the case and likely violated the first amendment that conclusion is wrong and before i address them i think i want to point out that the other problem in area injunction factors in this case do not remotely justify the extraordinary interim order the court entered into this case an order that disrupts rather than maintains the status quo an order that impairs a successful and important state program an order that ironically reduces the amount of speech that is disseminated to the public and that threatens to unleash the very free rider problem that that to cause the legislature to create the commission in the first place now as to the merits i want to point out to draw the court's attention to something that occurred in the district court after the court entered the preliminary injunction the district court has entered an order or earlier this year proceedings on these claims awaiting what the court called guidance from the ninth circuit and for that new court did so because and i'm quoting from page thirteen of the march twenty first order stating further proceedings the court said quote given the unsettled nature of the law the court cannot agree with paramount's assertion that quote the ninth circuit is almost certain to approve this  speech activities from first amendment scrutiny at all and then after the court found that the first amendment was implicated in this case in declining to engage in any balancing of the interest injunction should be reversed for three independent reasons first the speech in question qualifies as the government speech not private speech because the california legislature has both defined the message that the commission is to deliver and has made the commission quote and i'm quoting from the supreme court's decision in joe hands fully answerable to a politically accountable official for its delivery of that message because the statute the pistachio act grants the secretary of food and agriculture plenary authority to order the commission to correct or cease a speech that he or she believes is not consistent with the public interest and the statute also requires that the commission planned activities all of its promotional activities be reviewed and approved in advanced by the secretary of food and agriculture and statutory requirement that did not exist with respect to the be in joe hands the district court's ruling that this p d f they must to specifically approve the actual ads as opposed to the message that the ad will deliver in johanne it with the supreme court found although it said that this was more than adequate in order to establish that the speech was the government's speech the supreme court in general hands to use the fact that some employee of the secretary of agriculture was reviewing the words in order to demonstrate that the secretary was an exercise in quote affective control what the supreme court said in johannes was that quote the message of the promotional campaign is affectively controlled by the government and before it got to the review word by word review it said look that means is that the government has quote  overarching message and some of its elements and left the development of the remaining details to an entity whose members are answerable to the secretary and then it said in addition and it goes on to talk about the review now in that caved there was no statutory or regulatory requirement that the secretary or the secretary delegate actually review the ad copy what the statute the statute didn't have any requirement about that all the regulations that govern the before it required only that the board quote submit to the secretary for approval any plans or projects here there is a statutory requirement that before the commission can engage in any of the challenge activities the secretary of food and agriculture must in advance to concur in and the statutory quote statutory scheme for facial challenge and presumably how it's applied in an as applied challenge whether the legislature has set out the overarching message and there's no dispute about that and whether in the supreme court's words effective control over that message is satisfied because the details of the message are by somebody who is answerable to a politically accountable official and the task that we are proposing not proposing we think what the supreme court meant in johannes was you look to determine whether the speech is private or the speech is governmental you look at the statutory scheme you look at the regulations that implement that scheme and you determine whether or not this is an instance in which to quote vallance was the government has used private speakers to transmit specific information pertaining to its own programs now paramount disavows the any and he claimed that what is required is a review of the actual ad in order to satisfy the requisite degree of control but it doesn't explain what the test would be if it is something other than looking at what comments argument it would be that even if it were to accept your premises to the statutory structure that you don't have affective control in the act because of the execution of the statute and how it has carried out in practice well my question is one do you think that's a distinction that is supported by the law but now i've been told that that is not the man's name doing what the law requires be done in order to establish effective control if the answer is no that's why political speech is subject to controls and democratic accountability if secretary  secretary of food and agriculture should be doing more or if ads are coming out that are inconsistent with the message or that members of the public think are not consistent with the public interest political pressure can be brought to bear on the secretary what's particularly interesting in this case is there is no can to there was there's no question that the