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 Stevens,
concurring in the judgment.
Any student of history who has been reprimanded for talking about the World Series during a class discussion of the *545 First Amendment knows that it is incorrect to state that a “time, place, or manner restriction may not be based upon either the content or subject matter of speech.” Ante, at 536. And every lawyer who has read our Rules, 1 or our cases upholding various restrictions on speech with specific reference to subject matter 2 must recognize the hyperbole in the dictum: “But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department of Chicago v. Mosley, 408 U. S. 92, 95 , quoted in part, ante, at 537. Indeed, if that were the law, there would be no need for the Court’s detailed rejection of the justifications put forward by the State for the restriction involved in this case. See ante, Part III-C.
There are, in fact, many situations in which the subject matter, or, indeed, even the point of view of the speaker, may provide a justification for a time, place, and manner regulation. Perhaps the most obvious example is the regulation of oral argument in this Court; the appellant’s lawyer precedes his *546 adversary solely because he seeks reversal of a judgment. 3 As is true of many other aspects of liberty, some forms of orderly regulation actually promote freedom more than would a state of total anarchy. 4
Instead of trying to justify our conclusion by reasoning from honeycombed premises, I prefer to identify the basis of decision in more simple terms. See Young v. American Mini Theatres, Inc., 427 U. S. 50, 65-66 . A regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a “law . . . abridging the freedom of speech, or of the press.” 5 A regulation that denies one group of persons the right to address a selected audience on “controversial issues of public policy” is plainly such a regulation.
The only justification for the regulation relied on by the New York Court of Appeals is that the utilities’ bill inserts may be “offensive” to some of their customers. 6 But a com *547 munication may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive — perhaps because it is too loud 7 or too ugly in a particular setting. 8 Other *548 speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker’s message. The fact that the offensive form of some communication may subject it to appropriate regulation surely does not support the conclusion that the offensive character of an idea can justify an attempt to censor its expression. Since the Public Service Commission has candidly put forward this impermissible justification for its censorial regulation, it plainly violates the First Amendment. 9
Accordingly, I concur in the judgment of the Court.
This Court’s Rules 15, 16, 21, 22, 33, 34, 36 (effective June 30, 1980).
See, e. g., NLRB v. Retail Store Employees, post, p. 607 (labor picketing at site of neutral third parties in labor dispute); Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (in-person solicitation of legal business, distinguished from other forms of legal advertising); FCC v. Pacifica Founder tion, 438 U. S. 726 (indecent language in early afternoon radio broadcast); Young v. American Mini Theatres, Inc., 427 U. S. 50 (zoning of “adult” movie theaters); Greer v. Spock, 424 U. S. 828 (partisan political speeches on military base); Lehman v. Shaker Heights, 418 U. S. 298 (political advertising on municipal transit system); Schenck v. United States, 249 U. S. 47, 52 (Holmes, J.): “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” See also cases cited in American Mini Theatres, supra, at 67-71.
See generally Farber, Content Regulation and the First Amendment:
A Revisionist View, 68 Geo. L. J. 727 (1980); Note, Pacifica Foundation v. FCC: “Filthy Words,” the First Amendment and the Broadcast Media, 78 Colum. L. Rev. 164 (1978).
This Court’s Rule 38.2. For the same reason, the color of his brief must be blue rather than red. Rule 33.2 (b) (3).
“Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.” Cox v. New Hampshire, 312 U. S. 569, 574 .
Cf. Bed Lion Broadcasting Co. v. FCC, 395 U. S. 367, 375 ; Cox v. Louisiana, 379 U. S. 536, 554 .
The First Amendment provides:
“Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .”
In a series of decisions beginning with Gitlow v. New York, 268 U. S. 652 , this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the Federal Government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. See Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 500, n. 8 .
“When the insert espouses the utility’s viewpoint on a controversial question, it is as likely to offend the sensibilities of the recipient as it is to elicit agreement. Government need not stand idly by and deny assistance *547 to those who are inflamed by having a particular opinion foisted upon them.” 47 N. Y. 2d 94, 106, 390 N. E. 2d 749, 755 (1979).
Kovacs v. Cooper, 336 U. S. 77 . See id., at 97 (Frankfurter, J., concurring):
“So long as a legislature does not prescribe what ideas may be noisily expressed and what may not be, nor discriminate among those who would make inroads upon the public peace, it is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection. Without such opportunities freedom of thought becomes a mocking phrase, and without freedom of thought there can be no free society.”
In his dissenting opinion, Mr. Justice Rutledge, referring to sound trucks in public places, stated that he had “no doubt of state power to regulate their abuse in reasonable accommodation, by narrowly drawn statutes, to other interests concerned in use of the streets and in freedom from public nuisance.” Id., at 105 .
See FCC v. Pacifica Foundation, supra, at 745-746 (opinion of Stevens, J.):
“The question in this ease is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content. Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. Roth v. United States, 354 U. S. 476 . But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission’s characterization of the Carlin monologue as offensive could be traced to its political content — or even to the fact that it satirized contemporary attitudes about four-letter words — First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: ‘[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step *548 to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ Chaplinsky v. New Hampshire, 315 U. S., at 572.” (Footnotes omitted.)
See also Paris Adult Theatre I v. Slaton, 413 U. S. 49, 84 (BREnnan, J., dissenting): “[T'Jhe obscenity of any particular item may depend upon nuances of presentation and the context of its dissemination. . . . Redrup [v. New York, 386 U. S. 767 ,] itself suggested that obtrusive exposure to unwilling individuals, distribution to juveniles, and ‘pandering’ may also bear upon the determination of obscenity.”
1 recognize that in this Court the Commission has also tried to defend its regulation on the ground that it is entitled to allocate limited resources in the public interest and to guarantee that ratepayers do not subsidize these communicative activities. I agree with the Court’s explanation of why there is no merit to either of these suggestions. See ante, at 542-543.
Even viewing the restriction as merely a neutral subject-matter regulation (controversial issues generally) as may have been intended initially by the Commission, rather than a restriction of a particular viewpoint (the utilities’ opinions on those issues), I still believe it to be unconstitutional. For the use of the “controversial” nature of speech as the touchstone for its regulation threatens a value at the very core of the First Amendment, the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” See New York Times Co. v. Sullivan, 376 U. S. 254, 270 .