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.
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
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.
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
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).
This Court has emphasized that the First Amendment "embraces at the least the liberty to discuss publicly and truthfully all matters of public concern. . . ." Thornhill v.
The Commission's ban on bill inserts in 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.
This Court has recognized the validity of reasonable time, place, or manner regulations that serve a significant governmental interest and leave ample alternative channels for communication. See Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93 (1977); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976). See also Kovacs v. Cooper, 336 U.S. 77, 104 (1949) (Black, J., dissenting). In Cox v. New Hampshire, 312 U.S. 569 (1941), this Court upheld a licensing requirement for parades through city streets. The Court recognized that the regulation, which was based on time, place, or manner criteria, served the municipality's legitimate interest in regulating traffic, securing public order, and insuring that simultaneous parades did not prevent
A restriction that regulates only the time, place, or manner of speech may be imposed so long as it is reasonable. But when regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited "merely because public officials disapprove the speaker's views." Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring in result). As a consequence, we have emphasized that time, place, and manner regulations must be "applicable to all speech irrespective of content." Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975); see Carey v. Brown, ante, at 470. Governmental action that regulates speech on the basis of its subject matter "`slip[s] from the neutrality of time, place, and circumstance into a concern about content.'" Police Department of Chicago v. Mosley, 408 U.S. 92, 99 (1972), quoting Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 29. Therefore, a constitutionally permissible time, place, or manner restriction may not be based upon either the content of subject matter of speech.
The Commission next argues that its order is acceptable because it applies to all discussion of nuclear power, whether pro or con, in bill inserts. The prohibition, the Commission contends, is related to subject matter rather than to the views of a particular speaker. Because the regulation does not favor either side of a political controversy, the Commission asserts that it does not unconstitutionally suppress freedom of speech.
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. As a general matter, "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, supra, at 95; see Cox v. Louisiana, 379 U.S. 536, 580-581 (1965) (opinion of Black, J.). In Mosley, we held that a municipality could not exempt labor picketing form a general prohibition on picketing at a school even though the ban would have reached both pro-and anti-union demonstrations. If the marketplace
Nevertheless, governmental regulation based on subject matter has been approved in narrow circumstances.
Greer and Lehman properly are viewed as narrow exceptions to the general prohibition against subject-matter distinctions. In both cases, the Court in was asked to decide whether a public facility was open to all speakers.
The analysis of Greer and Lehman is not applicable to the Commission's regulation of bill inserts. In both cases, a private party asserted a right of access to public facilities. Consolidated Edison has not asked to use the offices of the
When a government restricts the speech of a private person, the state action may be sustained only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest. See First National Bank of Boston v. Bellotti, 435 U. S., at 786; Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam). See also Bates v. Little Rock, 361 U.S. 524 (1960).
The State Court of Appeals largely based its approval of the prohibition upon its conclusion that the bill inserts intruded upon individual privacy.
Even if a short exposure to Consolidated Edison's views may offend the sensibilities of some consumers, the ability of government "shut off discourse solely to protect others from hearing it [is] dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner." Cohen v. California, 403 U. S., at 21. A less stringent analysis would permit a government to slight the First Amendment's role "in affording the public access to discussion, debate, and the dissemination of information and ideas." First National Bank of Boston v. Bellotti, supra, at 783; see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (BRENNAN, J., concurring). Where a single speaker communicates to many listeners, the First Amendment
Passengers on public transportation, see Lehman v. Shaker Heights, 418 U. S. at 307-308 (Douglas. J., concurring in judgment), or residents of a neighborhood disturbed by the raucous broadcasts from a passing sound track, cf. Kovacs v. Cooper, 336 U.S. 77 (1949), may well be unable to escape an unwanted message. But customers who encounter an objectionable billing insert may "effectively avoid further bombardment of their sensibilities simply by averting their eyes." Cohen v. California, supra at 21. See Spence v. Washington, 418 U.S. 405, 412 (1974) (per curiam). The customer of Consolidated Edison may escape exposure to objectionable material simply by transferring the bill insert from envelope to wastebasket.