secretary approved in writing the very message the very aspects of the message that paramount complains about i'll explain that in a minute i just said something that follows up on that on the record we really do have the approval of the commission's advertising plan and then we see how it played out in all of these various advertisements with jane seymour documents that are being used in various magazines is there anybody at the department of agriculture is actually even looking  them let me tell you what the record shows right about this and but before i do so but i know i'll forget this just point out that the if the if that's if the secretary is required to effectively oversee this program and doesn't because he or she is only reviewing every other ad or going to every other meeting or reviewing you know the ads that are run domestically but not the ones that are run you know in europe it's first of all the constitution cannot it cannot rest on the management style of a government official there either is or is not a record there is or is not a system in place in which the person who is the private interests that is directed to deliver the government's message is quote answerable and that exists in this case but we do have more judge wardlaw if the court if it has been for has in front of it either the excerpts of record actually sometimes before anything can move forward it's the indented paragraph on our page twelve here is what the secretary was told this is after the proposed marketing plan after the marketing committee after the commission this is what the secretary has to approve in order for it to go forward he is told quote with the continuing emphasis on women and heart disease awareness and how california  be an important part of a heart healthy diet this year's advertising campaign will feature three generations of jane seymour's family her mother daughter and herself clearly making the connection that heart disease is not discriminator of age in that california pistachios can be an important part of life time heart health now in this case paramount has articulated two objections to the speech of the commission one that it promotes generic rather than brand name pistachios and two that it has to emphasis on jane seymour and not enough  themselves both of those points are articulated very clearly and very straightforwardly in the passage i just read you and the secretary approved and the secretary the secretary  representative to the commission meeting concluding the commission meeting in which this plan is distilled from the proposed plan that the secretary receives in the spring to the marketing committee meeting where adjustments are adjustments are made and get a copy of the annual report judge war law that has certainly all of the representative ads that are made and what's significant in terms of finding fault with in practice what the secretary is not doing paramount has not once not even wants to exercise its right under the statute to go to the secretary and either file a grievance or a complaint or a letter and say the commission is running ads that are not consistent with the message that the state of california has charged the commission with delivering there's been no complaint whatsoever that that ads that we're running are not in fact consistent with in advancing this the legislature's articulated message and in fact as i said even now in litigation the only two objections to the message that were addressed were specifically approved by the politically accountable official in this case and therefore of since paramount is saying well the secretary when i think the secretary has to actually review the relevant words and what we're saying as you look you determine whether or not this speech is the government by whether looking at the statute and whether it specifies the message and includes controls the question for paramount is what on earth is the test if this paragraph that i just read is not enough and does it make sense to have a test that is going to embroil this court just taking california and the district courts here in years and years of fact based litigation over whether the degree of control is or isn't enough and how often does the secretary's representative do this that or the other thing and whether something goes in and out of becoming government speech or private speech because of what an employee of a politically accountable official does or doesn't do in exercising his or her statutory oversight responsibility if you move beyond the advertising promotional portion of the speech there's also a complaint about the lobbyist and i it's hard for me to understand if it's a complaint that he does his job at all or how he does his job then that whether it is a substantive disagreement like the ad copy or is it just that he exists to lobby on behalf of international trade barriers and things like that he is my question is whether that form of speech and political activity is analyzed should be analyzed in separate out from the promotional activity and looked at separately well i think it should be looked at separately because it's a different activity but it seems to me that if anything the case is stronger o this day even in this court that is the only objection that paramount has made to the employee that to that to the agents of the commission who represent it before the international trade otherwise they're complaining that they don't think he's doing a good enough job not that he's doing the job of lobbying or representing the commission in general that's right and that maybe they could have no possible objection to the fact that he's doing the job because if the court we've reprinted the relevant copies of the food and agriculture code in our in our in the appendix to our blue brief but with respect to first on page eighty two with the very top with respect to the missions