Amicus Brief — Consolidated Edison Co. of New York v. Public Service Commission

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cy f

sg ER Court of the United States.

OCTOBER TERM, 1979.

IN THE LAN

’ No. 79-134.

CONSOLIDATED EDISON COMPANY

OF NEW YORK, INC.,

APPELLANT,

Vv.

PUBLIC SERVICE COMMISSION OF THE

STATE OF NEW YORK,

APPELLEE.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK.

Motion of New England Legal Foundation for Leave

to File Brief as Amicus Curiae, and Brief of

Amicus Curiae New England Legal Foundation

in Support of Appellant.

WILLIAM H. BECKER,

LANDFIELD, BECKER, GREEN & FRENCH,

Suite 950,

1819 H Street, N.W.,

Washington, D.C. 20006.

(202) 293-1919

HARRISON A. FIvcH,

New England Legal Foundation,

110 Tremont Street,

Boston, Massachusetts 02108.

(617) 482-1410

ADDISON C. GETCHELL & SON, INC. - THE L/.WYERS’ PRINTER - BOSTON

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Table of Contents.

Motion of New England Legal Foundation for Leave

to File Brief as Amicus Curiae 1

Brief of Amicus Curiae New England Legal Foundation

in Support of Appellant

4

Introductory Statement 4

Questions Presented 5

Summary of Argument 6

Argument 6

I. The Right to Receive Information 6

II. The Commission’s Bill Insert Ban Is Unconsti-

tutionally Vague 14

III. The Commission’s Bill Insert Ban Is a Content

Related Regulation 18

Conclusion 22

Table of Authorities Cited.

CASES.

Bates v. Little Rock, 361 U.S. 516 (1960) 16

Buckley v. Valeo, 424 U.S. 1 (1976) 9,14, 16

C & C Plywood Corp. v. Hanson, 420 F. Supp. 1254

(D. Mont. 1976), appeal docketed, No. 76-3118,

9th Cir. 9n.

Elrod v. Burns, 427 U.S. 347 (1976) 16

First National Bank of Boston v. Bellotti, 435 U.S.

765 (1978) 2,9, 10, 18, 15

Garrison v. Louisiana, 379 U.S. 64 (1964) 8-9, 14

Grayned v. City of Rockford, 408 U.S. 104 (1972) 14, 15

ii TABLE OF AUTHORITIES CITED.

Griswold v. Connecticut, 381 U.S. 479 (1965) 7

Kovacs v. Cooper, 336 U.S. 77 (1949) 22

Lamont v. Postmaster General, 381 U.S. 301 (1965) 7n.

Lehman v. City of Shaker Heights, 418 U.S. 298

(1974) 21n.

Minarcini v. Strongsville City Schooi District,

541 F. 2d 577 (6th Cir. 1976) 7n.

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) 16

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 7-8

Pacific Gas and Electric Company v. Berkeley, 60 Cal.

App. 3d 123, 131 Cal. Rptr. 350 (1976) 9n.

Pickering v. Board of Education, 391 U.S.

563 (1968) 8, 10

Police Department of the City of Chicago v. Mosley,

408 U.S. 92 (1972) 20, 21

Procunier v. Martinez, 416 U.S. 396 (1974) 8n.

Public Utilities Commission v. Pollak, 343 U.S. 451

(1952) 21n.

Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S.

367 (1969) 8

Roth v. United States, 354 U.S. 476 (1957) 21

Smith v. California, 361 U.S. 147 (1959) 15

Stanley v. Georgia, 394 U.S. 557 (1969) 7n.

Thornhill v. Alabama, 310 U.S. 88 (1940) 13

Vanasco v. Schwartz, 401 F. Supp. 87 (S.D. N.Y.

1975), aff'd, 423 U.S. 1041 (1976) 9

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748

(1976) 7,11, 12, 20n.

