PACIFIC GAS & ELECTRIC CO. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA ET AL.
No. 84-1044
Supreme Court of the United States
Argued October 8, 1985—Decided February 25, 1986
Mark Fogelman argued the cause for appellees. With him on the brief for appellee Public Utilities Commission of California were Janice E. Kerr and Hector Anninos. Jerome B. Falk, Jr., Steven L. Mayer, and Frederic D. Woocher filed a brief for appellees Toward Utility Rate Normalization et al.*
*Briefs of amici curiae urging reversal were filed for the American Gas Association by George H. Lawrence, David J. Muchow, John H. Myler, and Carol A. Smoots; for Bell Atlantic Telephone Companies by Daniel A. Rezneck and Robert A. Levetown; for Consolidated Edison Co. of New York, Inc., by Joy Tannian, Peter P. Garam, and Bernard L. Sanoff; for the California Chamber of Commerce by John R. Reese; for the Edison Electric Institute by Robert L. Baum, Peter B. Kelsey, William L. Fang, and James H. Byrd; for the Gas Distributors Information Service by Paul A. Lenzini; for the Legal Foundation of America by David Crump, Jean F. Powers, and Bradley Ford Stuebling; for the Mid-America Legal Foundation by John M. Cannon, Susan W. Wanat, and Ann Plunkett Sheldon; for the Mountain States Legal Foundation by Constance E. Brooks, K. Preston Oade, Jr., and Casey Shpall; for National Fuel Gas Distribution Corp. et al. by Stanley W. Widger, Jr., Richard N. George, and Thomas C. Hutton; for Pacific Bell et al. by Philip B. Kurland, John J. Coffey, Robert V. R. Dalenberg, Margaret deB. Brown, Thomas D. Clarke, Jeffrey E. Jackson, and Richard M. Cahill; for the Pacific Legal Foundation et al. by Ronald A. Zumbrun and John H. Findley; for Pacific Northwest Bell Telephone Co. et al. by Robert F. Harrington and Thomas H. Nelson; for Sierra Pacific Power Co. by Boris H. Lakusta, John Madariaga, and James D. Salo; for the Washington Legal Foundation by Daniel C. Popeo and Paul D. Kamenar; and for the Wisconsin State Telephone Association et al. by Robert A. Christensen, Ray J. Riordan, Jr., Philip L. Wettengel, Floyd S. Keene, and Renee M. Martin.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by John Van de Kamp, Attorney General of California, Herschel T. Elkins, Senior Assistant Attorney General, Michael R. Botwin, Deputy Attorney General, Joseph I. Lieberman, Attorney General of Connecticut, William B. Gundling, Assistant Attorney General, Elliot F. Gerson, Deputy Attorney General, Linley E. Pearson, Attorney General of Indiana, William E. Daily, Deputy Attorney General, William J. Guste, Jr., Attorney General of Louisiana, Kendall L. Vick, Assistant Attorney General, Mike Greely, Attorney General of Montana, Patricia
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.
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
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
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 Commis-
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.
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., supra, at 533-535.
There is no doubt that under these principles appellant‘s newsletter Progress receives the full protection of the First Amendment. Lovell v. Griffin, 303 U. S. 444, 452 (1938). In appearance no different from a small newspaper, Progress’ contents range from energy-saving tips to stories about wildlife conservation, and from billing information to recipes. App. to Juris. Statement A-183 to A-190. Progress thus
The Commission recognized as much, but concluded that requiring appellant to disseminate TURN‘s views did not infringe upon First Amendment rights. It reasoned that appellant remains free to mail its own newsletter except for the four months in which TURN is given access. The Commission‘s conclusion necessarily rests on one of two premises: (i) compelling appellant to grant TURN access to a hitherto private forum does not infringe appellant‘s right to speak; or (ii) appellant has no property interest in the relevant forum and therefore has no constitutionally protected right in restricting access to it. We now examine those propositions.
III
Compelled access like that ordered in this case both penalizes the expression of particular points of view and forces speakers to alter their speech to conform with an agenda they do not set. These impermissible effects are not remedied by the Commission‘s definition of the relevant property rights.
