No. F031142

In the Court of Appeal of the State of California

Fifth Appellate District

(Super. Ct. No. 94-167877)

APPEAL from a judgment of the Superior Court of Tulare County. Howard R. Broadman and Patrick J. O' Hara, Judges.[FOOTNOTE *]

COUNSEL

 Brian C. Leighton for Plaintiff and Appellant.

 Bill Lockyer, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Charles W. Getz IV, Assistant Attorney General, Edna Walz and Tracy L. Winsor, Deputy Attorneys General, for Defendants and Respondents.

Filed June 8, 1999

 This is an appeal from a judgment on the pleadings rejecting appellant' s attempt to enjoin as unconstitutional the administrative order that established the Plum Marketing Board of California. We affirm the judgment.

Facts and Procedural History

A. Statutory History

 The agriculture industry, of course, produces necessary products for human consumption. Farmers and ranchers were important factors both in our new nation and as the United States expanded to the west. (Padberg & Hall, The Economic Rationale for Marketing Orders (1995) 5 San Joaquin Ag. L.Rev. 73, 73-75.) Even now, one source reports the agriculture industry employs a fourth of the American workforce in one way or another. (Looney, The Changing Focus of Government Regulation of Agriculture in the United States (Spring 1993) 44 Mercer L.Rev. 763, 763-765.) Because of its health, sociopolitical and economic impact on society, the agriculture industry has been the subject of regulatory and protective legislation since the earliest days of our nation. (Ibid.) Legislative attempts to regulate certain aspects of agricultural marketing-though sometimes struck down by the courts (see, e.g., Matter of Application of Foley (1916) 172 Cal. 744 [labeling requirement for imported eggs]; Ex Parte Hayden (1905) 147 Cal. 649 [labeling requirements for fresh and dried fruit])-were increasingly common in the early part of this century. (Looney, supra, 44 Mercer L.Rev. at p. 765.)

 The direct economic regulation of agricultural production involved in the present case was a later development, precipitated by the economic crisis of the Great Depression. As an early part of the New Deal, Congress enacted the Agricultural Adjustment Act of 1933. (Act of May 12, 1933, ch. 25, 48 Stat. 31.) This law authorized the Secretary of Agriculture to implement a series of price supports for key commodities, funded by an assessment on first-level processors of the commodities. The United States Supreme Court held the act unconstitutional in United States v. Butler (1936) 297 U.S. 1; even so, the court' s decision impliedly recognized the broad scope of the states' police power to impose such a program of price supports. (Id. at p. 68; see Warehouse Co. v. Tobacco Growers (1928) 276 U.S. 71; see generally Munn v. Illinois (1876) 94 U.S. 113, 125-130 [state police-power regulation of pricing in industries "affected with a public interest" ].) Thus, the decision was based on the limitations of federal power: "The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government." (United States v. Butler, supra, 297 U.S. at p. 68.)

 As the New Deal moved forward, Congress enacted the Agricultural Marketing Agreement Act of 1937. (Act of June 3, 1937, 50 Stat. 246 (hereafter AMAA).) The AMAA provides for voluntary marketing agreements for all commodities and mandatory marketing orders for milk and other specified commodities. The United States Supreme Court upheld the AMAA in U. S. v. Rock Royal Co-op. (1939) 307 U.S. 533. The court held that the act was within the general police power and that Congress had the power to act under the commerce clause of the United States Constitution. (Id. at p. 571.)

 The State of California adopted a similar statutory mechanism for regulation of agricultural marketing, the California Marketing Act of 1937 (Stats. 1937, ch. 404, § 1, p. 1329, now codified as Food & Agr. Code, § § 58601 et seq. (hereafter the Act).)[FOOTNOTE 1] In its declarations of policy, the Act lists a number of structural problems in the "marketing of agricultural commodities in this State," including "the inability of individual producers to maintain present markets or to develop new or larger markets for California-grown commodities." (Food & Agr. Code, § 58651.) The Legislature declared: "These conditions vitally concern the health, peace, safety and general welfare of the people of this state." (Food & Agr. Code, § 58652.) "The marketing of commodities within this state is hereby declared to be affected with a public interest." (Food & Agr. Code, § 58653.)

 Under both the AMAA and the Act, producers of a particular commodity can vote to band together to regulate some or all of the aspects of production and marketing of the commodity, subject to certain findings and approval by federal or state agriculture officials. A board, composed of producers, administers the governmental order implementing the regulations upon which the producers have agreed. The so-called "marketing order" can cover ripeness and size standards, grading and inspection, allocation of production volume of each individual producer, industry-wide ("generic" ) advertising for the particular fruit, and price regulation. (See Voss v. Superior Court (1996) 46 Cal.App.4th 900, 907-908, 911-920.)

