Consolidated Edison Co. of New York v. Public Service Commission

Brief Fact Summary. The Petitioner, Consolidated Edison (Petitioner), sought to place written materials regarding nuclear power in its billing envelopes. The National Resources Defense Counsel (NRDC) disagreed with this practice and filed a complaint with the Respondent, the Public Service Commission (Respondent), asking that Petitioner’s envelopes be opened to contrasting views.

Synopsis of Rule of Law. When no valid time, place and manner exception exists, political speech cannot be suppressed.

Facts. The Petitioner sought to place written materials regarding nuclear power in its billing envelopes. The NRDC disagreed with this practice and filed a complaint with the Respondent asking that Petitioner’s envelopes be opened to contrasting views. The Respondent did not grant this request, but instead barred utility companies from including any political viewpoints in their bill inserts. The Petitioner filed suit, seeking review of the bar on its political speech. The Court of Appeals of New York agreed with Respondent, that the order of the commission did not infringe on Petitioner’s First Amendment rights because inclusion of the Petitioner’s viewpoints in all envelopes infringed on the rights of their customers to not accept the speech and therefore the time, place and manner of the speech was inappropriate. The Petitioner Edison appealed to the United States Supreme Court (Supreme Court), which granted certiorari.

Issue. This case considers whether it is constitutionally acceptable to suppress political viewpoints when they are shared with a mass audience, through envelope inserts.

Held. Judge Lewis Powell Jr. (J. Powell). Reversed.
The Respondent presented several theories to the court. First, it argued that the subject matter of the inserts addressed controversial issues of public policy, which was a permissible subject-matter regulation. The court found, in that instance, that while nuclear power may be a controversial topic, the expression of Petitioner’s opinion did not cause public upheaval, and therefore the suppression of the inserts directly infringed on the freedom of speech protected by the First and Fourteenth Amendments of the United States Constitution (Constitution).
Respondent also argued that suppression of the inserts was necessary to avoid forcing one viewpoint on the public. The court rejected this argument, noting that where speech is communicated to many listeners, it cannot be prohibited except where the audience cannot avoid the speech. In the case of envelope inserts, consumers are free to discard the materials without reading them and are hardly considered to be captive to another’s view.

Dissent. Justice Harry Blackmun (J. Blackmun)
In his dissent, J. Blackmun noted that the Petitioner, as a public utility, has a monopoly over the consumers and as such, does have a captive audience. J. Blackmun also suggests that the Petitioner is free to express itself in any manner, but should not use a billing envelope, which is integral to its business.
Concurrence. Justice John Paul Stevens (J. Stevens)
In his concurrence, J. Stevens focused on the language of the First Amendment of the Constitution, noting that any suppression of expression on a particular topic, just because it may be controversial, is an unconstitutional abridgment of freedom of speech.

Discussion. This is among the first of a line of cases dealing with the expression of companies. While there was a plurality opinion, it is important to consider all sides of this debate, as it is ongoing.