A
This Court has previously considered the question whether compelling a private corporation to provide a forum for views other than its own may infringe the corporation‘s freedom of speech. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); see also PruneYard Shopping Center v. Robins, 447 U. S. 74, 85-88 (1980); id., at 98-100 (POWELL, J., joined by WHITE, J., concurring in part and in judgment). Tornillo involved a challenge to Florida‘s right-of-
We found that the right-of-reply statute directly interfered with the newspaper‘s right to speak in two ways. Id., at 256. First, the newspaper‘s expression of a particular viewpoint triggered an obligation to permit other speakers, with whom the newspaper disagreed, to use the newspaper‘s facilities to spread their own message. The statute purported to advance free discussion, but its effect was to deter newspapers from speaking out in the first instance: by forcing the newspaper to disseminate opponents’ views, the statute penalized the newspaper‘s own expression. We therefore concluded that a “[g]overnment-enforced right of access inescapably ‘dampens the vigor and limits the variety of public debate.‘” Id., at 257 (emphasis added) (quoting New York Times Co. v. Sullivan, 376 U. S. 254, 279 (1963).6
Second, we noted that the newspaper‘s “treatment of public issues and public officials—whether fair or unfair—constitute[s] the exercise of editorial control and judgment.” 418 U. S., at 258. Florida‘s statute interfered with this “editorial control and judgment” by forcing the newspaper to tailor its speech to an opponent‘s agenda, and to respond to candidates’ arguments where the newspaper might prefer to be silent. Cf. Wooley v. Maynard, 430 U. S., at 714; West Virginia Board of Education v. Barnette, 319 U. S. 624, 633-634
The concerns that caused us to invalidate the compelled access rule in Tornillo apply to appellant as well as to the institutional press.7 See First National Bank of Boston v. Bellotti, 435 U. S., at 782-784. Cf. Lovell v. Griffin, 303 U. S., at 452. Just as the State is not free to “tell a newspaper in advance what it can print and what it cannot,” Pittsburgh Press Co. v. Human Relations Comm‘n, 413 U. S. 376, 400 (1973) (Stewart, J., dissenting); see also PruneYard, supra, at 88, the State is not free either to restrict appellant‘s speech to certain topics or views or to force appellant to respond to views that others may hold. Consolidated Edison
The Court‘s decision in PruneYard Shopping Center v. Robins, supra, is not to the contrary. In PruneYard, a shopping center owner sought to deny access to a group of students who wished to hand out pamphlets in the shopping center‘s common area. The California Supreme Court held that the students’ access was protected by the State Constitution; the shopping center owner argued that this ruling violated his First Amendment rights. This Court held that the shopping center did not have a constitutionally protected right to exclude the pamphleteers from the area open to the public at large. Id., at 88. Notably absent from PruneYard was any concern that access to this area might affect the shopping center owner‘s exercise of his own right to speak: the owner did not even allege that he objected to the content of the pamphlets; nor was the access right content based. PruneYard thus does not undercut the proposition that forced associations that burden protected speech are impermissible.8
B
The Commission‘s order is inconsistent with these principles. The order does not simply award access to the public at large; rather, it discriminates on the basis of the viewpoints of the selected speakers. Two of the acknowledged purposes of the access order are to offer the public a greater variety of views in appellant‘s billing envelope, and to assist
Such one-sidedness impermissibly burdens appellant‘s own expression. Tornillo illustrates the point. Access to the newspaper in that case was content based in two senses: (i) it was triggered by a particular category of newspaper speech, and (ii) it was awarded only to those who disagreed with the newspaper‘s views. The Commission‘s order is not, in Tornillo‘s words, a “content-based penalty” in the first sense, because TURN‘s access to appellant‘s envelopes is not condi-
Appellant does not, of course, have the right to be free from vigorous debate. But it does have the right to be free from government restrictions that abridge its own rights in order to “enhance the relative voice” of its opponents. Buckley v. Valeo, 424 U. S. 1, 49, and n. 55 (1976). The Commission‘s order requires appellant to assist in disseminating TURN‘s views; it does not equally constrain both sides of the debate about utility regulation.10 This kind of favoritism goes well beyond the fundamentally content-
The Commission‘s access order also impermissibly requires appellant to associate with speech with which appellant may disagree. The order on its face leaves TURN free to use the billing envelopes to discuss any issues it chooses.11 Should TURN choose, for example, to urge appellant‘s customers to vote for a particular slate of legislative candidates, or to argue in favor of legislation that could seriously affect the utility business, appellant may be forced either to appear to agree with TURN‘s views or to respond. PruneYard, 447 U. S., at 98-100 (opinion of POWELL, J.).12 This pressure to
