Sunday, January 02, 2000

Mushrooms put Constitution to test


BENCHMARKS

BY BEN L. KAUFMAN
The Cincinnati Enquirer

        The First Amendment offers political speech the highest level of protection from government interference, but commercial speech is afforded something less. That's true whether the speaker is being silenced or forced to speak or publish.

        With that in mind, the 6th Circuit recently asked how far the federal government may go in compelling someone's commercial speech.

        Everyone agreed on the facts. The U.S. Department of Agriculture requires mushroom producers to contribute to an industry-wide advertising fund authorized by the 1990 Mushroom Promotion, Research and Consumer Information Act.

        Resulting mushroom advertising is generic and nonpolitical; individual producers may advertise their products separately. United Foods Inc. of Tennessee refused to contribute to the advertising fund created by the USDA-sponsored Mushroom Council. USDA insisted, and the company sued.

        U.S. District Judge James D. Todd in Jackson sided with USDA. He cited a 1997 Supreme Court decision upholding a similar, compulsory advertising fund for growers of California peaches, plums and nectarines.

        California growers are subject to the 1937 Agricultural Marketing Agreement Act. It promotes a uniform price for all producers, collective rather than competitive marketing, and an exemption from antitrust laws to avoid unreasonable fluctuations in supply and price. In judicial shorthand, “collectivization.”

        Within that context, a common, compulsory advertising fund for those California fruit growers made sense, lest free riders accept the benefits without paying their share.

        None of that is true for mushroom producers, appellate Judges Gilbert S. Merritt, Eric L. Clay and Ann Aldrich said in a decision overturning USDA's victory.

        Without extensive mushroom regulation, the court said, there is no prospect of free riders, and USDA efforts to compel payments for adver tising “is invalid under the First Amendment. ... The portions of the Mushroom Act of 1990 which authorize such coerced payments for advertising are likewise unconstitutional.”

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        A $172,856 negligence verdict against Wal-Mart Stores was upheld by Judges Boyce F. Martin Jr., Martha Craig Daughtrey and David A. Katz after they refused to strike testimony by the victim's key witness.

        Rebecca S. Brown said an aerosol can fell from a shelf in the Pikeville, Ky., Wal-Mart and injured her right eye in 1994.

        Keith Rosenblum, a retail store safety expert, testified Wal-Mart shelving practices did not meet an industry safety standard: Placing lighter items on lower shelves and heavier items above created an unstable environment. Further, he said, a lack of fencing or other barriers on overhead shelves created an unreasonably dangerous condition for customers because unboxed items could fall.

        He attributed Ms. Brown's injury to that lack of fencing.

        Invoking a Supreme Court decision that requires trial judges to bar “junk science” parading as expert testimony, Wal-Mart appealed.

        Wal-Mart said Mr. Rosenblum first visited the Pikeville store 30 months after the accident. Wal-Mart said he lacked information about shelving configurations or activity in the adjacent aisles and didn't know whether cans were in original containers that day.

        Without such data, Wal-Mart said, his conclusions were worthless.

        “We disagree,” the 6th Circuit said. “Wal-Mart's policy was not to shelve its merchandise in the manufacturer's original boxes in accordance with safety guidelines but to set them out on open shelves without a barrier to prevent them from falling to the floor. This was an important omission by Wal-Mart in its safety policies.

        “Though it would take some act, like a "bump' or "knock' from an adjacent aisle, to cause the merchandise to fall, this act would not be the only cause of the items falling to the ground.”

        The Supreme Court loathes junk science, but it allows experts “wide latitude to offer opinions” that need not be based on firsthand knowledge, the 6th Circuit said. “Rosenblum's opinion as to what caused the aerosol can to fall on Brown was based on an adequate foundation of expertise, documentation and personal experience.”

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        Guards who searched Lawtis Donald Rhoden's cell at Tennessee's Turney Center Prison in 1995 confiscated seven copies of a pamphlet from the Aryan Nations/Church of Jesus Christ Christian.

        Prison officials said the pamphlets were racially inflammatory and could lead to violence. Mr. Rhoden was put in solitary for possession of “security threat group materials” and then placed on maximum security status.

        He sued, saying officials violated his right to religious literature. The federal judge ruled against him without seeing the pamphlets; they all had been destroyed.

        In his appeal, Mr. Rhoden asked for a new trial because he had new evidence — a copy of the pamphlet. He said it would refute official accusations and justify another chance to prove guards violated his rights.

        Judges Damon Keith, LeRoy J. Contie Jr. and Alan E. Norris said he was not entitled to a new trial because he could have obtained a copy earlier by exercising “due diligence.”

       



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