TABLE OF AUTHORITIES CITED. ili

Young v. American Mini Theaters, Inc., 427 U.S. 50

(1976) 20

CONSTITUTIONAL PROVISIONS,

United States Constitution:

First Amendment 2, 3, 7, 8, 9, 10, 11,

12, 18, 14, 18, 19, 21, 22, 23

Fourteenth Amendment 14, 18

RULES,

Rules of the Supreme Court, Rule 42 1

MISCELLANEOUS.

Black, He Cannot Choose But Hear: The Plight of the

Captive Auditor, 43 Colum. L. Rev. 960 (1953) 21n.

Black, Hugo LaFayette, A Constitutional Faith

(Alfred A. Knopf, New York 1968) 22n.

New England River Basins Commission, New England

Dependence on Petroleum Products (1976) lin.

Stone, Restrictions of Speech Because of its Content:

The Peculiar Case of Subject Matter Restrictions,

46 U. Chi. L. Rev. 81 (1978) 19n.

IN THE

Supreme Court of the United States.

OCTOBER TERM, 1979.

No. 79-134.

CONSOLIDATED EDISON COMPANY

OF NEW YORK, INC.,

APPELLANT,

Vv.

PUBLIC SERVICE COMMISSION OF THE

STATE OF NEW YORK,

APPELLEE,

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK.

Motion of New England Legal Foundation for Leave

to File Brief as Amicus Curiae.

Pursuant to Rule 42 of the Rules of the Supreme Court,

New England Legal Foundation moves the Court for leave to

file its brief as amicus curiae bound with this motion in sup-

port of appellant.

New England Legal Foundation has the consent of counsel

for appellant and counsel for appellee to the filing of this

brief. Copies of the letters of counsel granting consent are on

file with the Clerk of Court.

New England Legal Foundation (NELF) is a non-profit,

tax-exempt corporation, organized and existing under the

laws of the Commonwealth of Massachusetts for the purpose

of engaging in litigation on matters affecting the broad public

2

interest. Policy for NELF is set by a board of directors com-

posed of New England citizens, the majority of whom are at-

torneys. The board evaluates the merits of any contemplated

legal action and authorizes such legal action only where the

Foundation’s position has broad support within the general

community. ,

New England Legal Foundation participated in First Na-

tional Bank of Boston v. Bellotti, 435 U.S. 765 (1978) as

counsel for amicus curiae The New England Council, Inc.

The Foundation, due to its unique public interest perspec-

tive and established interest in First Amendment issues in-

volving the New England business community, can provide

the Court with a more complete argument of the issues in this

case.

It is New England Legal Foundation’s position that it is

patently erroneous to uphold the decision of the Public Utility

Commission of the State of New York (Commission) that pub-

lic utilities do not have the right to disseminate information

to the general public concerning the utility’s ability to provide

energy.

NELF is particularly concerned that the decision of the

Court of Appeals of the State of New York will have a chilling

effect on freedom of speech. The decision ignores the right of

members of the public, including contributors of NELF, to

hear the views of utilities on an issue: 7.e., energy, which

substantially affects every person, corporate and individual,

in New England. The effect of the decision of the New York

Court of Appeals is to abridge the public’s right to hear

robust debate on a significant political and economic issue.

At a time when the nation, and New England in particular,

is hampered by high energy costs, uncertainty of energy sup-

ply, a high unemployment rate and stagnant business

development, it is particularly important for the public to

hear all points of view on energy issues.

3

Members of the public are entitled to hear corporate view-

points so as to have an opportunity to be fully informed. The

right to hear uninhibited, wide-open debate, guaranteed by

the First Amendment, is severely jeopardized by the Court of

Appeals of New York.

For the foregoing reasons New England Legal Foundation

respectfully requests permission to participate as amicus

curiae and to file the attached brief in support of appellant.

By its Attorneys,

WILLIAM H. BECKER,

LANDFIELD, BECKER, GREEN & FRENCH,

Suite 950,

1819 H Street, N.W.,

Washington, D.C. 20006.

(202) 293-1919

HARRISON A. FITCH,

New England Legal Foundation,

110 Tremont Street,

Boston, Massachusetts 02108.

