , 507, 207 P. 713 ["Appointments to hold during the pleasure of the appointing power may be terminated at any time and without notice; appointments to continue 'during good behavior,' or for a fixed term of years, cannot be terminated except for cause"] ). Consistent with such a limitation, the parties have stipulated only that the Secretary may remove a commissioner "if necessary." Nevertheless, even a qualified power of removal provides another means of oversight by the Secretary, who is herself appointed by and holds office at the pleasure of the Governor. ( Food & Agr. Code, § 102.)

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. In order for the promotional material of a body like the Commission to be considered government speech under an " 'effectively controlled' " theory ( Johanns , supra , 544 U.S. at p. 560, 125 S.Ct. 2055 ), 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. In reaching the determination that the government effectively controlled the Commission's speech, we do not suggest that the specific indicia of government responsibility and control that appear here are essential to a finding of government speech in any compelled-subsidy case brought under article I, section 2. We simply conclude that, even acknowledging that the Commission is constituted primarily

articulating the viewpoint prescribed by law, the facts and law relevant to this case amply establish that the speech plaintiffs challenge is government speech.

Plaintiffs identify perceived deficiencies in the statutory scheme and its implementation that, in their view, prevent us from characterizing the subsidized communications as government speech. First, plaintiffs read the discussion of government speech in Gerawan II , supra , 33 Cal.4th at pages 27-28, 14 Cal.Rptr.3d 14 , 90 P.3d 1179 , as committing this court to the position that the Secretary or her staff must

Plaintiffs advance a similarly flawed interpretation of Johanns , supra , 544 U.S. 550 , 125 S.Ct. 2055 . There, the facts pertinent to a finding of government speech included the Secretary of Agriculture's review and approval of "every word" of the promotional materials at issue. ( Id ., at p. 561, 125 S.Ct. 2055 .) But Johanns did not cast review and approval by an appointed executive officer or his or her staff as an absolute prerequisite for communications to represent government speech, regardless of other pertinent circumstances. (See Paramount Land , supra , 491 F.3d at p. 1011 [" Johanns did not set a floor or define minimum requirements" for application of the government speech doctrine].) Quite the opposite is true: the Johanns court regarded the political safeguards involved with the Beef Act as "more than adequate" to distinguish the challenged advertisements from private speech. ( Johanns , at p. 563, 125 S.Ct. 2055 .) Likewise here, our review of the totality of the relevant circumstances establishes that the government has sufficient responsibility for and control over the Commission's

F. Consequences of Classification as Government Speech

Having determined that promotional messaging under the Ketchum Act represents government speech, it remains to consider the consequences of this designation.

The court in Johanns , supra , 544 U.S. 550 , 125 S.Ct. 2055 , described government speech as "exempt" from scrutiny under the First Amendment. ( Johanns , at p. 553, 125 S.Ct. 2055 .) Consistent with this view, and given the absence of a viable compelled-speech claim in that case, the Johanns court regarded its conclusion that the Beef Act subsidized only government speech as dispositive of the First Amendment claim before it.

We conclude that a similar result holds under article I, section 2. By itself, a state directive to pay taxes or fees to fund only government speech does not implicate, let alone infringe upon, protected free speech rights. As the court in Johanns , supra , 544 U.S. 550 , 125 S.Ct. 2055 , observed, " 'Compelled support of government'-even those programs of government one does not approve-is of course perfectly constitutional, as every taxpayer must attest" ( id ., at p. 559, 125 S.Ct. 2055 ), meaning that subsidized government speech is "not susceptible to First Amendment challenge" on the bare ground that the subsidy requirement, by itself, violates the plaintiff's right to free speech ( id ., at p. 560, 125 S.Ct. 2055 ).

Of course, a determination that state action generates only government speech does not, by itself, necessarily address all of its possible constitutional implications. If the Ketchum Act's compelled-subsidy provisions did more than merely direct plaintiffs to fund government speech, additional