B. Roots of the Present Litigation

 From 1939 until 1991, plum production in California was governed by federal marketing orders promulgated pursuant to the AMAA. In 1987, the present appellant, Gerawan Farming, Inc., and other producers challenged the constitutionality of the federal tree fruit marketing orders through a federal administrative proceeding and subsequent judicial appeals. The primary issue appellant raised was "whether the requirement that [appellant] finance , generic advertising [of plums by the marketing order administrator] is a law ' abridging the freedom of speech' within the meaning of the First Amendment." (Glickman v. Wileman Bros. & Elliot (1997) 521 U.S. 457 [117 S.Ct. 2130, 2134] [hereafter referred to as Wileman Bros.].)

 While the 1987 challenge proceeded through the federal courts, the federal marketing order for plums ended in 1991 "after a majority of plum producers failed to vote for its continuation ., " (Wileman Bros., supra, 521 U.S. at p. ___, fn. 5 [117 S.Ct. at p. 2135, fn. 5].) For two years there was a voluntary association of plum producers, but in 1993 a group of plum growers proposed a mandatory California Plum Marketing Order Program as authorized by the Act.

 Pursuant to the Act, the Secretary of the California Department of Food and Agriculture (hereafter Secretary) conducted a referendum concerning the proposed marketing order. From among the 1,371 plum growers reporting harvests in 1993 (and therefore eligible to vote in the referendum), 780 growers voted. Slightly over 70 percent of the growers, representing over 57 percent of the fruit production from 1993, voted in favor of adoption of the proposed marketing order. These percentages exceeded the statutory minimums for adoption of a mandatory marketing order. The California marketing order, establishing the California Plum Marketing Board, became effective on April 20, 1994.[FOOTNOTE 2]

 On October 31, 1994, appellant filed a complaint for declaratory and injunctive relief challenging the California marketing order. Appellant contended, as relevant here, that the Secretary failed to comply with the Administrative Procedure Act (Gov. Code, § 11346 et seq.) and that the marketing order violated appellant' s free speech and association rights under both the state and federal Constitutions.

 The trial court granted partial summary judgment in favor of the growers in an unrelated but parallel case (Tulare Co. case No. 94-166231) raising the same issues as raised by appellant in its complaint. The basis for the judgment was that the Secretary had failed to comply with the Administrative Procedure Act in adopting the marketing order. The Secretary appealed from the grant of summary judgment. The present case was stayed during that appeal.

 While the parallel case was pending in this court, Gerawan and the other producers prevailed in the Ninth Circuit Court of Appeals. (See Wileman Bros. & Elliot, Inc. v. Espy (9th Cir. 1995) 58 F.3d 1367, 1375-1376.)

 In June of 1996, we issued an opinion in the parallel case. (Voss v. Superior Court, supra, 46 Cal.App.4th at p. 906.) This court dismissed the appeal because the partial summary judgment was not an appealable judgment, but the court treated the purported appeal as a petition for writ of mandate. The court granted the writ of mandate, concluding that proceedings to adopt a marketing order are not governed by the Administrative Procedure Act. (Id. at pp. 911, 924.)

 At about the same time, the United States Supreme Court granted certiorari in the Ninth Circuit case challenging the federal marketing order. Once again, the parties agreed to stay the present case, this time until disposition of the Supreme Court case.

 In June of 1997, the Supreme Court issued its opinion in Wileman Bros., upholding the generic-advertising provisions of the federal marketing order against the growers' First Amendment challenge. By a five-to-four majority vote, the court found "no First Amendment right to be free of coerced subsidization of commercial speech" in the regulatory environment established by the AMAA. (Wileman Bros., supra, 521 U.S. ___ [117 S.Ct. at p. 2142], dis. opn. of Souter, J.; see id. pp. ____, [117 S.Ct. at pp. 2140, 2142, maj. opn.) While we find persuasive some of the reasoning contained in Justice Souter' s dissent, we of course must follow the majority opinion, which carefully distinguishes the regulatory scheme there in issue from instances where the court has found free speech protections of the First Amendment abridged.

C. The Present Judgment

 Shortly after the Supreme Court decided Wileman Bros., the Secretary filed her motion for judgment on the pleadings in the present case. Appellant opposed that motion on the basis that the California marketing order was materially different from the federal order upheld by the Supreme Court and on the basis that the California Constitution provided greater protections for liberty of speech and association than did the federal Constitution as construed in Wileman Bros.

 The trial court granted the motion for judgment on the pleadings, but allowed appellant leave to file an amended complaint. Appellant filed its first amended complaint; the amended complaint contains augmented allegations concerning appellant' s disagreement with the philosophy and implementation of the plum marketing order, and pares down the causes of action to include only California Constitution free speech and association causes of action. Respondent renewed its motion for judgment on the pleadings.

 On March 11, 1998, the trial court granted respondent' s motion; on April 17, 1998, the court entered judgment against appellant. Appellant filed a timely notice of appeal.