(617) 482-1410

IN THE

Supreme Court of the United States.

OCTOBER TERM, 1979.

No. 79-134.

CONSOLIDATED EDISON COMPANY

OF NEW YORK, INC.,

APPELLANT,

Vv.

PUBLIC SERVICE COMMISSION OF THE

STATE OF NEW YORK,

APPELLEE.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK.

Brief of Amicus Curiae New England Legal Foundation

in Support of Appellant.

Introductory Statement.

New England Legal Foundation, a non-profit corporation,

broadly representative of New England interests, files this

brief as amicus curiae in support of appellant.

Foremost, the brief discusses the serious infringement of

the public’s right to hear resulting from the order and deci-

sion of the Public Service Commission of the State of New

York. The effect of the decision is to chill debate on an

issue of great public importance. If the legislative and judicial

actions challenged here are allowed to stand, legislatures

could restrict the speech of all forms of corporate organiza-

ae

'

5

tions and regulated industries by merely finding that par-

ticular matters involve “controversial’’ issues.

Public utilities and their consumers are confronted with in-

creasing prices and shortness of supply. The issues facing the

utility industry today include fuel shortages, coal conversion

and the development of nuclear power to reduce the nation’s

debilitating dependence on foreign oil. Each of these issues is

the subject of debate, not only by the legislative and ex-

ecutive branches of government but also by consumers. It is

imperative that government be prohibited from stifling the

free flow of information on issues of such importance; other-

wise, intelligent self-government will be impossible.

New England Legal Foundation adopts appellant’s descrip-

tion of the opinions, the order of the Public Service Commis-

sion of New York at issue and appellant’s statement of the

case. .

Questions Presented.

New England Legal Foundation believes that this appeal

presents the following issues:

1. Whether the order of the Public Service Commission

of New York as upheld by the Court of Appeals of

New York infringes upon the right of the public to

hear.

2. Whether the Court of Appeals of New York erred in

holding that the Commission’s bill insert ban is not

unconstitutionally vague. '

3. Whether the Court of Appeals of New York erred in

holding that the Commission’s bill insert ban is not a

content-based regulation.

6

Summary of Argument.

Any intrusion upon the right of free expression is so

dangerous to full and free debate that this Court should over-

rule any attempt of state regulatory agencies to limit the

right of parties to speak and the right of the public to hear.

Particular points made in this brief are:

1. The right to hear free and unrestrained expression on

matters of public concern is fundamental to this soci-

ety. Any restriction upon free expression, however

erroneous or disagreeable such expression may be, is

abhorrent to the most treasured freedom upon which

this country was founded. Even if it were so that the

development of nuclear power was not favored by the

Public Service Commission, the public has a right to

know the position of utility corporations on this sub-

ject. If development of nuclear power is in its best in-

terest, the public has a right to know because utility

corporations may act upon their beliefs.

2. The standard for the Public Service Commission’s

ban is incapable of precise definition, vague and im-

possible to follow.

3. The Public Service Commission’s ban is an un-

constitutional prohibition against the content of

speech. Logical extension of the principle involved in

the ban would permit administrative rulings which

could stifle free speech by all forms of corporations

and regulated industries.

Argument.

I. THE RIGHT TO RECEIVE INFORMATION,

The New York State Court of Appeals in its decision up-

holding the order of appellee, Public Service Commission of

7

New York, failed to consider the right of the public to receive

the information which would be enclosed in the appellant

Consolidated Edison’s bill inserts. See Appendix A, Ap-

pellant’s Jurisdictional Statement (AJS).! It is well estab-

lished that the First Amendment confers the right to receive

information as well as the right to communicate. ‘The right

of freedom of speech and press includes ... the right to

receive, the right to read ....” Griswold v. Connecticut, 381

U.S. 479, 482 (1965).

