447 U.S. 530 (1980), 79-134, Consolidated Edison Company of New York v. Public Service Commission of New York

Docket Nº:No. 79-134
Citation:447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319
Party Name:Consolidated Edison Company of New York v. Public Service Commission of New York
Case Date:June 20, 1980
Court:United States Supreme Court
 
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Page 530

447 U.S. 530 (1980)

100 S.Ct. 2326, 65 L.Ed.2d 319

Consolidated Edison Company of New York

v.

Public Service Commission of New York

No. 79-134

United States Supreme Court

June 20, 1980

Argued March 17, 1980

APPEAL FROM TE COURT OF APPEALS OF NEW YORK

Syllabus

Held: An order of appellee New York Public Service Commission that prohibits the inclusion by appellant (and other public utility companies) in monthly bills of inserts discussing controversial issues of public policy directly infringes the freedom of speech protected by the First and Fourteenth Amendments, and thus is invalid. Cf. First National Bank of Boston v. Bellotti, 435 U.S. 765. Pp. 533-544.

(a) The restriction on bill inserts cannot be upheld on the ground that appellant, as a corporation, is not entitled to freedom of speech.

The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.

First National Bank of Boston v Bellotti, supra at 777. Pp. 533-535.

(b) Nor is the state action here a valid time, place, or manner restriction. While the validity of reasonable time, place, or manner regulations that serve a significant governmental interest and leave ample alternative channels for communication has been recognized, such regulations may not be based upon either the content or subject matter of speech. Appellee here does not pretend that its action is unrelated to the content of bill inserts, inserts that present information to consumers on certain subjects, such as energy conservation measures, being allowed, but inserts that discuss public controversies being forbidden. Pp. 535-537.

(c) The prohibition against inserts is not a permissible subject matter regulation merely because it applies to all discussion of political controversies, whether pro or con. The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic, and the regulation at issue here does not fall within the narrow exceptions to the general prohibition against subject matter distinctions. Greer v. Spock, 424 U.S. 828, and Lehman v. Shaker Heights, 418 U.S. 298, distinguished. Pp. 537-540.

(d) Furthermore, the state action here is not valid as a narrowly drawn prohibition serving a compelling state interest. The prohibition

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cannot be justified as being necessary to avoid forcing appellant's views on a captive audience, since customers may escape exposure to objectionable material simply by throwing the bill insert into a wastebasket. Nor is the prohibition warranted as being necessary to allocate, in the public interest, the limited space in the billing envelope, there being nothing in the record to show that the bill inserts at issue would preclude the inclusion of other inserts that appellant might be ordered lawfully to include in the billing envelope. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, distinguished. And the prohibition cannot be justified as being necessary to ensure that ratepayers do not subsidize the cost of the bill inserts, since there is no basis on the record to assume that appellee could not exclude the cost of the inserts from the utility's rate base. Pp. 540-543.

47 N.Y.2d 94, 390 N.E.2d 749, reversed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. MARSHALL, J., filed a concurring opinion, post, p. 544. STEVENS, J., filed an opinion concurring in the judgment, post, p. 544. BLACKMUN, J., filed a dissenting opinion, in Parts I and II of which REHNQUIST, J., joined, post, p. 548.

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POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

The question in this case is whether the First Amendment, as incorporated by the Fourteenth Amendment, is violated by an order of the Public Service Commission of the State of New York that prohibits the inclusion in monthly electric bills of inserts discussing controversial issues of public policy.

I

The Consolidated Edison Company of New York, appellant in this case, placed written material entitled "Independence Is Still a Goal, and Nuclear Power Is Needed To Win the Battle" in its January, 1976, billing envelope. The bill insert stated Consolidated Edison's views on "the benefits of nuclear power," saying that they "far outweigh any potential risk" and that nuclear power plants are safe, economical, and clean. App 35. The utility also contended that increased use of nuclear energy would further this country's independence from foreign energy sources.