That kind of forced response is antithetical to the free discussion that the First Amendment seeks to foster. Harper & Row, 471 U. S., at 559. See also Wooley v. Maynard, 430 U. S., at 714.13 For corporations as for individuals, the choice to speak includes within it the choice of what not to say. Tornillo, supra, at 258. And we have held that speech does not lose its protection because of the corporate identity of the speaker. Bellotti, supra, at 777; Consolidated Edison, 447 U. S., at 533. Were the government freely able to compel corporate speakers to propound political messages with which they disagree, this protection would be empty, for the government could require speakers to affirm in one breath that which they deny in the next. It is therefore incorrect to say, as do appellees, that our decisions do not limit the government‘s authority to compel speech by corporations. The danger that appellant will be required to alter its own message as a consequence of the government‘s coercive action is a proper object of First Amendment solicitude, because the message itself is protected under our decisions in Bellotti and Consolidated Edison. Where, as in this case, the danger is one that arises from a content-based grant
Zauderer v. Office of Disciplinary Counsel, 471 U. S. 626, 651 (1985). Nothing in Zauderer suggests, however, that the State is equally free to require corporations to carry the messages of third parties, where the messages themselves are biased against or are expressly contrary to the corporation‘s views.
C
The Commission has emphasized that appellant‘s customers own the “extra space” in the billing envelopes. App. to Juris. Statement A-64 to A-66. According to appellees, it follows that appellant cannot have a constitutionally protected interest in restricting access to the envelopes. This argument misperceives both the relevant property rights and the nature of the State‘s First Amendment violation.14
The Commission expressly declined to hold that under California law appellant‘s customers own the entire billing envelopes and everything contained therein. Id., at A-2 to A-3. It decided only that the ratepayers own the “extra space” in the envelope, defined as that space left over after including the bill and required notices, up to a weight of one ounce. Ibid. The envelopes themselves, the bills, and Progress all remain appellant‘s property. The Commission‘s access order thus clearly requires appellant to use its property as a vehicle for spreading a message with which it disagrees. In Wooley v. Maynard, we held that New Hampshire could not require two citizens to display a slogan on their license plates and thereby “use their private property as a ‘mobile billboard’ for the State‘s ideological message.” 430 U. S., at 715. The “private property” that was used to spread the unwelcome message was the automobile, not the license plates. Similarly, the Commission‘s order requires appellant to use its property—the billing envelopes—to dis-
A different conclusion would necessarily imply that our decision in Tornillo rested on the Miami Herald‘s ownership of the space that would have been used to print candidate replies. Nothing in Tornillo suggests that the result would have been different had the Florida Supreme Court decided that the newspaper space needed to print candidates’ replies was the property of the newspaper‘s readers, or had the court ordered the Miami Herald to distribute inserts owned and prepared by the candidates together with its newspapers. The constitutional difficulty with the right-of-reply statute was that it required the newspaper to disseminate a message with which the newspaper disagreed. This difficulty did not depend on whether the particular paper on which the replies were printed belonged to the newspaper or to the candidate.
Appellees’ argument suffers from the same constitutional defect. The Commission‘s order forces appellant to disseminate TURN‘s speech in envelopes that appellant owns and that bear appellant‘s return address. Such forced association with potentially hostile views burdens the expression of views different from TURN‘s and risks forcing appellant to speak where it would prefer to remain silent. Those effects do not depend on who “owns” the “extra space.”15
Notwithstanding that it burdens protected speech, the Commission‘s order could be valid if it were a narrowly tailored means of serving a compelling state interest. Consolidated Edison Co. v. Public Service Comm‘n of N. Y., 447 U. S., at 535; First National Bank of Boston v. Bellotti, 435 U. S., at 786. Appellees argue that the access order does in fact further compelling state interests. In the alternative, appellees argue that the order is a permissible time, place, or manner restriction. We consider these arguments in turn.
A
Appellees identify two assertedly compelling state interests that the access order is said to advance. First, appellees argue that the order furthers the State‘s interest in effective ratemaking proceedings. TURN has been a regular participant in those proceedings, and the Commission found that TURN has aided the Commission in performing its regulatory task. Appellees argue that the access order permits TURN to continue to help the Commission by assisting TURN in raising funds from the ratepayers whose interest TURN seeks to serve.
