Huntley v. Public Utilities Commission

Decision Date19 July 1968
Docket NumberS.F. 22574
Citation442 P.2d 685,69 Cal.2d 67,69 Cal.Rptr. 605
CourtCalifornia Supreme Court
Parties, 442 P.2d 685, 75 P.U.R.3d 385 Fred E. HUNTLEY et al., Petitioners, v. PUBLIC UTILITIES COMMISSION of the State of California, Respondent; PACIFIC TELEPHONE AND TELEGRAPH COMPANY, Real Party in Interest.

Reed H. Bement and Marshall W. Krause, San Francisco, for petitioners.

Mary Moran Pajalich, Roderick B. Cassidy, Timothy E. Treacy and W. Roche, San Francisco, for respondent.

Pillsbury, Madison & Sutro, John A. Sutro, Noble K. Gregory and George A. Sears, San Francisco, for real party in interest.

PETERS, Justice.

Petitioners, American Civil Liberties Union of Northern California and the real party in interest Fred E. Huntley, seek review of Decision No. 72568 of the Public Utilities Commission modifying and approving as modified revisions of tariff schedules Nos. 32-T and 36-T of Pacific Telephone and Telegraph Company (hereafter referred to as PT&T). The schedules provide that subscribers who transmit recorded messages over its facilities must include in the recording the name of the individual or organization responsible for the message and the address at which the service is rendered. The commission later modified the tariff schedules by excusing the message sender from furnishing his address, if the address is published in a current directory listing. Failure to comply with these provisions is cause for termination of the automatic recording service.

The regulation traces its ancestry to complaints made by various organizations to the Federal Communications Commission (hereafter referred to as FCC) about anonymous recorded telephone messages. The tenor of the complaints was that the messages were often abusive or libelous attacks on individuals and institutions, and that anonymity encouraged such irresponsible action. Congressional hearings followed to explore possible legislation. In response to an FCC request American Telephone and Telegraph Company advised its subsidiaries (which include PT&T) to make available upon inquiry the names and addresses of subscribers to automatic announcement services. Since October 1965 PT&T has followed this policy.

In an attempt to avoid pending federal legislation, PT&T and the other Bell System companies prepared tariff provisions requiring that recorded public announcements include the names and addresses of those responsible for the message. Similar regulations were approved by the appropriate state agencies in 46 states and are now in effect.

The California regulation originated on December 30, 1965, when PT&T filed Advice Letter No. 9212 with the Public Utilities Commission (hereafter referred to as the commission) proposing to revise its tariff schedules Nos. 32-T and 36-T so as to require its subscribers to include in their recorded announcement their names and the address at which the service is provided. Failure to comply with this requirement, it was proposed, would be cause for termination of that particular service. Responding to complaints to the proposal, the commission initiated investigatory proceedings, ultimately resulting in the decision now before this court upholding the constitutionality and lawfuless of the regulation.

PT&T has about 5,700 automatic answering devices in operation. The devices fall into three categories: automatic answering (about 2,300 installations); automatic answering and recording (about 3,200 installations); and recorder coupler (about 200 installations). Depending upon the nature of the equipment, the caller may just hear a message, record a message or hear and record a message. Pre-recorded messages are typically used by theaters to announce current programs, by religious organizations to offer prayers, by commercial organizations to advertise services or products, and by individuals or organizations to present their views on current topics.

The regulation in question adversely affects only about 5 percent of those using the automatic answering services because the vast majority of the subscribers are anxious to publicize their sponsorship of the messages, and so are willing to include their name and address in their announcing message.

Petitioner Huntley, under the slogan 'Let Freedom Ring,' uses the service to declare his views on certain subjects which co-petitioner American Civil Liberties Union characterizes as 'superpatriotic or conservative.' Although Huntley identified his message with the Let Freedom Ring organization, he did not give his name or any address, and refuses to include such information in his announcing message.

In reviewing orders or decisions of the commission challenged on constitutional grounds, this court is required to exercise its independent judgment on the law and the facts. The findings or conclusions of the commission on the constitutional question are not final. (Pub. Util. Code, § 1760.) This does not mean, however, that this court should disregard the weight properly attached to findings after a hearing and evidence. (Pacific Tel. & Tel. Co. v. Public Util. Com., 62 Cal.2d 634, 646, 44 Cal.Rptr. 1, 401 P.2d 353.)

In the instant case, the parties do not present any factual questions. Petitioners urge that the identification requirement required by the commission unduly violates freedom of speech as guaranteed by the First and Fourteenth Amendments of the United States Constitution any by article I, section 9 of the California Constitution.

Freedom of speech assured by the First Amendment is one of the basic tenets of a free society. As aptly stated by Justice Holmes in 1919, 'when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.' (Abrams v. United States, 250 U.S. 616, 630--631, 43 S.Ct. 17, 22, 63 L.Ed. 1173 (dissenting opinion).)

Freedom of speech encompasses more than simply the right to be protected from censorship of content. It extends to communication in its most fundamental sense. The First Amendment embraces both the right to disseminate information (Martin v. Struthers, 319 U.S. 141, 143, 146--147, 63 S.Ct. 862, 87 L.Ed. 1313; Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949) and necessarily the right to receive it (Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398).

Improper restraints on communication may vary in form and degree, but all have the effect of restricting the dissemination of ideas. The clearest abuse is an outright prohibition of a constitutionally protected form of speech. (Martin v. Struthers, supra, 319 U.S. 141, 63 S.Ct. 862; Wirta v. Alameda-Contra Costa Transit Dist., 68 A.C. 46, 64 Cal.Rptr. 430, 434 P.2d 982.) Regulation short of absolute prohibition is also invalid when expression is made dependent on state approval by the obtaining of a permit (Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 267) or is conditioned upon obtaining the approval of a board of censors (Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649). Nor does the restriction become permissible because it merely limits the manner of expression rather than the initial right to communicate. (Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Wollam v. City of Palm Springs, 59 Cal.2d 276, 288, 29 Cal.Rptr. 1, 379 P.2d 481.)

First Amendment freedoms are not only protected from patent restraints, but also from more subtle forms of governmental interference. (E.g., Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 4 L.Ed.2d 480.) In the association cases the compelled disclosure of membership was condemned as an unwarranted infringement of First Amendment rights. (Bates v. City of Little Rock, supra, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; N.A.A.C.P. v. Alabama, 357 U.S. 449.) It has also been recognized that anonymity of affiliation may be indispensable to free association. In both Bates v. City of Little Rock and N.A.A.C.P. v. Alabama, it was apparent that disclosure would subject the members of the N.A.A.C.P. to physical, economic, and social reprisals, deterring present members from associating and dissuading others from joining. The court emphasized that even though the immediate restraint was harassment by the Public, the state could not disclaim responsibility for 'merely' compelling disclosure. 'The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power * * * that private action takes hold.' (N.A.A.C.P. v. Alabama, supra, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488.)

There can be no doubt that disclosure requirements may deter free speech. It must be remembered that the right of freedom of speech is primarily intended to protect minority views. 'The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance.' (Martin v. Struthers, supra, 319 U.S. 141, 143, 63 S.Ct. 862, 87 L.Ed. 1313.)

The majority may freely assert its beliefs and is secured freedom of speech by the very fact if its mathematical majority. It is the minority, whether of the left or the right, which must overcome accepted views. To succeed, the minority must persuade others until, as is the nature of a democratic society, it hopefully attains the status of the majority. In doing so, the minority will frequently be subjected to criticism and debate, a necessary...

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