D. The Facts Alleged in the First Amended Complaint

 Because this is an appeal from a judgment on the pleadings, we treat as true the allegations of the complaint.[FOOTNOTE 3] (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) After recounting the procedural history of the California marketing order and the duties of the Plum Board in administering the order, the first amended complaint states appellant' s objections to the California marketing order. The marketplace for plums is extremely competitive. Appellant has made a decision not to mass-market its plums to large grocery chains because appellant refuses to "sell cheap." Appellant has a branded premium plum that it advertises independently of the Plum Board. The members of the Plum Board are appellant' s competitors. One element of the Plum Board' s marketing campaign is lavishly entertaining various buyers, including those to whom appellant does not sell; such activities merely promote the plums packed and marketed by the members of the Plum Board. In general, the advertising messages of the Plum Board, "if they promote anything, either promote average quality product, as though peaches, plums, and nectarines are all simple commodities with no distinctions, or promote the products being sold by the members" of the Plum Board.

 The buyers of California plums associate appellant with the Plum Board, even though they know he disagrees with the Plum Board' s "idealogy [sic], i.e., socialism and collectivism." Further, appellant believes many of the advertising messages of the Plum Board are "embarrassingly silly, idiotic and/or totally ineffective" ; if appellant were in charge it would fire the advertising agency. In sum, appellant "vehemently disagrees with being associated with the Plum Board" and "abhors being forced to associate with the Board' s messages and messengers."

DISCUSSION

I. The First Amendment

 Appellant contends the California marketing order violates the First Amendment to the United States Constitution. It asserts this despite the contrary holding in Wileman Bros. with respect to the federal marketing order before that court.

A. The scope of the marketing order does not distinguish this case from Wileman Bros.

 Appellant argues that the California marketing order is essentially different from the federal order because the California marketing order is less comprehensive than the federal order. Appellant says the California marketing order is more properly characterized simply as a communal advertising program than as a full-fledged program to replace competition with regulation, as was the marketing order in Wileman Bros.[FOOTNOTE 4]

 The Wileman Bros. opinion states: "In answering [the question whether being compelled to fund generic advertising raises a First Amendment issue] we stress the importance of the statutory context in which it arises. California [treefruit is] marketed pursuant to detailed marketing orders that have displaced many aspects of independent business activity that characterize other portions of the economy in which competition is fully protected by the antitrust laws. The business entities that are compelled to fund the generic advertising at issue in this litigation do so as a part of a broader collective enterprise in which their freedom to act independently is already constrained by the regulatory scheme." (521 U.S. at p. ____ [117 S.Ct. at p. 2138].)

 In a variation on Mies van der Rohe' s famous and paradoxical architectural dictum that "less is more," appellant argues the California marketing order regulates less than the federal order did, and therefore constitutes more of a burden on free speech: by providing more freedom of action for the producer generally, the remaining restraint on speech becomes more egregious.

 As we see the matter, appellant misconstrues the nature of the "replacement of competition" embodied in the New-Deal-era agricultural marketing order laws. The point of these programs is not simply to regulate the market; the point is to preserve the agricultural industry. The laws reflect a long-standing political judgment that "agriculture" - unlike bicycle manufacturing or clothing production, for example - cannot be allowed to disappear from the American economy because of untrammeled market forces, such as those that characterize the international free trade movement. (See Padberg & Hall, supra, 5 San Joaquin Ag. L.Rev. at p. 74.)

 In this context, it is worth repeating at length the legislative findings that form the basis of the exercise of the police power of the state in the Act: "It is hereby declared that the marketing of commodities in this state in excess of reasonable and normal market demands therefor; disorderly marketing of such commodities; improper preparation for market and lack of uniform grading and classification of commodities; unfair methods of competition in marketing of commodities; and the inability of individual producers to maintain present markets or to develop new or larger markets for California-grown commodities, result in an unreasonable and unnecessary economic waste of the agricultural wealth of this state." (Food & Agr. Code, § 58651.) The foregoing described the result of unrestrained competition in the marketing of perishable commodities; the Legislature then stated that "[t]hese conditions vitally concern the health, peace, safety and general welfare of the people of this State." (Food & Agr. Code, § 58652.)

 By appellant' s own characterization, the California marketing order "insure[s] maturity, grade and accurate size labeling," in addition to providing mandatory funding of generic advertising. Although appellant says this "is not , economic regulation displacing competition," it is apparent from the foregoing legislative findings that maturity, grade and labeling standards directly displace the ability to compete using the traditional methods of different ", preparation for market and...[individualized] grading and classification of agricultural commodities." The exercise of individualized judgment that fruit is "ripe enough" to attract buyers or "large enough" to bring a fair price is a classic element of "unrestrained competition." In addition, in appellant' s original administrative objection to the California marketing order (letter of December 8, 1993, from Farmers for Equitable Marketing to H.J. Voss, Director, Department of Food and Agriculture), appellant' s representative expressly complained that size and quality controls would affect supply and demand, thereby increasing the price of plums.