The State‘s interest in fair and effective utility regulation may be compelling. The difficulty with appellees’ argument is that the State can serve that interest through means that would not violate appellant‘s First Amendment rights, such as awarding costs and fees.16 The State‘s interest may justify imposing on appellant the reasonable expenses of responsible groups that represent the public interest at ratemaking proceedings. But “we find ‘no substantially relevant correlation between the governmental interest asserted and the State‘s effort‘” to compel appellant to distribute TURN‘S speech in appellant‘s envelopes. First National Bank of
Second, appellees argue that the order furthers the State‘s interest in promoting speech by making a variety of views available to appellant‘s customers. Cf. Buckley v. Valeo, 424 U. S., at 92-93, and n. 127. We have noted above that this interest is not furthered by an order that is not content neutral. Moreover, the means chosen to advance variety tend to inhibit expression of appellant‘s views in order to promote TURN‘s. Our cases establish that the State cannot advance some points of view by burdening the expression of others. First National Bank of Boston v. Bellotti, supra, at 785-786; Buckley v. Valeo, supra, at 48-49. It follows that the Commission‘s order is not a narrowly tailored means of furthering this interest.
B
Appellees argue, finally, that the Commission‘s order is a permissible time, place, or manner regulation, since it “serve[s] a significant governmental interest and leave[s] ample alternative channels for communication.” Consolidated Edison Co. v. Public Service Comm‘n of N. Y., supra, at 535; see also Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976). For a time, place, or manner regulation to be valid, it must be neutral as to the content of the speech to be regulated. Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984); see also Erznoznik v. City of Jacksonville, 422 U. S. 205, 210-212 (1975). As we have shown, the State‘s asserted interest in exposing appellant‘s customers to a variety of viewpoints is not—and does not purport to be—content neutral.
V
We conclude that the Commission‘s order impermissibly burdens appellant‘s First Amendment rights because it forces appellant to associate with the views of other speakers, and because it selects the other speakers on the basis of
For these reasons, the decision of the California Public Utilities Commission must be vacated. The case is remanded to the California Supreme Court for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE BLACKMUN took no part in the consideration or decision of this case.
CHIEF JUSTICE BURGER, concurring.
I join JUSTICE POWELL‘s opinion, but think we need not go beyond the authority of Wooley v. Maynard, 430 U. S. 705 (1977), to decide this case. I would not go beyond the central question presented by this case, which is the infringement of Pacific‘s right to be free from forced association with views with which it disagrees. I would also rely on that part of Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), holding that a forced right of reply violates a newspaper‘s right to be free from forced dissemination of views it would not voluntarily disseminate, just as we held that Maynard must be free from being forced by the State to disseminate views with which he disagreed. To compel Pacific to mail messages for others cannot be distinguished from compelling it to carry the messages of others on its trucks, its buildings, or other property used in the conduct of its business. For purposes of this case, those properties cannot be distinguished from property like the mailing envelopes acquired by Pacific from its income and resources.
JUSTICE MARSHALL, concurring in the judgment.
In PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), we held that a State could, consistently with the Federal Constitution, prohibit the private owner of a shopping center from using state trespass law to exclude peaceful ex
The first difference is the degree of intrusiveness of the permitted access. We noted in PruneYard: “[T]he shopping center by choice of its owner is not limited to the personal use of [its owner]. It is instead a business establishment that is open to the public to come and go as they please.” Id., at 87. The challenged rule did not permit a markedly greater intrusion onto the property than that which the owner had voluntarily encouraged, nor did it impair the commercial value of the property. Id., at 83; see also id., at 94 (MARSHALL, J., concurring).