The Supreme Court reaffirmed this basic concept in

Virginia State Board of Pharmacy v. Virginia Citizens Con-

sumer Council, Inc., 425 U.S. 748 (1976), in which the right of

the public to receive advertising concerning the price of

prescription drugs was affirmed. This Court stated:

Freedom of speech presupposes a willing speaker. But

when a speaker exists, as is the case here, the protection

afforded is to the communication, to its source and to its

recipients both. This is clear from the decided cases. 425

U.S. at 756.

The Supreme Court has explicitly recognized that the First

Amendment includes the right to receive information in a

broad variety of contexts.? In New York Times Co. v. Sul-

1 This case was instituted by a complaint filed with the Public

Service Commission of New York by Natural Resources Defense

Council, Inc. (NRDC) objecting to a Consolidated Edison bill insert

discussing the need for nuclear power. NRDC is a non-profit

organization whose purposes include conserving natural resources.

NRDC has been active in fighting nuclear proliferation.

? The First Amendment right to know has been recognized in the

context of preventing censorship of literature. See, e.g., Lamont v.

Postmaster General, 381 U.S. 301 (1965), acknowledging the right

of the public to receive foreign literature, without the chilling ef-

fect of registering with the post office; Minarcini v. Strongsville

City School District, 541 F. 2d 577 (6th Cir. 1976), preventing the

banning of books in high school classes and libraries. See also,

Stanley v. Georgia, 394 U.S. 557, 564 (1969), where the Court

8

livan, 376 U.S. 254 (1964), this Court interpreted the First

Amendment to include equal protection for a person’s right

to know as much as for a person’s right to speak. And in Red

Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969), this

Court, upholding the Federal Communications Commission’s

fairness doctrine which requires television and radio stations

to provide reply time to individuals and organizations

disagreeing with their editorials, stated:

It is the right of the viewers and listeners, not the right

of the broadcasters, which is paramount. [Citations omit-

ted.] It is the purpose of the First Amendment to

preserve an uninhibited marketplace of ideas in which

truth will ultimately prevail, rather than to countenance

monopolization of that market, whether it be by the

Government itself or a private licensee. ... It is the

right of the public to receive suitable access to social,

- political, esthetic, moral and other ideas and experiences

which is crucial here. That right may not constitutionally

be abridged either by Congress or by the FCC. 395 U.S.

at 390.

The First Amendment right to know has also been

recognized in cases involving political speech. This Court has

recognized that ‘“[t]he public interest in having free and

unhindered debate on matters of public importance”’ is ‘‘the

core value of the Free Speech Clause of the First Amend-

ment.” Pickering v. Board of Education, 391 U.S. 563, 573

(1968). Similarly in Garrison v. Louisiana, 379 U.S. 64 (1964)

the Court held:

[S}peech concerning public affairs is more than self-

expression; it is the essence of self government. The

the right to receive obscene films; and Procunier v.

Martinez, 416 U.S. 396 (1974), recognizing the right of individuals

who wish to communicate with prisoners to receive the information

contained in the writings of the prisoners.

9

First and Fourteenth Amendments embody our “‘pro-

found national commitment to the principle that debate

on public issues should be uninhibited, robust, and wide-

open ....” 379 U.S. at 74-75.

With such cases in mind a district court recently stated:

“Free debate on public issues is essential to the survival of

the Republic. It hardly needs repeating that such speech

should be ‘uninhibited, robust and wide-open.’ ’”’ Vanasco v. .

Schwartz, 401 F. Supp. 87, 97 (S.D. N.Y. 1975), affd, 423

U.S. 1041 (1976).

This point was again emphasized in the context of political

campaigns? in Buckley v. Valeo, 424 U.S. 1, 14 (1976) where

the Court observed that discussion of political affairs is ‘“‘an

area of the most fundamental First Amendment activities,”’

and “[d]iscussion of public issues and debate on the qualifica-

tions of candidates are integral to the operation of the system

of government established by our Constitution.”’

The First Amendment guarantee of free speech, including

the right to know, is designed to facilitate reasoned, informed

self-government in a democratic society. This principle was

recently reaffirmed in First National Bank of Boston v.