The Commission contends that because a billing envelope can accommodate only a limited amount of information, political messages should not be allowed to take the place of inserts that promote energy conservation or safety, or that remind consumers of their legal rights. The Commission relies upon Red Lion Broadcasting Co. v. FCC. supra, in which the Court held that the regulation of radio and television broadcast frequencies permits the Federal Government to exercise unusual authority over speech. But billing envelopes
Finally, the Commission urges that its prohibition would prevent ratepayers from subsidizing the costs of policy-oriented bill inserts. But the Commission did not base its orders on an inability to allocate costs between the shareholders of Consolidated Edison and the ratepayers. Rather, the Commission stated that "using bill inserts to proclaim a utility's viewpoint on controversial issues (even when the stockholder pays for it in full) is tantamount to taking advantage of a captive audience. . . ." App. to Juris. Statement 43a (emphasis added). Accordingly, there is no basis on this record to assume that the Commission could not exclude the cost of these bill inserts from the utility's rate base.
The Commission's suppression of bill inserts that discuss controversial issues of public policy directly infringes the freedom of speech protected by the First and Fourteenth Amendments. The state action is neither a valid time, place, or manner restriction, not a permissible subject-matter regulation, nor a narrowly drawn prohibition justified by a compelling state interest. Accordingly, the regulation is invalid. First National Bank of Boston v. Bellotti, 453 U. S., at 795.
The decision of the New York Court of Appeals is
MR. JUSTICE MARSHALL, concurring.
I join the Court's opinion. I write separately to emphasize that our decision today in no way address the question whether the Commission may exclude the costs of bill inserts from the rate base, nor does it intimate any view on the appropriateness of any allocation of such costs the Commission might choose to make. Ante, at 543. The Commission did not rely on the argument that the use of bill inserts required ratepayers to subsidize the dissemination of management's view in issuing its order, and we therefore are precluded from sustaining the order on that ground. Cf. SEC v. Chenery Corp., 318 U.S. 80, 95 (1943) ("[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained"); FPC v. Texaco Inc., 417 U.S. 380, 397 (1974); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249 (1972).
MR. JUSTICE STEVENS, concurring in the judgment.
Any student of history who has been reprimanded for talking about the World Series during a class discussion of the
There are, in fact, many situations in which the subject matter, or, indeed, even the point of view of the speaker, may provide a justification for a time, place, and manner regulation. Perhaps the most obvious example is the regulation of oral argument in this Court; the appellant's lawyer precedes his
Instead of trying to justify our conclusion by reasoning from honeycombed premises, I prefer to identify the basis of decision in more simple terms. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 65-66. A regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a "law . . . abridging the freedom of speech, or of the press."
The only justification for the regulation relied on by the New York Court of Appeals is that the utilities' bill inserts may be "offensive" to some of their customers.
Accordingly, I concur in the judgment of the Court.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST as to Parts I and II joins, dissenting.
My dissent in this case in no way indicates any disapprobation on my part of the precious rights of free speech (so
But I cannot agree with the Court that the New York Public Service Commission's ban on the utility bill insert somehow deprives the utility of its First and Fourteenth Amendment rights. Because of Consolidated Edison's monopoly status and its rate structure, the use of the insert amounts to an exaction from the utility's customers by way of forced aid for the utility's speech. And, contrary to the Court's suggestion, an allocation of the insert's cost between the utility's shareholders and the ratepayers would not eliminate this coerced subsidy.
A public utility is a state-created monopoly. See, e. g., N. Y. Pub. Serv. Law § 68 (McKinney 1955); Jones, Origins of the Certificate of Public Convenience and Necessity; Developments in the states 1870-1920, 79 Colum. L. Rev. 426, 458-461 (1979); Comment, Utility Rates, Consumers, and the New York State Public Service Commission, 39 Albany L. Rev. 707, 709-714 (1975). Although monopolies generally are against the public policies of the United States and of the State of New York, see, e. g., N. Y. Gen. Bus. Law § 340 (McKinney 1968 and Supp. 1979-1980), Consolidated Edison and other utilities are permitted to operate as monopolies because of a determination by the State that the public interest is better served by protecting them from competition. See 2 A. Kahn, The Economics of Regulation 113-171 (1971).
