475 U.S. 1 (1986), 84-1044, Pacific Gas & Electric Co. v. Public Utilities Commission of California

Docket Nº:No. 84-1044
Citation:475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1, 54 U.S.L.W. 4149
Party Name:Pacific Gas & Electric Co. v. Public Utilities Commission of California
Case Date:February 25, 1986
Court:United States Supreme Court
 
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475 U.S. 1 (1986)

106 S.Ct. 903, 89 L.Ed.2d 1, 54 U.S.L.W. 4149

Pacific Gas & Electric Co.

v.

Public Utilities Commission of California

No. 84-1044

United States Supreme Court

Feb. 25, 1986

        Argued October 8, 1985

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA

        Syllabus

        Appellant Pacific Gas and Electric Co. has distributed a newsletter in its monthly billing statements for many years. The newsletter has included political editorials, feature stories on matters of public interest, tips on energy conservation, and information about utility services and bills. Appellee Toward Utility Rate Normalization (TURN), in a ratemaking proceeding before appellee California Public Utilities Commission (Commission), urged the Commission to forbid appellant to use billing envelopes to distribute political editorials, on the ground that appellant's customers should not bear the expense of appellant's own political speech. The Commission decided that the envelope space that appellant had used to disseminate the newsletter was the ratepayers' property, defining this "extra space" as the space left over after including the bill and required notices. In an effort to apportion this "extra space" between appellant and its customers, the Commission permitted TURN to use the "extra space" four times a year to raise funds and to communicate with ratepayers with no limitation except to state that its messages were not those of appellant. Arguing that it had a First Amendment right not to help spread a message with which it disagrees, appellant appealed the Commission's order to the California Supreme Court, which denied discretionary review.

        Held: The Commission's decision must be vacated.

        Remanded.

        JUSTICE POWELL, joined by THE CHIEF JUSTICE, JUSTICE BRENNAN, and JUSTICE O'CONNOR, concluded:

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        1. The Commission's order impermissibly burdens appellant's affirmative First Amendment rights. Pp. 9-18.

        (a) The order awards access to the billing envelopes only to persons or groups, such as TURN, who disagree with appellant's views as expressed in its newsletter and who oppose appellant in Commission proceedings. Such one-sidedness impermissibly burdens appellant's expression. Appellant must contend with the fact that, whenever it speaks out on a given issue, it may be forced to help disseminate hostile views. Appellant "might well conclude" that, under these circumstances, "the safe course is to avoid controversy," thereby reducing the free flow of information and ideas. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257. Pp. 10, 12-15.

        (b) The order also impermissibly requires appellant to associate with speech with which appellant may disagree. Appellant may be forced either to appear to agree with TURN's views or to respond. That kind of forced response is antithetical to the free discussion that the First Amendment fosters. For corporations, as for individuals, the choice to speak includes within it the choice of what not to say. Tornillo, supra, at 258. Pp. 10-11, 15-17.

        (c) The Commission's determination that the envelopes' "extra space" belongs to the ratepayers does not correct the order's constitutional deficiency. The billing envelopes remain appellant's property. Under the order, appellant must use that property to disseminate views with which it disagrees. Pp. 17-18.

        2. The order is neither a narrowly tailored means of serving a compelling state interest nor a permissible time, place, or manner regulation. Pp. 19-20.

        JUSTICE MARSHALL concluded that the State, pursuant to the Commission's order, has redefined a property right in the "extra space" in appellant's billing envelopes in such a way as to achieve a result -- burdening one party's speech in order to enhance another party's speech -- that the First Amendment disallows. PruneYard Shopping Center v. Robins, 447 U.S. 74, distinguished. Pp. 21-26.

        POWELL, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C.J., and BRENNAN and O'CONNOR, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 21. MARSHALL, J., filed an opinion concurring in the judgment, post, p. 21. REHNQUIST, J., filed a dissenting opinion, in Part I of which WHITE and STEVENS, JJ., joined, post, p. 26. STEVENS, J., filed a dissenting opinion, post, p. 35. BLACKMUN, J., took no part in the consideration or decision of the case.

