475 U.S. 1 (1986)

PACIFIC GAS & ELECTRIC CO.
v.
PUBLIC UTILITIES COMMISSION OF CALIFORNIA ET AL.

No. 84-1044.

Supreme Court of United States.

Argued October 8, 1985 Decided February 25, 1986 APPEAL FROM THE SUPREME COURT OF CALIFORNIA

*3 Robert L. Harris argued the cause for appellant. With him on the briefs was Malcolm H. Furbush.

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.^[*]

*4 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.

*5 I

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 *6 space remaining in the billing envelope, after inclusion of the monthly bill and any required legal notices, for inclusion of other materials up to such total envelope weight as would not result in any additional postage cost." Ibid.

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 Commission *7 placed no limitations on what TURN or appellant could say in the envelope, except that TURN is required to state that its messages are not those of appellant. Id., at A-17 to A-18. The Commission reserved the right to grant other groups access to the envelopes in the future.^[5]Ibid.

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.

*8 II

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 *9 extends well beyond speech that proposes a business transaction, see Zauderer v. Office of Disciplinary Counsel, 471 U. S. 626, 637 (1985); Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N. Y., 447 U. S. 557, 561-563 (1980), and includes the kind of discussion of "matters of public concern" that the First Amendment both fully protects and implicitly encourages. Thornhill v. Alabama, supra, at 101.

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-reply *10 statute. The Florida law provided that, if a newspaper assailed a candidate's character or record, the candidate could demand that the newspaper print a reply of equal prominence and space. 418 U. S., at 244-245, and n. 2.

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 view-point 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 *11 (1943). Since all speech inherently involves choices of what to say and what to leave unsaid, this effect was impermissible. As we stated last Term: " `The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas. . . . There is necessarily. . . a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.' " Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U. S. 524, 559 (1985) (quoting Estate of Hemingway v. Random House, 23 N. Y. 2d 341, 348, 244 N. E. 2d 250, 255 (1968)) (emphasis in original). See PruneYard, supra, at 99-100 (opinion of POWELL, J.).

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 *12 Co. v. Public Service Comm'n of N. Y., 447 U. S., at 533-535. See PruneYard, 447 U. S., at 100 (opinion of POWELL, J.); Abood v. Detroit Board of Education, 431 U. S. 209, 241 (1977). Under Tornillo a forced access rule that would accomplish these purposes indirectly is similarly forbidden.

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 *13 groups (such as TURN) that challenge appellant in the Commission's ratemaking proceedings in raising funds. App. to Juris. Statement A-16 to A-17. Access to the envelopes thus is not content neutral. The variety of views that the Commission seeks to foster cannot be obtained by including speakers whose speech agrees with appellant's. Similarly, the perceived need to raise funds to finance participation in ratemaking proceedings exists only where the relevant groups represent interests that diverge from appellant's interests. Access is limited to persons or groups — such as TURN — who disagree with appellant's views as expressed in Progress and who oppose appellant in Commission proceedings.^[9]

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 conditioned *14 on any particular expression by appellant. Cf. Tornillo, 418 U. S., at 256. But because access is awarded only to those who disagree with appellant's views and who are hostile to appellant's interests, appellant must contend with the fact that whenever it speaks out on a given issue, it may be forced — at TURN's discretion — to help disseminate hostile views. Appellant "might well conclude" that, under these circumstances, "the safe course is to avoid controversy," thereby reducing the free flow of information and ideas that the First Amendment seeks to promote. Id., at 257.

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-neutral *15 subsidies that we sustained in Buckley and in Regan v. Taxation With Representation of Washington, 461 U. S. 540 (1983). See Buckley, supra at 97-105 (sustaining funding of general election campaign expenses of major party candidates); Regan, supra, at 546-550 (sustaining tax deduction for contributors to veterans' organizations). Unlike these permissible government subsidies of speech, the Commission's order identifies a favored speaker "based on the identity of the interests that [the speaker] may represent," First National Bank of Boston v. Bellotti, 435 U. S., at 784, and forces the speaker's opponent — not the taxpaying public — to assist in disseminating the speaker's message. Such a requirement necessarily burdens the expression of the disfavored speaker.

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 *16 respond "is particularly apparent when the owner has taken a position opposed to the view being expressed on his property." Id., at 100. Especially since TURN has been given access in part to create a multiplicity of views in the envelopes, there can be little doubt that appellant will feel compelled to respond to arguments and allegations made by TURN in its messages to appellant's customers.

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 *17 of access to private property, it is a danger that the government may not impose absent a compelling interest.

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 distribute *18 the message of another. This is so whoever is deemed to own the "extra space."

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]

*19 IV

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 *20 Boston v. Bellotti, supra, at 795 (quoting Shelton v. Tucker, 364 U. S. 479, 485 (1960)).

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 *21 their viewpoints. The order is not a narrowly tailored means of furthering a compelling state interest, and it is not a valid time, place, or manner regulation.

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 expressive *22 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 (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.

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] Appellant *23 has not abandoned its right to exclude others from its property to the degree that the shopping center owner had done in PruneYard. Were appellant to use its billing envelope as a sort of community billboard, regularly carrying the messages of third parties, its desire to exclude a particular speaker would be deserving of lesser solicitude. As matters stand, however, appellant has issued no invitation to the general public to use its billing envelope for speech or for any other purpose.^[2] Moreover, the shopping center in PruneYard bore a strong resemblance to the streets and parks that are traditional public forums. People routinely gathered there, at the owner's invitation, and engaged in a wide variety of activities. Adding speech to the list of those activities did not in any great way change the complexion of the property. The same is not true in this case.

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 *24 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).

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,