The rates authorized by the Public Service Commission may reflect only the costs of providing necessary services to customers plus a reasonable rate of return to the utility's shareholders. See, e. g., Comment, 39 Albany L. Rev., at 719-723. The entire bill payment system—meters, meter-reading, bill mailings, and bill inserts—are paid for by the customers under Commission rules permitting recovery of necessary operating expenses. Uniform System of Accounts— Expense Accounts—Customer Account Expenses, 16 N. Y. C. R. R. §§ 901-906 (1974). Under the laws of New York and other States, however, a public utility cannot include in the rate base the costs of political advertising and lobbying. See, e. g., Uniform System of Accounts, Account 426.4, Expenditures for Certain Civic, Political and Related Activities, 16 N. Y. C. R. R., ch. II, subch. F (1976); Southern Bell Tel. & Tel. Co. v. Louisiana Pub. Serv. Comm'n, 239 La. 175, 207-209, 118 So.2d 372, 384 (1960); Southwestern Bell Tel. Co., 19 P. U. R. 4th 1, 28-29 (Kan. Corp. Comm'n 1977); Boushey v. Pacific Gas & Elec. Co., 10 P. U. R. 4th 23 (Cal. Pub. Util. Comm'n 1975) (banning controversial bill inserts); Cascade Natural Gas Corp., 8 P. U. R. 4th
The Commission concluded, properly in my view, that use of the billing envelope to distribute management's pamphlets amounts to a forced subsidy of the utility's speech by the ratepayers.
I do not accept appellant's argument that preventing a "free ride" for the utility's messages is not a substantial, legitimate state concern. Even though the free ride may cost the ratepayers nothing additional by way of specific dollars, it still qualifies as forced support of the utility's speech. See, e. g., Boushey v. Pacific Gas & Elec. Co., 10 P. U. R. 4th, at 27; Note, Utility Companies and the First Amendment: Regulating the Use of Political Inserts in Utility Bills, 64 Va. L. Rev, 921, 926 (1978). If the State compelled an individual to help defray the utility's speech expenses, that compulsion surely would violate that person's First and Fourteenth Amendment rights. Abood v. Detroit Board of Education, 431 U.S. 209, 233-235 (1977); id., at 256 (POWELL, J., concurring in judgment). The fact that providing such aid costs the individual nothing extra does not make the compulsion any less offensive, See Wooley v. Maynard, 430 U.S. 705, 714-715 (1977); Buckley v. Valeo, 424 U.S. 1, 22-23, 36 (1976) (recognizing that permitting a candidate to use real or personal property provided material financial assistance to the candidate); id., at 91, n. 124.
Of course, a private business does not deprive an individual of his constitutional rights unless state action is involved. Although the State has given utilities their monopoly power and thus contributed to a situation in which coerced support of the utility's speech is possible, the state-action requirement of the Fourteenth Amendment may not be met in this situation. See Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
I do not find it necessary, however, to decide whether state action in the Fourteenth Amendment sense has occurred here. It is not necessary to decide whether the ratepayers' First and Fourteenth Amendment rights have been infringed in order to determine whether the State has the power to prevent the utility from exacting aid from the ratepayers in dissemination of a message with which they do not all agree. Even if the State is not so entwined in the activities of Consolidated Edison to meet the state-action requirement, the State has made a monopoly possible by preventing others from competing with the utility. Thus the State is legitimately concerned with preventing the utility from taking advantage of this monopoly power to force consumers to subsidize dissemination of its viewpoint on political issues.
The Commission maintains that no allocation short of charging all the fixed costs of mailing the bills to the utility's shareholders will eliminate the problem of forced subsidization of the utility's speech. The Commission is obviously correct that the utility will obtain a partial free ride for its message even if the shareholders are charged with part of the mailing costs in addition to the costs directly attributable to the inserts. Consumers would still be forced to aid in the dissemination of the utility's message by making the utility's distribution costs less than they otherwise would be.
Charging all the mailing costs to the shareholders is equivalent, as a practical matter, to the Commission's ban on political inserts. The utility wants to use the inserts only because they are less expensive than a separate mailing.
Because ratepayers bear the cost of this medium of communication, the utility's claim to use the bill envelope for its own purposes is not analogous to that of a private letter-writer, or of a nonmonopolistic business, whose customers can turn elsewhere if they object to inserts in their bills that their sales dollars help to finance. Cf. First National Bank of Boston v. Bellotti, 435 U.S. 765, 794, n. 34 (1978). This, therefore, is not a typical prohibition of a speaker's attempt "merely to utilize its own [property] to promulgate its views." Ante, at 540. Rather, this is an attempt by the utility to appropriate and make convenient use of property, for which the public is compelled to pay, for the utility's sole benefit. The Commission's ban on bill inserts does not restrict the utility from using the shareholders' resources to finance communication of its viewpoints on any topic. Consolidated Edison is completely free to use the mails and any other medium of communication on the same basis as any other speaker. The order merely prevents the utility from relying on a forced subsidy from the ratepayers. This leads me to conclude that the State's attempt here to protect the ratepayers from unwillingly financing the utility's speech and to preserve the billing envelope for the sole benefit of the customers who pay for it does not infringe upon the First and Fourteenth Amendment rights of the utility.