and councils generally the very top of page essay to one of the one of the missions of the commission is to be a limitation of tariff and nontariff trade barriers and then passing down to h participation with state and federal agencies and negotiating with other governments relating to market access issues and then if the court five one k which is a third of the way down the page on an essay eleven one of the specific directions to the commission is to quote present facts to and negotiate state federal and foreign agencies on matters that affect the marketing of pistachios so the commission is doing what it is required not only authorized but required to do it seventeen reviews of the department of commerce and the international trade commission and in any event it isn't a first amendment objection to complain about the soap suppose it ineffectiveness of the commission's advocates i just you know if if i'm still puzzling but i'm still focused on judge awards was a question about actual control here if the test really were if the constitution really did depend on management style what would let's leave the ads aside what would these representatives in washington have to do in order to be government speakers  keep calling back to the secretary and saying well the trade commission is asking this now can i say that what about the marketing representatives which the commission used to employ before this preliminary injunction went into effect that went to supermarkets and wholesalers and advocated for more shelf space for pistachios the commissions required to do that by the statute they can keep calling up somebody in the department of food and agriculture and say well can i say this or can i say that it's the the facet of this being government speech is that so long as they are speaking consistent with the message that the california legislature has directed them to deliver and so long as there is a politically accountable official who has the power to ensure that they do that the fact that they haven't conducted these types of audit's or as many as paramount thinks they should is just like saying that it is just basically same thing as the police are not doing a good enough job monitoring because he's never been arrested or he's never been prosecuted and i would like to say in my own defense that that reflects that i'm generally a law abiding citizen but the that i just think that that whatever  it's for oversight that paramount is advocating here we know it's not word by word and they say it has to be something more than the statute has a not been articulated in b is going to launch federal courts in two years long litigation over whether the speech is or isn't affectively the speech of the government and here you know corrector cease order when the secretary can direct the commission to correct or seize anything that the step or terry determines is not in the public interest no explanation at all if the if the commission declined to do so the secretary has yet another authority that the beef board that the secretary of agriculture didn't have in the beef board case which is the secretary of food and agriculture can totally suspend any or all activities of the commission which the legislature has said will there after be without legal effect those are what are sort of the are those are necessary and sufficient to show effective control in this case  is there were dissenting justices in joe hands that said this is not the speech of the government and i think principally what was what justice souter's dissenting opinion is number one there is insufficient africa the people who see these ads don't know that this is the government i mean he he is he's speaking for i think one or two other justices the supreme court has held that there was sufficient after abusing and here there's been no complaint about after  attribution issue in this case justice souter's dissent also sad book i mean it's no wonder that the secretary is reviewing each of these ads but how can this be government speech when the when the food and drug administration and the department of my camera which department it is is actually sponsoring public programs telling people to eat less be and therefore i justice souter am perplexed as to how this could be considered the speech of the government now the majority holding quite clearly is that it is and we think that this case is not only consistent with joe hands but this case is much stronger than if the controls are more effective than in johan for which this speech is ancillary urge or main in other words whether it satisfies glickman in glickman the supreme court said because the industry has already chosen to collectivize itself for economic reasons  significant ways and because the speech the computer stephanus for speech furthers the same general goals of collectivization there is no independent first amendment passed that's placed on that speech and we think the same is true here and i the only point of difference i think we have with judge morrow is the genuinely open question over whether in determining the degree of collectivization you can look at authority that are derived both from federal and state law we think that since glickman and wildman brothers clearly requires that you look from at the entire regulatory scheme as this court said in galloway land and because this industry had these very same to dashiell growers and hands or whatever it's called the c c peace position boils down i think that something like this they say well the government set the overall message there that they claim that the beef board was answerable to a politically accountable official which it certainly was and they say that's all we need here we submit that neither of those single word which the court emphasized more than once but the question i have is that they said that because that was the fact of the