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        POWELL, J., lead opinion

        JUSTICE POWELL announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE BRENNAN, and JUSTICE O'CONNOR join.

        The question in this case is whether the California Public Utilities Commission may require a privately owned utility company to include in its billing envelopes speech of a third party with which the utility disagrees.

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        I

        For the past 62 years, appellant Pacific Gas and Electric Company has distributed a newsletter in its monthly billing envelope. Appellant's newsletter, called Progress, reaches over three million customers. It has included political editorials, feature stories on matters of public interest, tips on energy conservation, and straightforward information about utility services and bills. App. to Juris. Statement A-66, A-183 to A-190.1

       [106 S.Ct. 906] In 1980, appellee Toward Utility Rate Normalization (TURN), an intervenor in a ratemaking proceeding before California's Public Utilities Commission, another appellee,2 urged the Commission to forbid appellant to use the billing envelopes to distribute political editorials, on the ground that appellant's customers should not bear the expense of appellant's own political speech. Id. at A-2. The Commission decided that the envelope space that appellant had used to disseminate Progress is the property of the ratepayers. Id. at A-2 to A-3.3 This "extra space" was defined as

the

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space remaining in the billing envelope, after inclusion of the monthly bill and any required legal notices, for inclusion of other materials up to such total envelope weight as would not result in any additional postage cost.

        Ibid.

        In an effort to apportion this "extra space" between appellant and its customers, the Commission permitted TURN to use the "extra space" four times a year for the next two years. During these months, appellant may use any space not used by TURN, and it may include additional materials if it pays any extra postage. The Commission found that TURN has represented the interests of "a significant group" of appellant's residential customers, id. at A-15, and has aided the Commission in performing its regulatory function, id. at A-49 to A-50. Consequently, the Commission determined that ratepayers would benefit from permitting TURN to use the extra space in the billing envelopes to raise funds and to communicate with ratepayers:

Our goal . . . is to change the present system to one which uses the extra space more efficiently for the ratepayers' benefit. It is reasonable to assume that the ratepayers will benefit more from exposure to a variety of views than they will from only that of PG&E.

        Id. at A-17. The Commission concluded that appellant could have no interest in excluding TURN's message from the billing envelope, since appellant does not own the space that message would fill. Id. at A-23.4 The Commission

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placed no limitations on what TURN or appellant could say in the envelope, except that TURN is required to state that its messages are not those of appellant. Id. at A-17 to A-18. The Commission reserved the right to grant other groups access to the envelopes in the future.5 Ibid.

        Appellant appealed the Commission's order to the California Supreme Court, arguing that it has a First Amendment right not to help spread a message with which it disagrees, see Wooley v. Maynard, 430 U.S. 705 (1977), and that the Commission's order infringes that right. The California Supreme Court denied discretionary review. We noted probable jurisdiction, 470 U.S. 1083 (1985), and now reverse.

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        II

        The constitutional guarantee of free speech "serves significant societal interests" wholly apart from the speaker's interest in self-expression. First National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978). By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public's interest in receiving information. See Thornhill v. Alabama, 310 U.S. 88, 102 (1940); Saxbe v. Washington Post Co., 417 U.S. 843, 863-864 (1974) (POWELL, J., dissenting). The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the "discussion, debate, and the dissemination of information and ideas" that the First Amendment seeks to foster. First National Bank of Boston v. Bellotti, supra, at 783 (citations omitted). Thus, in Bellotti, we invalidated a state prohibition aimed at speech by corporations that sought to influence the outcome of a state referendum. 435 U.S. at 795. Similarly, in Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U.S. 530, 544 (1980), we invalidated a state order prohibiting a privately owned utility company from discussing controversial political issues in its billing envelopes. In both cases, the critical considerations were that the State sought to abridge speech that the First Amendment is designed to protect, and that such prohibitions limited the range of information and ideas to which the public is exposed. First National Bank of Boston v. Bellotti, supra, at 776-778, 781-783; Consolidated Edison Co. v. Public Service Comm'n of N.Y....

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