In March, 1976, the Natural Resources Defense Council, Inc. (NRDC), requested Consolidated Edison to enclose a rebuttal prepared by NRDC in its next billing envelope. Id. at 45-46. When Consolidated Edison refused, NRDC asked the Public Service Commission of the State of New York to open Consolidated Edison's billing envelopes to contrasting views on controversial issues of public importance. Id. at 32-33.

On February 17, 1977, the Commission, appellee here, denied NRDC's request, but prohibited "utilities from using bill inserts to discuss political matters, including the desirability of future development of nuclear power." Id. at 50. The Commission explained its decision in a Statement of Policy on Advertising and Promotional Practices of Public Utilities issued on February 25, 1977. The Commission concluded

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that Consolidated Edison customers who receive bills containing inserts are a captive audience of diverse views who should not be subjected to the utility's beliefs. Accordingly, the Commission barred utility companies from including bill inserts that express "their opinions or viewpoints on controversial issues of public policy." App. to Juris.Statement 43a. The Commission did not, however, bar utilities from sending bill [100 S.Ct. 2331] inserts discussing topics that are not "controversial issues of public policy." The Commission later denied petitions for rehearing filed by Consolidated Edison and other utilities. Id. at 59a.

Consolidated Edison sought review of the Commission's order in the New York state courts. The State Supreme Court, Special Term, held the order unconstitutional. 93 Misc.2d 313, 402 N.Y.S.2d 551 (1978). But the State Supreme Court, Appellate Division, reversed, 63 App.Div.2d 364, 407 N.Y.S.2d 735 (1978), and the New York Court of Appeals affirmed that judgment. 47 N.Y.2d 94, 390 N.E.2d 749 (1979). The Court of Appeals held that the order did not violate the Constitution, because it was a valid time, place, and manner regulation designed to protect the privacy of Consolidated Edison's customers. Id. at 106-107, 390 N.E.2d at 755. We noted probable jurisdiction, 444 U.S. 822 (1979). We reverse.

II

The restriction on bill inserts cannot be upheld on the ground that Consolidated Edison is not entitled to freedom of speech. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), we rejected the contention that a State may confine corporate speech to specified issues. That decision recognized that

[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.

Id. at 777. Because the state action limited protected speech, we concluded that the

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regulation could not stand absent a showing of a compelling state interest. Id. at 786.1

The First and Fourteenth Amendments guarantee that no State shall "abridg[e] the freedom of speech." See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500-501 (1952). Freedom of speech is "indispensable to the discovery and spread of political truth," Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring), and "the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . ." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).2 The First and Fourteenth Amendments remove

governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity. . . .

Cohen v. California, 403 U.S. 15, 24 (1971).3

This Court has emphasized that the First Amendment "embraces at the least the liberty to discuss publicly and truthfully all [100 S.Ct. 2332] matters of public concern. . . ." Thornhill v.

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Alabama, 310 U.S. 88, 101-102 (1940); see Mills v. Alabama, 384 U.S. 214, 218 (1966). In the mailing that triggered the regulation at issue, Consolidated Edison advocated the use of nuclear power. The Commission has limited the means by which Consolidated Edison may participate in the public debate on this question and other controversial issues of national interest and importance. Thus, the Commission's prohibition of discussion of controversial issues strikes at the heart of the freedom to speak.

III

The Commission's ban on bill inserts is not, of course, invalid merely because it imposes a limitation upon speech. See First National Bank of Boston v. Bellotti, supra at 786. We must consider whether the State can demonstrate that its regulation is constitutionally permissible. The Commission's arguments require us to consider three theories that might justify the state action. We must determine whether the prohibition is (i) a reasonable time, place, or manner restriction, (ii) a permissible subject matter regulation, or (iii) a narrowly tailored means of serving a compelling state interest.

A

This Court has recognized the validity of reasonable time, place, or manner regulations that serve a significant governmental interest and leave...

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