In the present case, by contrast, appellant has never opened up its billing envelope to the use of the public.1 Ap
The second difference between this case and PruneYard is that the State has chosen to give TURN a right to speak at the expense of appellant‘s ability to use the property in ques
While the interference with appellant‘s speech is, concededly, very slight, the State‘s justification—the subsidization of another speaker chosen by the State—is insufficient to sustain even that minor burden. We have held that the State may use its own resources for subsidization, Regan v. Taxation With Representation of Washington, 461 U. S. 540 (1983), but that interest, standing alone, cannot justify interference with the speech of others. See Buckley v. Valeo, 424 U. S. 1, 48-49 (1976) (per curiam); First National Bank of Boston v. Bellotti, 435 U. S. 765, 790-792 (1978).3 In the
In PruneYard, I recognized that the State may generally create or abrogate rights “to attain a permissible legislative object.” 447 U. S., at 92 (quoting Silver v. Silver, 280 U. S. 117, 122 (1929)). In the present case, the State has redefined a property right in the extra space in appellant‘s billing envelope in such a way as to achieve a result—burdening the speech of one party in order to enhance the speech of another—that the First Amendment disallows. In doing so, moreover, it has sanctioned an intrusion onto appellant‘s property that exceeds the slight incursion permitted in PruneYard. Under these circumstances, I believe that the State has crossed the boundary between constitutionally permissible and impermissible redefinitions of private property.
In reaching this conclusion, I do not mean to suggest that I would hold, contrary to our precedents, that the corporation‘s First Amendment rights are coextensive with those of individuals, or that commercial speech enjoys the same pro
JUSTICE REHNQUIST, with whom JUSTICE WHITE and JUSTICE STEVENS join as to Part I, dissenting.
The plurality concludes that a state-created, limited right of access to the extra space in a utility‘s billing envelopes unconstitutionally burdens the utility‘s right to speak if the utility has used the space itself to express political views to its customers. This is so even though the extra envelope space belongs to the customers as a matter of state property law. The plurality justifies its conclusion on grounds that the right of access may (1) deter the utility from saying things that might trigger an adverse response, or (2) induce it to respond to subjects about which it might prefer to remain silent, in violation of the principles established in Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), and Wooley v. Maynard, 430 U. S. 705 (1977). I do not believe that the right of access here will have any noticeable deterrent effect. Nor do I believe that negative free speech rights, applicable to individuals and perhaps the print media, should be extended to corporations generally. I believe that the right of access here is constitutionally indistinguishable from the right of access approved in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), and therefore I dissent.1
This Court established in First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978), that the First Amendment prohibits the government from directly suppressing the affirmative speech of corporations. A newspaper publishing corporation‘s right to express itself freely is also implicated by governmental action that penalizes speech, see Miami Herald Publishing Co. v. Tornillo, supra, because the deterrent effect of a penalty is very much like direct suppression. Our cases cannot be squared, however, with the view that the First Amendment prohibits governmental action that only indirectly and remotely affects a speaker‘s contribution to the overall mix of information available to society.
Several cases illustrate this point. In Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), the Court upheld limits on political campaign contributions despite the argument that their likely effect would be “to mute the voices of affluent persons and groups in the election process and thereby to equalize the relative ability of all citizens to affect the outcome of elections.” Id., at 25-26. The Court explained that the potential effect on affluent speech of limiting access to this one forum was constitutionally insignificant because of the availability of other forums, id., at 26, n. 26, and that the limitation protected the integrity of our representative democracy by limiting political quid pro quos and the appearance of corruption, id., at 26-27. The Court also upheld a provision granting different levels of subsidies for Presidential campaigns depending upon whether the party receiving the subsidy is a major, minor, or new party. Id., at 87-88. The Court reasoned that the effect of the provision was “not
PruneYard Shopping Center v. Robins, supra, illustrates the point in a case that is very similar to the one decided today. The State of California interpreted its own Constitution to afford a right of access to private shopping centers for the reasonable exercise of speech and petitioning. Id., at 78. While acknowledging that the First Amendment does not itself grant a right of access to private forums, id., at 80-81, the Court upheld the state-created right against a First Amendment challenge. See id., at 85-88. It reasoned that Wooley v. Maynard, supra, does not prohibit such a right of access because the views of those taking advantage of the right would not likely be identified with those of the owners, the State was not dictating any specific message, and the owners were free to disavow any connection to the message by posting disclaimers. 447 U. S., at 87. The Court similarly distinguished West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943), stating that the right of access did not compel the owners to affirm their belief in government orthodoxy, and left them free to publicly dissociate themselves from the views of the speakers. 447 U. S., at 87-88. Finally, it distinguished Miami Herald Publishing Co. v. Tornillo, supra, on the ground that the right of access did not constitute a content-based penalty that would “‘dampe[n] the vigor and limi[t] the variety of public debate.‘” 447 U. S., at 88, quoting Tornillo, supra, at 257.
Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), held that a governmentally imposed “penalty” for the exercise of protected speech is sufficiently like direct suppression to trigger heightened First Amendment scrutiny. The Court in Tornillo struck down a statute granting political candidates a right to reply any time a private newspaper
Although the plurality draws its deterrence rationale from Tornillo, it does not even attempt to characterize the right of access as a “penalty“; indeed, such a Procrustean effort would be doomed to failure. Instead, the plurality stretches Tornillo to stand for the general proposition that the First Amendment prohibits any regulation that deters a corporation from engaging in some expressive behavior. But the deterrent effect of any statute is an empirical question of degree. When the potential deterrent effect of a particular state law is remote and speculative, the law simply is not subject to heightened First Amendment scrutiny. See supra, at 27-29, and n. 2. The plurality does not adequately explain how the potential deterrent effect of the right of access here is sufficiently immediate and direct to warrant strict scrutiny. While a statutory penalty, like the right-of-reply statute in Tornillo, may sufficiently deter speech to trigger such heightened First Amendment scrutiny, the right of access here will not have such an effect on PG&E‘s incentives to speak.
The record does not support the inference that PUC issued its order to penalize PG&E because of the content of its inserts or because PG&E included the inserts in its billing envelopes in the first place. The order does not prevent PG&E from using the billing envelopes in the future to distribute inserts whenever it wishes. Nor does its vitality depend on whether PG&E includes inserts in any future billing envelopes. Moreover, the central reason for the access order—to provide for an effective ratepayer voice—would not vary in importance if PG&E had never distributed the inserts or
Nor does the access order create any cognizable risk of deterring PG&E from expressing its views in the most candid fashion. Unlike the reply statute in Tornillo, which conditioned access upon discrete instances of certain expression, the right of access here bears no relationship to PG&E‘s future conduct. PG&E cannot prevent the access by remaining silent or avoiding discussion of controversial subjects. The plurality suggests, however, that the possibility of minimizing the undesirable content of TURN‘s speech may induce PG&E to adopt a strategy of avoiding certain topics in hopes that TURN will not think to address them on its own. But this is an extremely implausible prediction. The success of such a strategy would depend on any group given access being little more than a reactive organization. TURN or any other group eventually given access will likely address the controversial subjects in spite of PG&E‘s silence. I therefore believe that PG&E will have no incentive to adopt the conservative strategy. Accordingly, the right of access should not be held to trigger heightened First Amendment scrutiny on the ground that it somehow might deter PG&E‘s right to speak.
II
The plurality argues, however, that the right of access also implicates PG&E‘s right not to speak or to associate with the speech of others, thereby triggering heightened scrutiny. The thrust of the plurality‘s argument is that if TURN has access to the envelopes, its speech will have the effect of forcing PG&E to address topics about which it would prefer to remain silent. The plausibility of any such prediction depends upon the perceived ineffectiveness of a disclaimer or the absence of any effective alternative means for consumer groups like TURN to communicate to the ratepayers. In
There is, however, a more fundamental flaw in the plurality‘s analysis. This Court has recognized that natural persons enjoy negative free speech rights because of their interest in self-expression; an individual‘s right not to speak or to associate with the speech of others is a component of the broader constitutional interest of natural persons in freedom of conscience. Thus, in Barnette, supra, this Court struck down a compulsory flag salute statute to protect “the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Id., at 642. Similarly, in Wooley v. Maynard, 430 U. S. 705 (1977), the Court invalidated a statute requiring an official slogan to be displayed on all license plates to protect the individual interest in “freedom of mind.” Id., at 714. See also Abood v. Detroit Board of Education, 431 U. S. 209, 234-235 (1977). Most recently, in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U. S. 524 (1985), this Court rejected a public figure exception to the copyright law, reasoning that the protection of an author‘s profit incentive furthers rather than inhibits expression, id., at 555-559, and that an author has a countervailing First Amendment interest in “freedom of thought and expression [that] ‘includes both the right to speak freely and the right to refrain from
In Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), the Court extended negative free speech rights to newspapers without much discussion. The Court stated that the right-of-reply statute not only deterred affirmative speech, but also “fail[ed] to clear the barriers of the First Amendment because of its intrusion into the function of editors.” Id., at 258. The Court explained that interference with “the exercise of editorial control and judgment” creates a peril for the liberty of the press like government control over “what is to go into a newspaper.” Ibid., and n. 24, quoting 2 Z. Chafee, Government and Mass Communications 633 (1947). The Court did not elaborate further on the justification for its holding.
Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an “intellect” or “mind” for freedom of conscience purposes is to confuse metaphor with reality. Corporations generally have not played the historic role of newspapers as conveyers of individual ideas and opinion. In extending positive free speech rights to corporations, this Court drew a distinction between the First Amendment rights of corporations and those of natural persons. See First National Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978); Consolidated Edison Co. v. Public Service Comm‘n of N. Y., 447 U. S. 530, 534-535, and n. 2 (1980). It recognized that corporate free speech rights do not arise because corporations, like individuals, have any interest in self-expression. See Bellotti, supra, at 777, and n. 12; Consolidated Edison, supra, at 534, n. 2. It held instead that such rights are recognized as an instrumental means of furthering the First Amendment purpose of fostering a broad forum of information to facilitate self-government. See Bellotti, supra, at 783; Consolidated Edison, supra, at 533.
This argument is bolstered by the fact that the two constitutional liberties most closely analogous to the right to refrain from speaking—the Fifth Amendment right to remain silent and the constitutional right of privacy—have been denied to corporations based on their corporate status. The Court in Bellotti recognized that some “‘purely personal’ guarantees . . . are unavailable to corporations and other organizations,” 435 U. S., at 779, n. 14, and therefore declined to hold that “corporations have the full measure of
III
PG&E is not an individual or a newspaper publisher; it is a regulated utility. The insistence on treating identically for constitutional purposes entities that are demonstrably different is as great a jurisprudential sin as treating differently those entities which are the same. Because I think this case is governed by PruneYard, and not by Tornillo or Wooley, I would affirm the judgment of the Supreme Court of California.
JUSTICE STEVENS, dissenting.
Because the plurality opinion is largely concerned with questions that need not be answered in order to decide this case,1 I believe it is important to identify the actual issue with some care. The narrow question we must address is whether a state public utility commission may require the fundraising solicitation of a consumer advocacy group to be carried in a utility billing envelope. Since the utility concedes that it has no right to use the extra space in the billing envelope for its own newsletter, the question is limited to whether the Commission‘s requirement that it be the courier
I
As the California Public Utilities Commission summarized its own ruling: “[T]his decision . . . grants, in modified form, the complaint of Toward Utility Rate Normalization (TURN) proposing access to the extra space in Pacific Gas and Electric Company‘s (PG&E) billing envelope by consumer representative organizations for the purpose of soliciting funds to be used for residential ratepayer representation in proceedings of this Commission involving PG&E.” App. to Juris. Statement A-1. Accord, id., at A-4.2 The Commission did not select among competing advocacy groups yearning to reach residential ratepayers through the billing envelope; “no other ratepayer organizations . . . sought access to the extra space.” Id., at A-24.
In my view the propagandizing and sloganeering feared by the plurality is not authorized by paragraph 5(b) of the Commission‘s order, which provides that “PG&E and TURN shall each determine the content of [its] own material.” Id., at A-32. In context, it is clear that the limited editorial license afforded by that provision is confined to “a billing envelope extra space insert . . . which (1) explains the program, (2)
II
I assume that the plurality would not object to a utility commission rule dictating the format of the bill, even as to required warnings and the type size of various provisos and
Given that the Commission can require the utility to make certain statements and to carry the Commission‘s own messages to its customers, it seems but a small step to acknowledge that the Commission can also require the utility to act as the conduit for a public interest group‘s message that bears a close relationship to the purpose of the billing envelope.7 An analog to this requirement appears in securities law: the Securities and Exchange Commission requires the incumbent board of directors to transmit proposals of dissident shareholders which it opposes.8 Presumably the plurality does not doubt the constitutionality of the SEC‘s requirement
If the California Public Utilities Commission had taken over company buildings and vehicles for propaganda purposes, or even engaged in viewpoint discrimination among speakers desirous of sending messages via the billing envelope, I would be concerned. But nothing in this case presents problems even remotely resembling or portending the ones just mentioned. Although the plurality‘s holding may wisely forestall serious constitutional problems that are likely to arise in the future, I am not convinced that the order under review today has crossed the threshold of unconstitutionality. Accordingly, I respectfully dissent.