Bellotti, 435 U.S. 765 (1978).

Moreover, the people in our democracy are entrusted

with the responsibility for judging and evaluating the

relative merits of conflicting arguments. They may con-

sider, in making their judgment, the source and

credibility of the advocate. But if there be any danger

that the people cannot evaluate the information and

8 See also First National Bank of Boston v. Bellotti, 485 U.S. 765

(1978); Pacific Gas and Electric Company v. Berkeley, 60 Cal. App.

3d 123, 131 Cal. Rptr. 350 (1976); C & C Plywood Corp. v. Hanson,

420 F. Supp. 1254 (D. Mont. 1976), appeal docketed, No. 76-3118,

9th Cir. All involved corporate participation on referendum ques-

tions.

10

arguments advanced by appellants, it is a danger con-

templated by the Framers of the First Amendment. 435

US. at 792.

In First National Bank of Boston v. Bellotti, the Court held

unconstitutional a Massachusetts statute which prohibited

corporations from making expenditures to influence the out-

come of referenda, unless such questions ‘‘materially” af-

fected the company’s property, business or assets. The Court

stated that the case involved ‘“‘... the type of speech in-

dispensable to decisionmaking in a democracy, and this is no

less true because the speech comes from a corporation.”’ 435

U.S. at 777.

In Pickering v. Board of Education, this Court held that the

First Amendment protected the right of a school teacher to

express his opinion on the wisdom of approving a bond issue

for educational purposes.

On such a question free and open debate is vital to in-

formed decisionmaking by the electorate. Teachers are,

as a class, the members of a community most likely to

have informed and definite opinions as to how funds

allotted to the operation of the schools should be spent.

Accordingly, it is essential that they be able to speak out

freely on such questions without fear of retaliatory

dismissal. 391 U.S. at 571-72.

Similarly, appellant here is uniquely informed about the ef-

fect of nuclear generated electricity upon the New York

ratepayer, and the effect it may have upon business desiring

to locate in New York.

The decision by a utility to generate electricity by nuclear

power is certainly a matter of concern to ratepayers. The

public, including the ratepayers of New York, is intimately

affected by the ability of utilities to provide adequate

baseload electricity for heat and other necessities. Therefore,

11

the public has a vital interest in receiving information about

how that power will be provided.

The public’s right to receive such information exists in-

dependent of whether the Public Service Commission decides

that a particular issue is “controversial” or ‘‘non-

controversial.” If utilities believe that the public perception

of nuclear power will create a climate adverse to their in-

terests, that belief may affect their ability to expand or even

to maintain operations at current levels. The ratepayers are

entitled to be informed of the concerns of the utilities in order

to make informed, reasoned decisions on public issues.

Even assuming, arguendo, that Consolidated Edison’s

views on the desirability of nuclear power are wrong, there

still would be no justification for preventing the public from

hearing the utility’s point of view. It is not relevant to the

First Amendment whether a speaker’s views are accurate. In

his concurring opinion in Virginia State Board of Pharmacy

v. Virginia Citizens Consumer Council, Inc., Mr. Justice

Stewart drew a distinction between commercial price and

product advertising, as to which factual advertising may be

required, and ideological communications as to which ac-

curacy may not be required.

Ideological expression, be it oral, literary, pictorial, or

theatrical, is integrally related to the exposition of

thought—thought that may shape our concepts of the

whole universe of man. Although such expression may

convey factual information relevant to social and in-

* For example, electricity in New England is generated princi-

pally by oil from foreign sources. In 1973 imported oil accounted

for 34% of demand; in 1976 it accounted for 56%. Distillate fuel oil

produced from foreign sources accounted for 65% of New

England’s needs and 71% of its gasoline in 1976. New England

_ River Basins Commission, New England Dependence on Petroleum

Products (1976). The development of nuclear power could reduce

3 reliance of New England ratepayers on foreign oil and the cost

of energy.