case so obviously they're setting out the facts but  is that a necessary condition to what the court terms you know whether the message was effectively controlled so it would help me to see why you  it was important why did they say it repeatedly maybe they would have said it once because it was certainly a factor but they said it repeatedly and in fact my recollection is they i tell us si did examine every word before it went out and therefore you could say that the government was truly speaking but that but the court put out a much more general standard it said effective control so the real question is is how much less than that it's also effective control and here we've got the approval of that that jets and we have the annual report and we you know the government  not the government saying this is our speech if you look at that in a vacuum in other words if you want to look at the whole statutory scheme and you have a situation here where if the commission i advertising is doing something untoward or not in the public interest or the language isn't appropriate then the commission can jump in and correct and the secretary i mean can jump in well in theory w according to the c p c what it's doing is being reviewed passed on and approved by the secretary how is it that in twenty five years the secretary has never changed and then never rejected a never changed a marketing plan never rejected one it's goldilocks they got it just right every time for twenty five years well that's another that but that's an argument that ok that's convert that to a legal argument that maybe is not goldilocks so your argument then converting it to a legal argument is that the absence of any intervention must mean that despite statutory authorization that there isn't effective control would that be the legal argument yesterday and it's pro forma it's written on a piece of paper but why then you don't do anything but if you have made there was no reason to do anything so that's what i said well you're giving that reason because you have objected to some aspects of the portrayal of mr seymour and other aspects of the ad campaign but isn't part of the system that's built into the system that you can find you know well two things one you can get rid of the whole thing if there's enough votes and there's a there's this periodic referendum that's one one back up but the other part of it is you can file a grievance and you can say this and cappy stinks and you should step in and do something about it because it's not effective for this market or our clients but you've never done that not you but the client's one ever done that correct well our clients voted against but they haven't filed grievances if that's what you're talking about your honor with the secretary but we have no obligation to do that that's an argument that we have to go exhausted min remedies or something we object to the whole scheme we object when my clients object to having to pay money to fund speech that they disagree with and we don't like any of what they're saying it's not that we say ad number thirteen second line we don't like that we don't like the way that you do it we don't like the whole scheme you're so you're just claiming any particular challenge to dislike what i'm asking you want one way or the other is that i know you don't like any of that but are you also claiming that there are specific aspects of it that your clients object for they send their marketing representatives to people we use we sell to food lion and told them things that weren't true about pricing we don't like the whole way they represent pricing don't like the whole way they represent supply we don't like generic advertising there are all sorts of things that like that but the bottom line then is whether what they are doing is effectively controlled by the government i mean if you don't like those things what you have it's not really an exhaust it's partly an exhaustion argument i don't think that's relevant here that the relevant seems to me to be that as part of the scheme that there is a relationship between what the secretary can do to take action and the people who have to make the coerced payments right but what they're saying is we're obliged to go down that road i say we're not obliged to we are authorized to go to federal court and challenge the whole fundamental scheme him we ask you questions different kind of question if let's say we reject the argument that it's government speech and we are talking about compelled disagreement based on some political statement or ideological statement or something that actually is it is in the marketplace of ideas and has something to do with core first amendment rights absolutely not united to speech that is only commercial and or the only objection is by the plaintiffs we don't like generic advertising so there's no requirement that we have some ideological objection to it united foods went on to say some beyond the government speech issue i mean if you don't get the on the government speech issue then you don't go to united for correct i understand ok so let's say we disagree but with the special commission on government speech and then we're now we're back into the soup in terms what is the proper analysis if we go to a nine and foods and we take it at face value and say well the mushroom commission is basically like and the pistachio commission it's it advertising do you still need to look at what standard to review it and do you still need to on a preliminary injunction way the other factors  so if you agree that there's a first amendment violation here then we have established a referee ball injury there's nothing that the commission offers to weigh against that constitutional violation other than to say it would like to continue doing it and that's not a justification for rejecting the district court's decision like this week