Parties: Pacific Gas & Electric Co. v. Public Utilities Com.
Date: 1986-04-21
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Paragraph: 22 - 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."
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Paragraph: 58 - Of course, the First Amendment does prohibit governmental action affecting the mix of information available to the public if the effect of the action approximates that of direct content-based suppression of speech. Thus, while the Court in Buckley v. Valeo, supra, upheld limits on campaign contributions and allowed disparate governmental subsidies to various political parties, it struck down limitations on campaign expenditures because such limits "impose far greater restraints on the freedom of speech and association."
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Paragraph: 64 - 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, 63 S.Ct., at 1187. Similarly, in Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (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 97 S.Ct., at 1435. See also Abood v. Detroit Board of Education, 431 U.S. 209, 234-235, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977). Most recently, in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 524, 105 S.Ct. 2218, 85 L.Ed.2d 588 (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, 105 S.Ct., at 2227-2230, 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 speaking at all.' " Id., at 559, 105 S.Ct., at 2230 (emphasis added), quoting Wooley v. Maynard, supra, 430 U.S., at 714, 97 S.Ct., at 1435.
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Paragraph: 66 - 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., at 776, 98 S.Ct., at 1415; Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U.S. 530, 534-535, and n. 2, 100 S.Ct. 2326, 2331-2332, and n. 2, 65 L.Ed.2d 319 (1980). It recognized that corporate free speech rights do not arise because corporations, like individuals, have any interest in self-expression.
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Paragraph: 44 - I would also rely on that part of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (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.
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Paragraph: 21 - We therefore concluded that a N185* "[g]overnment-enforced right of access inescapably N186* 'dampens the vigor and limits the variety of public debate.' "
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Paragraph: 54 - N187* 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, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), and Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (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, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), and therefore I dissent
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Paragraph: 67 - N188* The right of access here constitutes an effort to facilitate and enlarge public discussion; it therefore furthers rather than abridges First Amendment values.
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Paragraph: 46 - N185* In PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (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 expressive activity in the open areas of the shopping center. Concurring in PruneYard, I viewed the State's abrogation of the property owner's traditional right to exclude as raising the question of how the Federal Constitution limits a State's ability to redefine its common-law property rights. See id., at 92-93, 100 S.Ct., at 2046 (MARSHALL, J., concurring). Today we face a similar question. In the present case, California has taken from appellant the right to deny access to its property—its billing envelope—to a group that wishes to use that envelope for expressive purposes. Two significant differences between the State's grant of access in this case and the grant of access in PruneYard lead me to find a constitutional barrier here that I did not find in the earlier case.
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Paragraph: 21 - We found that the right-of-reply statute directly interfered with the newspaper's right to speak in two ways. Id., at 256, 94 S.Ct., at 2838. 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 N182* "[g]overnment-enforced right of access inescapably 'dampens the vigor and limits the variety of public debate.' "
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Paragraph: 24 - 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., 447 U.S., at 88, 100 S.Ct., at 2044. 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.
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Paragraph: 27 - N183* 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 N184* "enhance the relative voice" of its opponents.
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Paragraph: 44 - 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, 94 S.Ct. 2831, 41 L.Ed.2d 730 (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.
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Paragraph: 49 - N186* 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 question as a forum for the exercise of its own First Amendment rights. While the shopping center owner in PruneYard wished to be free of unwanted expression, he nowhere alleged that his own expression was hindered in the slightest. In contrast, the present case involves a forum of inherently limited scope. By appropriating, four times a year, the space in appellant's envelope that appellant would otherwise use for its own speech, the State has necessarily curtailed appellant's use of its own forum. The regulation in this case, therefore, goes beyond a mere infringement of appellant's desire to remain silent, see post, at 32-35 (REHNQUIST, J., dissenting).
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Paragraph: 54 - /prefTerm>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, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), and Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (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, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), and therefore I dissent.
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Paragraph: 55 - This Court established in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (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.
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Paragraph: 59 - The Court in Tornillo struck down a statute granting political candidates a right to reply any time a private newspaper criticized them. See id., 418 U.S., at 244, 94 S.Ct., at 2832. The Court reasoned that the statute violated the First Amendment because it "exact[ed] a penalty on the basis of the content of a newspaper," id., at 256, 94 S.Ct., at 2839, that would likely have the effect of " 'dampe[ning] the vigor and limi[ting] the variety of public debate.' "
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Paragraph: 64 - N187* 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, 63 S.Ct., at 1187. Similarly, in Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (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 97 S.Ct., at 1435. See also Abood v. Detroit Board of Education, 431 U.S. 209, 234-235, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977). Most recently, in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 524, 105 S.Ct. 2218, 85 L.Ed.2d 588 (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, 105 S.Ct., at 2227-2230, and that an author has a countervailing First Amendment interest in N188* "freedom of thought and expression [that] 'includes both the right to speak freely and the right to refrain from speaking at all.' "
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Paragraph: 68 - 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.
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Paragraph: 71 - 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 for the message of a third party violates the First Amendment. In my view, this requirement differs little from regulations applied daily to a variety of commercial communications that have rarely been challenged—and to my knowledge never invalidated—on First Amendment grounds.
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Paragraph: 66 - 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.
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Paragraph: 56 - 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, 96 S.Ct., at 638, 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, 96 S.Ct., at 638. 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.
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Paragraph: 67 - The right of access here constitutes an effort to facilitate and enlarge public discussion; it therefore furthers rather than abridges First Amendment values. See Harper & Row Publishers, Inc. v. Nation Enterprises, supra, 471 U.S., at 558, 105 S.Ct., at 2229; Buckley v. Valeo, 424 U.S., at 92-93, 96 S.Ct., at 669-670. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), this Court held that N162* "[b]ecause the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, . . . [the] constitutionally protected interest in not providing any particular factual information in [a business'] advertising is minimal." Id., at 651, 105 S.Ct., at 2282 (citation omitted). Likewise, because the interest on which the constitutional protection of corporate speech rests is the societal interest in receiving information and ideas, the constitutional interest of a corporation in not permitting the presentation of other distinct views clearly identified as those of the speaker is de minimis.
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Paragraph: 16 - 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, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940); Saxbe v. Washington Post Co., 417 U.S. 843, 863-864, 94 S.Ct. 2811, 2821-2822, 41 L.Ed.2d 514 (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 N163* "discussion, debate, and the dissemination of information and ideas" that the First Amendment seeks to foster.
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Paragraph: 24 - 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.
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Paragraph: 29 - 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.
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