 Even granting that the foregoing provisions may minimally displace competition, however, appellant' s complaint about the California marketing order is that permissible "displacement of competition" must necessarily involve more direct control of production and pricing.[FOOTNOTE 5] Phrased differently, appellant complains the California marketing order does not control the supply of plums in the market, but only seeks to control or stimulate consumers' demand for plums. This complaint misses a fundamental point: supply and demand are the two sides of a single coin.

 It is rational to control prices as a way to ensure both demand for the product and a supply of the product (Challenge Cream etc. Assn. v. Parker (1943) 23 Cal.2d 137, 141-142); it is rational to control supply to ensure a demand sufficient to return a fair price (Agricultural Prorate Com. v. Superior Ct., supra, 5 Cal.2d at p. 582); and it is rational to stimulate demand so that the amount produced by suppliers brings a fair price. In each case, the fundamental assumption of unrestrained competition-that supply and demand together set the price in a free market-is replaced with an assumption that regulatory modification of the market-of supply and/or demand-is necessary in the public interest.[FOOTNOTE 6]

 This is the sense in which the Wileman Bros. majority characterized the generic advertising campaign as not violating free speech protections, but merely as one of a number of available tools imbedded in a comprehensive regulatory program "that impose[s] restraints on competition that arguably disadvantage particular producers for the benefit of the entire market." (521 U.S. at pp. ___ [117 S.Ct. at pp. 2140-2141], fn. omitted.) The point of the Wileman Bros. discussion of the whole range of regulatory tools is not that all or most of them must be used in any given marketing order. Instead, the point is that the advertising tool merely seeks to accomplish the same goals as equally or more invasive tools, such as price, quantity, quality and labeling restrictions; no greater weight should be given to the fact that the advertising tool involves an activity that, in other contexts, is "commercial speech" protected by the First Amendment. (See ibid.)

 At oral argument, we asked appellant' s counsel to specify the ways in which the federal marketing order under consideration in Wileman Bros. was different and more invasive than the present California marketing order. As we understood counsel' s response, appellant' s only claim is that the California marketing order has a somewhat more relaxed quality standard than did the federal order, which is hardly a significant lessening of the "displacement of competition."

 The federal marketing order was Marketing Order 917, as modified from time to time. (Wileman Bros. & Elliott, Inc. v. Espy, supra, 58 F.3d 1367, 1373, revd. sub nom. Wileman Bros., supra, 521 U.S. ___ [117 S.Ct. 2130].) Our own review of that marketing order, which was codified at 7 Code of Federal Regulations part 917 (1989), indicates the order was essentially the same as the California marketing order. That is, the federal marketing order included: packing and sizing restrictions (7 C.F.R. § 917.454), maturity standards (id. at § 917.460), requirements for daily shipping reports (id. at § 917.177), authorization for production and marketing research as well as paid advertising (id. at § 917.39), and authorization for assessments to pay for all of the programs (id. at § 917.37). It does not appear the federal marketing order included any direct price or quantity controls, even though such controls are authorized under the AMAA, just as they are in the Act for state marketing orders. (See Food & Agr. Code, § § 58881-58887.)

 While not determinative of our analysis, the actual content of the federal marketing order reinforces our conclusion that the United States Supreme Court in Wileman Bros. did not hold that a compulsory generic advertising program is only permissible as part of a marketing order that wholly or substantially displaces competition in a particular market.

 Finally, although we find it unlikely that respondent could or would make the appropriate findings to adopt a marketing order composed solely and entirely of a compulsory generic advertising campaign, such an order is not before us in the present case. (But see Gallo Cattle Co. v. California Milk Advisory Board (9th Cir. 1999) 167 F.3d 1247 [marketing order for advertising milk and cheese].) As alleged in appellant' s initial complaint, the California marketing order "provided for quality control standards to be established by the Plum Marketing Board to include forced inspection regarding maturity, color, and other quality factors." The research and quality control components of the program are alleged to account for 48 percent of the assessment against growers, while the advertising program (including supply and demand surveys) accounts for 52 percent of the assessment. This allocation of the assessment budget is approximately the same as the allocation under the federal marketing order under consideration in Wileman Bros.

 Accordingly, we reject appellant' s argument that the California marketing order can be distinguished for First Amendment purposes from the federal marketing order under consideration in Wileman Bros., either as a matter of law or as a matter of fact.   While respondent and the majority of California plum growers apparently believe market stabilization can be achieved without the price and quantity controls that are authorized under the Act, such a conclusion does not render constitutionally invalid an advertising program that would be constitutional when combined with such price and quantity controls.