we've been talking about united foods and glickman as if we were to equate the mushroom commission and this national commission and i would appreciate your comments on this later issued marketing order and whether we consider this interplay between th ation is what is california's policy because we are challenging california statute and california is commission california its policy is advertising there's a little bit of research but for all practical purposes ninety percent of the money here is spent on advertising that is california's stated position stated by the legislature and that's what the c p c does and that is what the c p c has done for twenty five years without california changing the policy and saying oh no we want collectivization the california policy for twenty five years has been advertising that's what the c p c does now a year or so what about the lobbying with respect to international trade barriers yes there's a little bit of that it's not a huge chunk of the money that's being spent here well as i don't know that but that raises the question as to whether the benchmark for this kind of analysis is the statutory structure or the execution of that structure but i think it's vital first you have to look at the structure and say if this is the structure is it constitutional that is on its face is a constitution second you have to look and see how  what do they do you can have all the powers in the world and never exercise them and that's pro forma control it's not effective control it's required by john well let's take the internet  practical sense that you know one lobbyist no matter how expensive or a handful a lobbyist still are going to cost you what it is to do extensive advertising so the fact that you spend a little bit of time and money on one aspect of your mission and a lot on the other why does that change the constitutional announcement because the question we're dealing with here he's the collectivize ation question bit on research none of those amount to collectivize ation of the california pistachio industry let me go backwards a little bit to johan's because it just raises the same issue of structure versus application of the structure  do you have any authority you can point us to where we would be looking at how the secretary actually employ man's his or her authority as a basis for determining whether or not we would see if this is a government speech as opposed to simply looking at the structure the authority and the statutory and regulatory framework and i think there's anything that squarely controlling on that if you look at john's itself it talks about the difference between pro forma authority and states the task as being affective control and then when it goes through  discusses what effective control it is it's getting down in the trenches sending your representatives in there working with them to massage change and so on the message to make sure the government that speaking in there the government appoint all these people almost all of them and had the power to remove all of them so that federal secretary the president of the commission he otherwise appoints no one except one public member out at night and he has no authority to remove any commissioner on the pistachio commission now the c p c makes a lot and says well he can correct and he can tell people to cease doing something that we submit is far too blunt to be forcing all the government has to do the secretary there say here's my order and it's not all invoice that doesn't stop the c p c from putting out an ad if they want to stop the c p c from putting out an ad or force them to change it they've got to go to existence for twenty five years and that there's never been and he kind of can't control exercise or any of these areas is it's as back in developed in the record yes so it's so that it's a green control is just how much less of what occurred in joe hands would could also be effective control and so i have a little level of uncomfort discomfort  that when i don't know if this had all the relevant facts rather potentially relevant facts to making a determination of what less than joe hands can be effective control  been thoroughly developed in this case when it's on it's preliminary injunction probably posture certainly your honor but i would say two things to that one is there is an extensive record here and the kind of information we're talking about the c b c would surely know if it ever happened that is this is not what we're saying all this person over here has nothing to do with it he said this and so that's a control if the c p c had a shred of difficulty that your argument presents let's say that they came in and i thought i thing with two examples and they said we don't like the tenor of the ad so change this in this words or change so now it comes to the ninth circuit and we're here and we say oh well you know i don't like that's a liberty and they want to change a couple of words if it seems to me that the fact that they did that you of course would be back here and you would be arguing well the fact that they stepped in a couple of times in twenty five years is kind of irrelevant and so we're on the slippery slope of monitoring the monitor if you will and that from the standpoint of trying to come to a constitutional resolution as you know gives me trouble so where is it if on this continuum that you would have a strong a line your honor there's no doubt provided as if it hasn't been a basis in the record of why things should have rejected well that's what i said is the goldilocks argument this is the perfect government agency for twenty five years never has done anything that probably six ways to sunday you can do that you might disagree with this is too generic and you that these positions are green and we like the ones that aren't green in the pictures and but for a secretary to step in