Consolidated Edison Co. of New York v. Public Service Commission

447 U.S. 530, 100 S. Ct. 2326, 65 L. Ed. 2d 319, 1980 U.S. LEXIS 6, 34 P.U.R.4th 208, 6 Media L. Rep. (BNA) 1518

• Court: Supreme Court of the United States
• Decided: June 20, 1980
• Docket: 79-134
• Status: Published

Opinions

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 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 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 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 matters of public concern. . . .” Thornhill v. 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.

Ill

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 ample alternative channels for communication. See Linmark Associates, Inc. v. Willingboro, 431 U. S. 86, 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 interests in regulating traffic, securing public order, and insuring that simultaneous parades did not prevent all speakers from being heard. Id., at 576. Similarly, in Grayned v. City of Rockford, 408 U. S. 104 (1972), we upheld an antinoise regulation prohibiting demonstrations that would disturb the good order of an educational facility. The narrowly drawn restriction constitutionally advanced the city’s interest “in having an undisrupted school session conducive to the students’ learning. . . .” Id., at 119. Thus, the essence of time, place, or manner regulation lies in the recognition that various methods of speech, regardless of their content, may frustrate legitimate governmental goals. No matter what its message, a roving sound truck that blares at 2 a. m. disturbs neighborhood tranquility.

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 or subject matter of speech.⁴

The Commission does not pretend that its action is unrelated to the content or subject matter of bill inserts. Indeed, it has undertaken to suppress certain bill inserts precisely because they address controversial issues of public policy. The Commission allows inserts that present information to consumers on certain subjects, such as energy conservation measures, but it forbids the use of inserts that discuss public controversies. The Commission, with commendable candor, justifies its ban on the ground that consumers will benefit from receiving “useful” information, but not from the prohibited information. See App. to Juris. Statement 66a-67a. The Commission’s own rationale demonstrates that its action cannot be upheld as a content-neutral time, place, or manner regulation.

B

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 from a general prohibition on picketing at a school even though the ban would have reached both pro- and anti-union demonstrations. If the marketplace of ideas is to remain free and open, governments must not be allowed to choose “which issues are worth discussing or debating . . . 408 U. S., at 96. See also Erznoznik v. City of Jacksonville, supra, at 214-215; Tinker v. Des Moines School District, 393 U. S. 503, 510-511 (1969). To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.

Nevertheless, governmental regulation based on subject matter has been approved in narrow circumstances.⁵ The court below relied upon two cases in which this Court has recognized that the government may bar from its facilities certain speech that would disrupt the legitimate governmental purpose for which the property has been dedicated. 47 N. Y. 2d, at 107, 390 N. E. 2d, at 755. In Greer v. Spock, 424 U. S. 828 (1976), we held that the Federal Government could prohibit partisan political speech on a military base even though civilian speakers had been allowed to lecture on other subjects. See id., at 838, n. 10.⁶ In Lehman v. Shaker Heights, 418 U. S. 298 (1974) (opinion of Blackmun, J.), a plurality of the Court similarly concluded that a city transit system that rented space in its vehicles for commercial advertising did not have to accept partisan political advertising. The municipality’s refusal to accept political advertising was based upon fears that partisan advertisements might jeopardize long-term commercial revenue, that commuters would be subjected to political propaganda, and that acceptance of particular political advertisements might lead to charges of favoritism. Id., at 302, 304.⁷

Greer and Lehman properly are viewed as narrow exceptions to the general prohibition against subject-matter distinctions. In both cases, the Court was asked to decide whether a public facility was open to all speakers.⁸ The plurality in Lehman and the Court in Greer concluded that partisan political speech would disrupt the operation of governmental facilities even though other forms of speech posed no such danger.

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 Commission as a forum from which to promulgate its views. Rather, it seeks merely to utilize its own billing envelopes to promulgate its views on controversial issues of public policy. The Commission asserts that the billing envelope, as a necessary adjunct to the operations of a public utility, is subject to the State’s plenary control. To be sure, the State has a legitimate regulatory interest in controlling Consolidated Edison’s activities, just as local governments always have been able to use their police powers in the public interest to regulate private behavior. See New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam). But the Commission’s attempt to restrict the free expression of a private party cannot be upheld by reliance upon precedent that rests on the special interests of a government in overseeing the use of its property.