B. The nature of the litigant does not distinguish this case from Wileman Bros.

 Appellant also argues that it vehemently disagrees with the message of the advertising program promulgated pursuant to the marketing order, whereas the Supreme Court in Wileman Bros. found that none of the growers there disagreed "with the central message of the speech that is generated by the generic program." (521 U.S. at p. ___ [117 S.Ct. at p. 2138].) This argument is somewhat strange, since appellant is one of the growers to which the Supreme Court referred in Wileman Bros. (see 521 U.S. at p. ___, fns. 10, 11 [117 S.Ct. at p. 2137, fns. 10, 11]) and appellant' s stated disagreements with the California marketing order' s advertising campaign are virtually identical to those dubbed "trivial" in Wileman Bros. (See id. at p. ___ [117 S.Ct. at pp. 2139].) Indeed, the first amended complaint specifically alleges that the state Plum Board and the federal Treefruit Committee at issue in Wileman Bros. act together in developing and implementing the advertising and "schmoozing" practices to which appellant objects.

 In any event, Wileman Bros. conclusively establishes that, where association is legitimately compelled in the public interest, "expressive activities" of the collective entity do not violate the First Amendment rights of those compelled to join the collective entity if those expressive activities are germane to the purposes for which collectivization is compelled. (521 U.S. at pp. ___ [117 S.Ct. at pp. 2139-2140].) Here, the generic advertising is authorized solely to increase the overall market for plums; augmentation of consumer demand as a method of obtaining market stability is at the very core of the police-power purpose for which the partial collectivization of the plum industry is permitted. (See id. at p. ___ and fn. 16 [117 S.Ct. at p. 2140 and fn. 16].) Accordingly, such advertising is germane, within the meaning of Wileman Bros.

 The issue, then, is not whether appellant disagrees with the "socialistic" idea of "collectivist" marketing of plums. And the issue is not whether those who participate in the Plum Board have an "ideological bent, which is collectivizing advertising in the industry." Those battles were fought, and lost, by appellant' s ideological forebears in the 1930' s under claims of economic liberty and freedom of contract. (Compare Adkins v. Children' s Hospital (1923) 261 U.S. 525, 545; Coppage v. Kansas (1915) 236 U.S. 1, 14; Ex parte Farb (1918) 178 Cal. 592, 597-598; People v. Holder (1921) 53 Cal.App. 45, 52; with West Coast Hotel Co. v. Parrish (1937) 300 U.S. 379, 391; Nebbia v. New York (1934) 291 U.S. 502, 537-538.) The issue instead, as framed by Wileman Bros., is whether the otherwise legitimate power of the collective entity is being abused by forcing the membership to fund espousal of extraneous speech, that is, speech that is not "germane to the purposes" of the organization and is ideological in character. (521 U.S. at p. ___ [117 S.Ct. at p. 2140]; see Smith v. Regents of University of California (1993) 4 Cal.4th 843, 854 [compelled speech must be germane to the purpose for which compelled association was justified initially].) There has been no showing in the present case that the marketing order authorizes nongermane or ideological speech by the Plum Board.[FOOTNOTE 7]

 We conclude the California marketing order does not violate the First Amendment as interpreted in Wileman Bros.

II. The California Constitution

 Article I, sections 2 and 3, of the California Constitution provide protections for liberty of speech and freedom of association independent of the First Amendment of the United States Constitution.[FOOTNOTE 8] Appellant contends these constitutional provisions should be construed more broadly than the Supreme Court construed the First Amendment in Wileman Bros., so as to afford an independent basis for invalidation of the California marketing order. This contention has no merit.

 Numerous California courts have stated the general proposition that the California Constitution' s liberty of speech clause is "more definitive and inclusive than the First Amendment." (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658.) The cases making such a statement often proceed to hold that the restriction in question is invalid under both the First Amendment and the state Constitution (see, e.g., Wilson v. Superior Court, supra, 13 Cal.3d at p. 661; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 674-675), or else to hold that the First Amendment analysis adopted by the federal courts accurately reflects the law under the state Constitution as well (see, e.g., California Teachers Assn. v. Governing Board (1996) 45 Cal.App.4th 1383, 1391-1392).

 Merely to say that the liberty of speech clause is broader than the First Amendment, then, does not answer the question whether the liberty of speech clause protects any particular expressive activity that is not protected by the First Amendment. We address first the standards that govern such a determination.

 In 1974, the voters amended the California Constitution to "ma[k]e explicit a preexisting fundamental principle of constitutional jurisprudence." (Raven v. Deukmejian (1990) 52 Cal.3d 336, 354.) Article I, section 24 was added to the Constitution to provide: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." (Id. at p. 350.)

 A long-standing corollary to the doctrine of independence of the state' s guarantee of fundamental rights is the so-called "principle of deference." "As early as 1938, we stated that ' cogent reasons must exist before a state court in construing a provision of the state Constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal Constitution.' [Citations.]" (Raven v. Deukmejian, supra, 52 Cal.3d at p. 353.) The court summarized the policy as one of voluntary deference to high court decisions unless there are "' cogent reasons,' ' independent state interests,' or ' strong countervailing circumstances' that might lead our courts to construe similar state constitutional language differently from the federal approach." (Ibid.; see also Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1152, fn. 19.)

