Pacific Gas & Electric Company v. Public Utilities Commission of California

PETITIONER: Pacific Gas & Electric Company
RESPONDENT: Public Utilities Commission of California
LOCATION: Dow Chemical

DOCKET NO.: 84-1044
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of California

CITATION: 475 US 1 (1986)
ARGUED: Oct 08, 1985
DECIDED: Feb 25, 1986

ADVOCATES:
Mark Fogelman - on behalf of the Appellees
Robert Q. Harris - on behalf of the Appellant
Robert L. Harris - on behalf of the appellant -- rebuttal

Facts of the case

Question

Media for Pacific Gas & Electric Company v. Public Utilities Commission of California

Audio Transcription for Oral Argument - October 08, 1985 in Pacific Gas & Electric Company v. Public Utilities Commission of California

Warren E. Burger:

Mr. Harris, I think you may proceed whenever your are ready now.

Robert L. Harris:

Mr. Chief Justice, and may it please the Court:

This case comes from the State of California which has order Pacific Gas and Electric Company to include in its monthly billing envelope the fund solicitation messages of a third party.

We are required to include the message four times per year for a two-year period.

For the past 60 years, PG&E has used the billing envelope to communicate its message through the PG&E Progress.

The envelope has never been open to the public.

The California Supreme Court refused to hear Appellant's petition for writ of review, thus upholding the Commission's decision.

That decision was appealed to this Court, which noted probable jurisdiction.

The issue presented on appeal is whether or not the State of California can, consistent with the First Amendment to the United States Constitution, compel Pacific Gas and Electric Company, a privately owned, public utility, to include in its monthly billing envelope the fund solicitation of a third party, in this case, TURN, Toward Utility Rate Normalization.

Utility speech is protected by the First Amendment.

In Consolidated Edison, this Court decided in 1980 that the State of New York could not regulate the political speech that Consolidated Edison put in the billing envelope unless the state showed a compelling state interest for that regulation.

The right not to carry the message of others applies, indeed, to a corporation.

William H. Rehnquist:

What case holds that?

Robert L. Harris:

First National Bank of Boston versus Bellotti, decided in 1978.

In that case, this Court was faced with the issue as to whether or not the corporation was entitled to the protection of the First Amendment.

As a matter of fact, that was the first time the issue was squarely presented to this Court.

And, Justice Powell writing for the Court, said that the inherent worth of speech is not determined by identity.

He said that you look not to the identity of the person who is asserting the right, you look to see if the right that is being asserted is a right that is protected by the First Amendment.

William H. Rehnquist:

Did that case hold that the kind of Wooley versus Maynard type of First Amendment rights the right not to carry a message you don't agree with applied to corporations?

Robert L. Harris:

That case was not faced with that issue.

William H. Rehnquist:

Do, it didn't hold it?

Robert L. Harris:

It did not hold that a person had a right... that a corporation had a right not to carry somebody else's message.

William H. Rehnquist:

So, what case of ours do you rely for that proposition?

Robert L. Harris:

There is no case that specifically holds that in the case of a corporation, however, we do rely heavily upon at least two cases, Miami Herald versus Tornillo and Wooley versus Maynard.

In the Miami Herald case, the Court held that the State of Florida could not compel the Miami Herald to publish the reply messages of third parties and in that decision Chief Justice Burger, writing for the Court, indicated that although the State of Florida made good arguments in terms of why a wide variety of views are necessary or desired, but the Court says in each instance where there is an enforced right of excess... access... necessarily calls for some mechanism, either consentual or governmental.

Warren E. Burger:

Do you think there is a difference between a newspaper, which is not a regulated enterprise, and a public utility, which is quite strictly regulated, a difference for these purposes?

Robert L. Harris:

For these purposes, I think that the same principle that applies in Tornillo should apply here.

The mere fact of regulation, as this Court indicated in Consolidated Edison, does not preclude a utility from asserting First Amendment rights.

In Tornillo, the difference, of course, is that Tornillo involved a newspaper.

Here we are involved with a situation where you have a utility's billing envelope.