Raisin Cain: Growers in Calif. Take Ad Fight to High Court

If you've ever dared to eat a peach, especially one from California, part of the reason may be due to a fruit growers ad. You know, the people who brought us those California "dancing raisins" a few years ago that strutted in sunglasses to the tune of "Heard it Through the Grapevine."

Yet the Supreme Court could put the famous raisins out of business. In a $1-billion case testing the limits of commercial free speech being argued today, the high court will hear whether a consortium of dissident peach, plum, and nectarine growers in California is required to pay for generic advertising of their wares.

Under a law dating back to the Grapes of Wrath era, the federal government mandates that certain agricultural products be promoted as a way of generating consumer interest. The ads are paid for by the growers themselves.

While many producers benefit from the commercials, others believe they are misleading and even hurt business. Thus they are questioning the government's right to require the ads, and, in a novel twist, argue that the Constitution protects their right not to speak.

The case, Glickman vs. Wileman, will affect millions of dollars in ads and could alter current ad campaigns like the familiar "Drink Milk" and "Eat Beef" programs.

Indeed, constitutional scholar David Cole of Georgetown University feels the case is intriguing since the growers are arguing their right not to speak using the First Amendment. He does point out, however, that "we all pay taxes that eventually get used to promote causes that may not promote our own immediate interests."

The case is just the first in a two-week period packed with socially and legally significant arguments in one of the most compelling high-court terms in recent years.

Tomorrow, for example, the court looks to the question of whether the Brady handgun bill, a central part of the administration's crime package, is constitutional. The bill, passed by Congress last term, requires a five-day waiting period before a buyer can purchase a gun. The main issue before the court is the vexing contemporary problem of federalism - whether, in this case, the federal government can require local law enforcement to screen and deny those who want to purchase a gun immediately, if the local official does not want to, either for financial or reasons of conscience.

On Wednesday comes another free-speech case, this one determining whether an Arizona "English only" law is constitutional. The court must first decide whether a group that sponsored a successful statewide referendum in 1988 requiring all state employees to speak only English on the job has legal standing. If so, the court will undertake a controversial ruling that will touch English only laws in 20 states and a variety of bills before Congress.

Next week brings disputes on voting laws and the creation of racial voting districts. The nine justices also take on a controversial Kansas law requiring convicted sexual predators to remain incarcerated even after their prison terms have ended.

Today's case arose when 16 handlers of California peaches, plums, and nectarines decided they should not be compelled to contribute some 18 to 20 cents a box of fruit to pay for ads they often disagree with. The case pits the US Secretary of Agriculture's policy of mandated advertising for certain California commodities against the dissident fruit handlers, who say the government's generic ads lumping all fruit into a single category often undercut the special qualities of the fruit they deal with.

They point out, for example, that California ads promoting red nectarines, particularly "Red Jims," equate the redness of a nectarine with sweetness. Yet these fruit handlers offer evidence that yellow nectarines, which some of them produce, are equally if not more sweet. In a related case, white-raisin growers object to paying for "dancing raisin" ads that feature only dark raisins.

The fruits case had been ripening in lower courts since 1988. Then, last year, the Ninth Circuit bench decided the fruit handlers were right. The court based its decision on a similar 1993 ruling for California almond growers - in essence saying that fruits and nuts fall under a category of similar protection as far as free speech is concerned, and that fruit handlers should be allowed to finance their own ads.

Secretary of Agriculture Daniel Glickman says the Ninth Circuit has misconstrued the issues. He argues no First Amendment issues arise since speech is not being restricted, but rather promoted. Moreover, fruit growers are compelled to join in fraternal agreements that govern the good of the whole, just as lawyers and other professionals and members of trade unions are.

Similar challenges are pending in courts across California by representatives of cut flowers, apples, grapes, and kiwi fruit. Not all states have been given the special help Washington proferred during depressed agricultural times before and after World War II. The help extends to California producers of dates, onions, and celery - though not to many other foods.