 As relevant here, there have been only two occasions on which the California courts have interpreted the liberty of speech clause "differently from the federal approach." We will consider each of these two departures from the federal standard.

A. Commercial Speech

 In the first example of a departure from First Amendment standards, the California courts did not explicitly distinguish the liberty of speech protections from the First Amendment guarantee of free speech; nevertheless, the distinction was apparent. In February of 1942, the California Supreme Court decided McKay Jewelers, Inc. v. Bowron (1942) 19 Cal.2d 595. At issue in that case was a city ordinance that, in relevant part, prohibited soliciting potential customers to enter a business, or soliciting the sale of merchandise, from any street or sidewalk or in any doorway or entrance to any building opening onto a street or sidewalk. (Id. at p. 597.) The court held that the restriction was impermissible under the police power, as applied to "quiet, dignified and peaceful" solicitation. (Id. at pp. 601-602.) In addition, rejecting the city' s contention "that ' regulations and prohibitions bearing upon solicitation of trade are not to be measured by rules relating to freedom of speech' " (id. at pp. 604-605), the court held that the solicitation "prohibition in the instant case is in violation of the constitutional guarantee of freedom of speech." (Id. at p. 605.)

 Two months later, in April of 1942, the United States Supreme Court decided Valentine v. Chrestensen (1942) 316 U.S. 52. In that case, the court considered the constitutionality of criminal sanctions imposed by the City of New York on a man who attempted to distribute handbills advertising tours of a decommissioned submarine.[FOOTNOTE 9] The court stated: "This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in the public thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising., The question is not whether the legislative body may interfere with the harmless pursuit of a lawful business, but whether it must permit such pursuit by what it deems an undesirable invasion of, or interference with, the full and free use of the highways by the people in fulfillment of the public use to which streets are dedicated." (Id. at pp. 54-55.)

 Despite the unequivocal holding in Valentine, nearly 20 years later the California Court of Appeal stated categorically: "The right to advertise also represents the exercise of the right of free speech. (McKay Jewelers, Inc. v. Bowron , .)" (Carlin v. City of Palm Springs (1971) 14 Cal.App.3d 706, 713.) The court did not mention Valentine or other federal commercial speech precedent. Although the Carlin court did not attempt to delineate the reach of the liberty of speech clause in the context of commercial speech, it iterated in detail the degree to which commercial speech is subject to very broad police power regulation. (Id. at p. 712.)

 In 1976, the United States Supreme Court abrogated the holding of Valentine in Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 758, 770. In that and subsequent cases, the court held that commercial speech is protected by the First Amendment but is subject to police power regulation. (Id. at pp. 770-772 and fn. 24; see Central Hudson Gas & Elec. v. Public Serv. Comm' n. (1980) 447 U.S. 557.)

 Since the United States Supreme Court opinion in Va. Pharmacy Bd., there has been no California appellate opinion articulating a higher standard for protection of commercial speech under the state Constitution' s liberty of speech clause. (See, e.g., Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 866-871, revd. on other grounds in Metromedia, Inc. v. San Diego (1981) 453 U.S. 490, on remand, Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180.) Thus, the current state of the law is that the measure of protection afforded commercial speech under the California liberty of speech clause is no greater than that provided by the federal First Amendment. (People v. Superior Court (Olson) (1979) 96 Cal.App.3d 181, 195; see also In re Morse (1995) 11 Cal.4th 184, 200, fn. 4.)

B. Shopping Centers

 The second relevant instance in which the courts have recognized a distinction between the First Amendment and the liberty of speech clause is in the context of expressive activity on the premises of large private shopping centers. (Compare Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 907, with Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 569.) Appellant places much of its reliance in the present case on Robins.

 The disagreement between Robins and Lloyd Corp. is not over the nature of the speech involved but, rather, over the place where the speech will occur. Focusing on the fact that the First and Fourteenth Amendments "safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property , " (Lloyd Corp. v. Tanner, supra, 407 U.S. at p. 567), the United States Supreme Court held that there is no right of free speech at a private shopping center unless the owners of the center stand "in the shoes of the State" through the "assumption or exercise of municipal functions or power." (Id. at p. 569.)