I might observe, additionally, that I am hopeful that the Court's decision in this case has not completely tied a State's
First, it appears that New York and other States might use their power to define property rights so that the billing envelope is the property of the ratepayers and not of the utility's shareholders. Cf. Pruneyard Shopping Center v. Robins, ante, p. 74. Since it is the ratepayers who pay for the billing packet, I doubt that the Court would find a law establishing their ownership of the packet violative of either the Takings clause or the First and Fourteenth Amendments. If, under state law, the envelope belongs to the customers, I do not see how restricting the utility from using it could possibly be held to deprive the utility of its rights.
Second, the opinion leaves open the issue of cost allocation. The Commission could charge the utility's shareholders all the costs of the envelopes and postage and of creating and maintaining the mailing list, and charge the consumers only the cost of printing and inserting the bill and the consumer service insert. See Long Island Lighting Co. v. New York State Public Service Comm'n, No. 77 C 972 (EDNY, Mar. 30, 1979), reproduced in App. to Brief for Long Island Lighting company as Amicus Curiae 22a. There is no reason that the shareholders should be given a free ride for their pamphlets, rather than the customers to be given a free ride for their bills. Such an allocation would eliminate the most offensive aspects of the forced subsidization of the utility's speech. But see n. 3, supra.
Because I agree with the Appellate Division of the New York Supreme Court, that "[i]n the battle of ideas, the utilities are not entitled to require the consumers to help defray their expenses," 63 App. Div 2d 364, 368, 407 N.Y.S.2d 735, 737 (1978), I respectfully dissent.
See generally Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L. J. 727 (1980); Note, Pacifica Foundation v. FCC: "Filthy Words," the First Amendment and the Broadcast Media, 78 Colum L. Rev. 164 (1978).
"Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ."
In a series of decisions beginning with Gitlow v. New York, 268 U.S. 652, this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the Federal Government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500, n. 8.
"So long as a legislature does not prescribe what ideas may be noisily expressed and what may not be, nor discriminate among those who would make inroads upon the public peace, it is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection. Without such opportunities freedom of thought becomes a mocking phrase, and without freedom of thought there can be no free society."
In his dissenting opinion, Mr. Justice Rutledge, referring to sound trucks in public places, stated that he had "no doubt of state power to regulate their abuse in reasonable accommodation, by narrowly drawn statutes, to other interests concerned in use of the streets and in freedom from public nuisance." Id., at 105.
"The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content. Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. Roth v. United States, 354, U. S. 476. But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content—or even to the fact that it satirized contemporary attitudes about four-letter words—First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: `[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' Chaplinsky v. New Hampshire, 315 U. S., at 572." (Footnotes omitted.)
See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 84 (BRENNAN, J., dissenting): "[T]he obscenity of any particular item may depend upon nuances of presentation and the context of its dissemination. . . . Redrup [v. New York, 386, U. S. 767,] itself suggested that obtrusive exposure to unwilling individuals, distribution to juveniles, and `pandering' may also bear upon the determination of obscenity."
Even viewing the restriction as merely a neutral subject-matter regulation (controversial issues generally) as may have been intended initially by the Commission, rather than a restriction of a particular viewpoint (the utilities' opinions on those issues), I still believe it to be unconstitutional. For the use of the "controversial" nature of speech as the touchstone for its regulation threatens a value at the very core of the First Amendment, the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." See New York Times Co. v. Sullivan, 376 U.S. 254, 270.
I cannot agree that the Commission did not rely on the "forced subsidy" justification. In its opinion denying petitions for rehearing, the Commission stated:
"We note also that where the ratepayer's bill is accompanied by political advertisement, the political material is, absent allocation, getting a free ride; the utility is deriving the economic benefit of postage, envelope, labor and overhead involved in the billing process. And even if an allocation of the expenses could be made, the actual cost of enclosing such material in the bill itself does not approach the one-sided benefit to the management of being able to use the unique billing process in presenting its side of the controversy. It is certainly questionable whether ratepayers should be compelled to support views with which they do not agree. See Abood v. Detroit Board of Education, [431 U.S. 209] (1977)." App. to Juris Statement 67a, n. 1.