C

Where 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. 516, 524 (1960).⁹ The Commission argues finally that its prohibition is necessary (i) to avoid forcing Consolidated Edison’s views on a captive audience, (ii) to allocate limited resources in the public interest, and (iii) to ensure that ratepayers do not subsidize the cost of the bill inserts.

The State Court of Appeals largely based its approval of the prohibition upon its conclusion that the bill inserts intruded upon individual privacy.¹⁰ The court stated that the Commission could act to protect the privacy of the utility’s customers because they have no choice whether to receive the insert and the views expressed in the insert may inflame their sensibilities. 47 N. Y. 2d, at 106-107, 390 N. E. 2d, at 755. But the Court of Appeals erred in its assessment of the seriousness of the intrusion.

Even if a short exposure to Consolidated Edison’s views may offend the sensibilities of some consumers, the ability of government “to 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 does not permit the government to prohibit speech as intrusive unless the “captive” audience cannot avoid objectionable speech.

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 truck, 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.¹¹

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 differ from broadcast frequencies in two ways. First, a broadcaster communicates through use of a scarce, publicly owned resource. No person can broadcast without a license, whereas all persons are free to send correspondence to private homes through the mails. Thus, it cannot be said that billing envelopes are a limited resource comparable to the broadcast spectrum. Second, the Commission has not shown on the record before us that the presence of the bill inserts at issue would preclude the inclusion of other inserts that Consolidated Edison might be ordered lawfully to include in the billing envelope. Unlike radio or television stations broadcasting on a single frequency, multiple bill inserts will not result in a “cacophony of competing voices.” Id., at 376.

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 order 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.¹² Mere speculation of harm does not constitute a compelling state interest. See Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 222-223 (1967).¹³

IV

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, nor 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, 435 U. S., at 795.

The decision of the New York Court of Appeals is

Reversed.

1 Nor does Consolidated Edison’s status as a privately owned but government regulated monopoly preclude its assertion of First Amendment rights. See Central Hudson Gas & Electric Corp. v. Public Service Comm’n, post, at 566-568. We have recognized that the speech of heavily regulated businesses may enjoy constitutional protection. See, e. g., Friedman v. Rogers, 440 U. S. 1 (1979); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 763-765 (1976). Consolidated Edison’s position as a regulated monopoly does not decrease the informative value of its opinions on critical public matters. See generally Public Media Center v. FCC, 190 U. S. App. D. C. 425, 428, 429, 587 F. 2d 1322, 1325, 1326 (1978); Pacific Gas & Electric Co. v. City of Berkeley, 60 Cal. App. 3d 123, 127-129, 131 Cal. Rptr. 350, 352-353 (1976).

2 Freedom of speech also protects the individual’s interest in self-expression. First National Bank of Boston v. Bellotti, 435 U. S. 765, 777, n. 12 (1978); see T. Emerson, The System of Freedom of Expression 6 (1970).

3 See also A. Meiklejohn, Political Freedom 35-36 (1965).

4 See also Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 93-94 (1977); Papish v. University of Missouri Curators, 410 U. S. 667, 670 (1973) (per curiam).

5 For example, when courts are asked to determine whether a species of speech is covered by the First Amendment, they must look to the content of the expression. See Central Hudson Gas & Electric Corp. v. Public Service Comm’n, post, at 561-563 (commercial speech); Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974) (libel); Miller v. California, 413 U. S. 15 (1973) (obscenity); Chaplinsky v. New Hampshire, 315 U. S. 568, 572-573 (1942) (fighting words). Compare FCC v. Pacifica Foundation, 438 U. S. 726, 746-747 (1978) (opinion of Stevens, J.), and Young v. American Mini Theatres, Inc., 427 U. S. 50, 70-71 (1976) (opinion of Stevens, J.), with FCC v. Pacifica Foundation, supra, at 761 (opinion of Powell, J.), 762-763 (Brennan, J., dissenting), and Young v. American Mini Theatres, Inc., supra, at 87 (Stewart, J., dissenting) (indecent speech).