 The state constitutional liberty of speech clause, by contrast, is an affirmative guaranty of that liberty, not merely a prohibition on governmental interference with it. Thus, the state is entitled to use its police power to regulate the use of private property so as to enforce the liberty of speech guarantee. (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at pp. 905-906; see American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 326 [state right of privacy extends to private action as well as state action].)[FOOTNOTE 10]

 Two points may be gleaned from the Robins expansion of free speech beyond the First Amendment guarantee. First, it is not the nature of the speech itself but, rather, the nature of the governmental guarantor-the limited-powers federal government versus the plenary-powers state government-that results in a broader protection for liberty of speech under the state Constitution. (See Macias v. Hartwell (1997) 55 Cal.App.4th 669, 674-675.) Second, despite the claim in Lloyd Corp. that the differences between a large shopping center and a free-standing store "are differences only of degree-not of principle" (Lloyd Corp. v. Tanner, supra, 407 U.S. at pp. 565-566), the California expansion of liberty of speech was indeed limited only to large shopping centers that are "miniature downtowns." (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at p. 910, fn. 5.) Thus, the California Supreme Court adopted Justice Mosk' s statement of the limited reach of the liberty of speech expansion: "By no means do we imply that those who wish to disseminate ideas have free rein., ' It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment.' " That limitation has been implemented consistently (see Bank of Stockton v. Church of Soldiers (1996) 44 Cal.App.4th 1623, 1629-1630), with the result that First Amendment standards often have been applied to reject free speech claims under the liberty of speech clause, when such claims arise from activities at smaller private properties. (Id. at p. 1631.)

C. Analysis

 We have discussed the commercial speech and private shopping center cases at some length in order to determine whether those cases suggest "' cogent reasons,' ' independent state interests,' or ' strong countervailing circumstances' " (Raven v. Deukmejian, supra, 52 Cal.3d at p. 353) that might lead us to reject the analysis of the United States Supreme Court in Wileman Bros. We conclude they do not. We have seen, instead, that the California Constitution provides no additional protection for commercial speech than that provided by the First Amendment and that Robins only addresses the permissible locations for protected political speech, not the nature of the speech itself.[FOOTNOTE 11]

 Further, we have seen from the history of constitutional analysis of New Deal legislation that the state enjoys at least as much police power authority as does the federal government in the field of regulation of agriculture.

 Accordingly, we conclude there are no independent state interests or other cogent reasons that support a departure from the Wileman Bros. analysis. The fact that generic advertising is "speech" that may be protected in other contexts does not distinguish advertising from the other aspects of economic regulation in the context of agricultural marketing orders. (__ U.S. at p. ___ [117 S.Ct. at p. 2142].)[FOOTNOTE 12] Forced funding of generic advertising under a valid market order does not violate the California Constitution' s liberty of speech and freedom of association provisions.

Disposition

 The judgment is affirmed. Costs on appeal are awarded to respondent.

Vartabedian, J.

WE CONCUR: Ardaiz, P. J., and Buckley, J.

::::::::::::::::::::::::::::: FOOTNOTE(S):::::::::::::::::::::::::::::

FN*. Judge Broadman granted the motion for judgment on the pleadings with leave to amend; Judge O' Hara granted the motion for judgment on the pleadings without leave to amend and rendered the final judgment from which the appeal is taken.

FN1. California previously had adopted a law authorizing limits on production by growers of perishable commodities. (See Stats. 1933, ch. 754, p. 1969.) The constitutionality of that law was upheld in Agricultural Prorate Com. v. Superior Ct. (1936) 5 Cal.2d 550, 582.

FN2. As described in Voss v. Superior Court, supra, 46 Cal.App.4th at pages 905-906, the Plum Marketing Board consists "of 13 plum growers and handlers, to assist the secretary in administering the plum marketing program.... [T]he Board' s authority would include, subject to the approval of the secretary: (1) the pursuit of research and development studies pertaining to the production and distribution of plums; (2) the conduct of advertising and sales promotion programs relating to plums; (3) the investigation of economic and marketing conditions affecting plums; (4) the recommendation of grade and quality standards for plums, provided such standards were not ' lower than any existing State or Federal regulations' ; (5) the making of arrangements for the inspection and certification of plums for compliance with prevailing grade and quality standards; (6) the recommendation of budgets for the administration and enforcement of the program; and (7) the recommendation of assessment rates, ' sufficient to provide adequate funds to defray the proposed expenditures and reserves as set forth in the budgets.' The , order also set minimum maturity standards for plums and directed how assessments levied upon producers would be paid, collected and, if applicable, refunded. In addition, the order prescribed the maximum assessment levels for the component activities authorized by the proposed order; for example, the assessment for sales promotion and marketing development activities could not exceed 11 cents per 28-pound box of plums." (Fn. omitted.)

FN3. The original complaint, which also included causes of action alleging violations of the Administrative Procedure Act, federal civil rights laws, and various other constitutional provisions, contained many allegations no longer relevant to the case. As to the First Amendment claims, the facts alleged in the two complaints are essentially the same.

FN4. Appellant also characterizes the marketing order as "a speech tax on everybody in the industry." Appellant provides no argument or authorities in support of the idea that such a characterization renders the program constitutionally suspect. We note, to the contrary, that in one of the early cases declaring unconstitutional a New Deal commodity price support program funded by an assessment on first-level processors of the commodity, the court concluded that, conceding the program was a tax, it was unconstitutional not for that reason but because it sought to accomplish a goal of economic regulation reserved to the states. (United States v. Butler, supra, 297 U.S. at pp. 69-70.)

