explaining that “a communication may be offensive in two different ways,” in that some speech, “even though elegantly phrased in dulcet tones, [is] offensive simply because the listener disagrees with the speaker’s message,” while other speech is offensive “[findependently of the message the speaker intends to convey,” due to “the form of [the] communication ... perhaps because it is too loud or too ugly in a particular setting”
How later courts described this case
- explaining that “a communication may be offensive in two different ways,” in that some speech, “even though elegantly phrased in dulcet tones, [is] offensive simply because the listener disagrees with the speaker’s message,” while other speech is offensive “[findependently of the message the speaker intends to convey,” due to “the form of [the] communication ... perhaps because it is too loud or too ugly in a particular setting”
- concluding that a utility company’s bill containing factual statements on matters such as the use of nuclear power was fully protected under the-First Amendment because it concerned the ‘arena of public discussion,’ even though the statements could influence consumer’s choices
- holding that when a private company "utilize[s] its own billing envelopes to promulgate its views on controversial issues of public policy,” such as nuclear energy, the state's complete ban of bill inserts that discussed "political matters" could not withstand strict scrutiny
- holding content-based a regulation that barred utility company bill inserts expressing “opinions or viewpoints on controversial issues of public policy” but did not bar “topics that are not ‘controversial issues of public policy’ ”
Written by the judges who cited it.
The opinion
Mr. Justice Marshall,
concurring.
I join the Court’s opinion. I write separately to emphasize that our decision today in no way addresses the question whether the Commission may exclude the costs of bill inserts from the rate base, nor does it intimate any view on the appropriateness of any allocation of such costs the Commission might choose to make. Ante, at 543. The Commission did not rely on the argument that the use of bill inserts required ratepayers to subsidize the dissemination of management’s view in issuing its order, and we therefore are precluded from sustaining the order on that ground. Cf. SEC v. Chenery Corp., 318 U. S. 80, 95 (1943) (“[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained”); FPC v. Texaco Inc., 417 U. S. 380, 397 (1974); FTC v. Sperry & Hutchinson Co., 405 U. S. 233, 249 (1972).