and say well i think that's the kind of thing i should get involved in and halt the fact that he hasn't done so doesn't suggest that he doesn't have the authority to do so i think it does because i think it suggests that these things they talk about like the correct and c sort are simply aren't workable you know addition the secretary doesn't have the information to make these decisions he doesn't get the yeah that's this is completely unlike johnson where the representatives of the secretary where down there in the trenches rewriting the ads with the b ford and it's operating committee you have to realize that this has to be the government saying this is what the government says it is not the government saying oh you guys go over here and do something and you know kind of generally let me know what's going on occasionally and knowledge you know if anything upsets me provide the advertise so as just to make clear then you would have us invoke a rule that oversight over the message is not so fish and you need to have and  an approval to the government is because you have to know what the ads are you have to have real meaningful power to control the ads and you have to use and that's the rule that we've argued for that's what we think john says because that gets back to what i think the fundamental basis here is this is the government speaking this is a narrow exception to the first amendment because it allows the government to take a private group pay money to say anything and if it's going to do that it's got to be the government speaking and that means the government has to have affected control has to know what's going on it has to get in there have the real power as john's to get rid of people if it wants to get rid of them and really control things if you sit on the before the operating committee and you know you got appointed by the secretary and you know the secretary can remove you and you know that the secretary's representatives sit there in those meetings and work on the ads with you and tell you what they want what do you do you do with the secretary what so how has your client's been numbers at this commission what we voted against the plans for three years in a row right while your representative was the director of marketing when he was the head of the committee we had three representatives on the committee the committee operated by a supermajority of sixty votes and we three people voted against that for at least the last three years we lost every time a member of the methods during that period of time was it the same heart healthy i don't i don't know other than  we don't want somebody reaching in our pocket taking our money and paying for a message that we disagree with we want to take that money and pay for our message that's what this is all about when you cut through it it's the guy that it's the c b c here saying you've got  frawley had signed a report on behalf of the marketing committee saying this is a wonderful program and she said therefore i'm not going to do anything about the pass we need if this goes individually say i'm not going to follow what the majority of the commission or the committee has decided just because i personally disagree with it but he voted against it what else was he supposed to do he has to quit and say i quit being the chairman rebuttal a question was asked about whether or not there's you know pre review or pre review of these ads is required in some for more than what we have here if you look at the other government speech cases rus sullivan santa fe the school prayer case not only was there no advance review of what the doctors in russia were saying or what the school chaplain in santa fe independent high school were saying they didn't even have the message there was no review in advance but the court the supreme court found that it was government speech because the government to quote velux questions had quote used private speakers to transmit specific information pertaining to its own programs in terms of whether there is post hoc follow up to see whether the ads comply with what the secretary signs off on they have never in this case cited a specific instance in which there was inadequate follow up in which they didn't read the ad copy that is printed for them in the annual reports and the notion that in twenty five years the secretary has never said blue about one ad how do you explain the fact that in all the years that paramount and others have participated in this program nobody has ever objected either to a specific ad or the general message and three days after saying that there is no effective control in this case after they filed their brief in this court they filed a letter with the secretary complaining not about agnes's it's this part of the record in this case it's not it's not a part of them that we would not be able to consider  terms of whether there is oversight in terms of that the meetings that the secretary's representatives attend paramount put in the record in this case and actually included in its supplemental excerpts of record  page twenty six of the supplemental excerpts of record a commission meeting this is very best evidence the commission meeting is in large part presided over by the secretary's represent and the public members the member that is appointed by the secretary of the minutes show quote dr and i'm quoting from the middle of page s e r twenty six dr sir slate and the public representative stated she is an advocate of more marketing as a raisin grower she noted that she experienced what could happen if one powerhouse takes over an industry thousands of dollars are lost land value decrease she shared her opinion that the pista industry is going down the same path by cutting programs and assessments rates while crops increased foundational marketing is essential in her opinion to allow individual processors to go out