FN5. Appellant implicitly acknowledges that the state marketing order would be constitutional under Wileman Bros. if it were more pervasive in its control of both supply and demand. Appellant states: "One of the touchstones of displacing competing [sic] is limiting the volume that can be sold., The true purpose of the Plum Committee in this case is to enforce a speech tax ., That is not an economic regulation..."

FN6. Appellant is correct, of course, in contending "there is no compelling state interest in advertising plums." There is, however, a strong public interest in providing an adequate and stable market for plums and other California fruits. (Agricultural Prorate Com. v. Superior Ct., supra, 5 Cal.2d at p. 582.) Advertising is simply a rational means to accomplish this important, long-recognized public purpose.

FN7. Appellant contends, "After all, choices of ideas and beliefs are no less important to the citizens of a free society because they concern plums rather than politicians., All of the above are ' for sale' in their respective market places." If the Plum Board launched an advertising campaign promoting rotten plums as the "fruit of choice" to hurl at the Mayor of San Francisco (see DelVecchio, Activist Says He Tried To Feed Brown a Big Helping of Humble Pie, San Francisco Chronicle (Nov. 9, 1998) p. A17), or even if the Plum Board urged a boycott of Chilean plums because it disagreed with the North American Free Trade Act, the advertisements might constitute ideological speech even though they were in some sense germane to the purpose of selling more California plums. (See Lehnert v. Ferris Faculty Assn. (1991) 500 U.S. 507, 520-522.) Nevertheless, the "ideological" content of the simple message "buy more plums" is obviously and significantly different from the ideological content of the message "buy more politicians." (See Wileman Bros., supra, 521 U.S. at p. ___, fn. 16 [117 S.Ct. at p. 2140, fn. 16].

FN8. California Constitution, article I, sections 2 and 3 provide, in relevant part:

 "Sec. 2. (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. [¶ ] , [¶ ] Sec. 3. The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good."

We will refer to these as the liberty of speech clause and the freedom of association section, respectively. Appellant makes no separate argument concerning the freedom of association section and we perceive no distinguishing factors in that section that require separate consideration. Accordingly, our discussion primarily will address the issue as one of liberty of speech.

FN9. The Supreme Court earlier had held that the First Amendment was applicable to the states through the Fourteenth Amendment. (See Near v. Minnesota (1931) 283 U.S. 697, 707.)

FN10. A similar divergence of concerns may be seen in People v. Martin (1955) 45 Cal.2d 755, 760, and Alderman v. United States (1969) 394 U.S. 165, 174-175. Both cases involved the doctrine of "vicarious standing" for exclusionary rule purposes. The United States Supreme Court held that Fourth Amendment rights were personal to one whose rights were violated, and it was not a function of the federal exclusionary rule to prevent police misconduct generally, but only to vindicate the individual' s rights. In Martin, by contrast, the California Supreme Court held that the purpose of the exclusionary rule under the state Constitution was precisely "' to secure compliance with the constitutional provisions on the part of police officers,' " regardless of whose rights were violated. (45 Cal.2d at p. 760.) Thus, the state court imposed the broader exclusionary rule, permitting a defendant to exclude from his trial evidence illegally seized from a third party. (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 156-157.) Although declining to adopt it as part of the federal exclusionary rule, the United States Supreme Court recognized the validity of such state level policy decisions in Alderman. (See 394 U.S. at pp. 174-175.) The vicarious exclusionary rule was, of course, vitiated by Proposition 8. (In re Lance W. (1985) 37 Cal.3d 873, 886-887.)

FN11. The expansion of the criminal law exclusionary rule in People v. Martin, supra, 45 Cal.2d at page 760, does not reflect the same concerns as present in this case. Even though Martin restricted governmental activity in furtherance of individual constitutional rights, the governmental conduct there was itself illegal. Here, the governmental action of taking steps to preserve the agriculture industry is not illegal and serves a valid public purpose.

FN12. It avails appellant nothing to characterize the Plum Board as dominated by appellant' s "competitors" selling a "mediocre product" from which appellant wants to distinguish its top-of-the-line plums. The same considerations would be present to an even greater degree with a proration order that limited appellant' s ability to out-sell its competitors or a price-support system that allowed competitors to stay in business even though they could not command the premium prices appellant might obtain for its product. To the extent appellant may be understood to claim that the generic advertising program in some manner discriminates against appellant or otherwise conveys a particular message that does not benefit appellant (but see Padberg & Hall, supra, 5 San Joaquin Ag. L.Rev. at p. 86 ["There may be situations where (advertising and research) have been useless, but we are unaware of any situation where serious harm was done to anyone through these programs." ]), these "are all essentially challenges to the administration of the program that are more properly addressed to the Secretary" in administrative proceedings. (Wileman Bros., supra, 521 U.S. at p. ___, fn. 11 [117 S.Ct. at p. 2138, fn. 11].)