6 The necessity for excluding partisan speech was based upon the traditional policy “of keeping official military activities . . . wholly free of entanglement with partisan political campaigns of any kind.” 424 U. S., at 839. Thus, the Court’s decision construed the public right of access in light of “the unique character of the Government property upon which the expression is to take place.” Id., at 842 (Powell, J., concurring).

7 Mr. Justice Douglas, who concurred in the judgment in Lehman, did not view “the content of the message as relevant either to petitioner’s right to express it or to the commuters’ right to be free from it.” 418 U. S., at 308. Rather, Mr. Justice Douglas upheld the municipality’s actions because commuters were a captive audience. Id., at 306-308. The Consolidated Edison customers who receive bill inserts are not a captive audience. See infra, at 541-542. Four Justices dissented in Lehman on the ground that the municipality could not' discriminate among advertisers. 418 U. S., at 308, 309 (Brennan, J., joined by Stewart, Marshall, and Powell, JJ., dissenting).

8 Lehman and Greer represent only one category of this Court’s cases dealing with rights of access to governmental property. Compare Tinker v. Des Moines School District, 393 U. S. 503, 512-513 (1969), and Hague v. CIO, 307 U. S. 496, 515-516 (1939) (opinion of Roberts, J.), with Adderley v. Florida, 385 U. S. 39 (1966).

9 The Commission contends that its order should be judged under the standard of United States v. O’Brien, 391 U. S. 367, 377 (1968), because the order “is only secondarily concerned with the subject matter of Consolidated Edison communications. . . .” Brief for Appellee 9, n. 3. The O’Brien test applies to regulations that incidentally limit speech where “the governmental interest is unrelated to the suppression of free expression. . . .” 391 U. S., at 377. The bill insert prohibition does not further a governmental interest unrelated to the suppression of speech. Indeed, the court below justified the ban expressly on the basis that the speech might be harmful to consumers. 47 N. Y. 2d 94, 106-107, 390 N. E. 2d 749, 755 (1979).

10 The State Court of Appeals also referred to the alternative means by which Consolidated Edison might promulgate its views on controversial issues of public policy. Although a time, place, and manner restriction cannot be upheld without examination of alternative avenues of communication open to potential speakers, see Linmark Associates, Inc. v. Willing-boro, 431 U. S., at 93, we have consistently rejected the suggestion that a government may justify a content-based prohibition by showing that speakers have alternative means of expression. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S., at 757, n. 15; Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 556 (1975) ; Spence v. Washington, 418 U. S. 405, 411, n. 4 (1974) {per curiam).

11 Although this Court has recognized the special privacy interests that attach to persons who seek seclusion within their own homes, see Rowan v. Post Office Department, 397 U. S. 728, 737 (1970), the arrival of a billing envelope is hardly as intrusive as the visit of a door-to-door solicitor. Yet the Court has rejected the contention that a municipality may ban door-to-door solicitors because they may invade the privacy of households. Martin v. City of Struthers, 319 U. S. 141, 146-147 (1943). Even if there were a compelling state interest in protecting consumers against overly intrusive bill inserts, it is possible that the State could achieve its goal simply by requiring Consolidated Edison to stop sending bill inserts to the homes of objecting customers. See Rowan v. Post Office Department, supra.

12 In its denial of petitions for rehearing, the Commission re-emphasized that it would impose the ban without regard to allocation of costs between shareholders and ratepayers. App. to Juris. Statement 67a, n. 1.

13 The Commission also contends that ratepayers cannot be forced to support the costs of Consolidated Edison’s bill inserts. Because the Commission has failed to demonstrate that such costs could not be allocated between shareholders and ratepayers, we have no occasion to decide whether the rule of Abood v. Detroit Board of Education, 431 U. S. 209 (1977), would prevent Consolidated Edison from passing on to ratepayers the costs of bill inserts that discuss controversial issues of public policy.