Consolidated Edison Co. v. Public Svc. Comm’n, 447 U.S. 530 (1980)

Consolidated Edison Company of New York v.

Public Service Commission of New York
No. 79-134

Argued March 17, 1980
Decided June 20, 1980
447 U.S. 530

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 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.