12

dividual decisionmaking, it is protected by the Constitu-

tion, whether or not it contains factual representations

and even if it includes inaccurate assertions of fact. In-

deed, disregard of the ‘‘truth” may be employed to give

force to the underlying idea expressed by the speaker.

“Under the First Amendment there is no such thing as a

false idea,” and the only way that ideas can be sup-

pressed is through ‘‘the competition of other ideas.’”’ 425

U.S. at 779-80.

The decision of the Court of Appeals of New York which

seeks to keep the ratepayers ignorant of Consolidated

Edison’s views on political issues appears to be motivated

solely by the fear that the utility’s view might be accepted by

the public. Such an approach is repugnant to the First

Amendment. As the Supreme Court stated in Virginia State

Board of Pharmacy v. Virginia Citizens Consumer Council,

Ine.:

There is, of course, an alternative to this highly pater-

nalistic approach. [Preventing pharmacists from adver-

tising the price of prescription drugs.] That alternative is

to assume that this information is not in itself harmful,

that people will perceive their own best interests if only

they are well enough informed, and that the best means

to that end is to open the channels of communication

rather than to close them. ... But the choice among

these alternative approaches is not ours to make or the

Virginia General Assembly’s. It is precisely this kind of

choice, between the dangers of suppressing information,

and the dangers of its misuse if it is freely available, that

the First Amendment makes for us. 425 U.S. at 770.

The speech proposed by Consolidated Edison is at the heart

of the First Amendment.

The freedom of speech and of the press guaranteed by

the Constitution embraces at the least the liberty to

13

discuss publicly and truthfully all matters of public con-

cern without previous restraint or fear of subsequent

punishment. ... Freedom of discussion, if it would fulfill

its historic function in this nation, must embrace all

issues about which information is needed or appropriate

to enable the members of society to cope with the exigen-

cies of their period. Thornhill v. Alabama, 310 U.S. 88,

101-102 (1940).

The public in general has a particular interest about the

views of utility companies on the adequacy of energy supply.

The fact that utilities operate in a non-competitive market is

simply irrelevant. AJS App. A, p. 12a. In these days of rapid-

ly increasing energy prices the free flow of information from

Consolidated Edison to its ratepayers could mean the dif-

ference between having or not having basic necessities.

Without question, inadequate supplies are an exigency of this

period.®

In First National Bank of Boston v. Bellotti, this Court

ruled that corporate speech is entitled to First Amendment

protection, even when such speech deals with matters

unrelated to the corporation’s business interests. In the free

discussion of governmental affairs, the nature of the speaker

is not constitutionally significant. The Court noted that

[t]he inherent worth of the speech in terms of its capacity

for informing the public does not depend upon the iden-

tity of its source, whether corporation, association, union

or individual. 435 U.S. at 777.

5 The New York Court of Appeals underestimates the value of in-

formation contained in the bill inserts to informed public decision

making: “‘At best consumers might seek, through the Public Ser-

vice Commission to limit future increases in electrical prices.”” AJS

App. A, p. 15a. Limiting increases in electrical prices would be no

small accomplishment given energy shortages and the fact that

electricity is a necessity.

14

In its bill inserts, Consolidated Edison informs customers

of the advantages of nuclear power and of its decision to

develop such power. This is an issue intimately related to

Consolidated Edison’s business. And the information Con-

solidated Edison seeks to disseminate is “political” in nature:

“‘... speech concerning public affairs is more than self-

expression; it is the essence of self-government.” Garrison v.

Louisiana, 379 U.S. at 74-75.

It is clear then, that the debate on nuclear power is pre-

cisely the kind of speech that the First Amendment is de-

signed to protect and that Consolidated Edison’s right to

communicate on this “controversial matter” is entitled to

First Amendment protection. Protection of the public’s right

to hear uninhibited, robust and wide-open debate requires

reversal of the decision of the New York State Court of Ap-

peals and a declaration that the ruling of the Public Service

Commission, here in issue, is unconstitutional as repugnant

to the First Amendment.

II. THE CoMMISSION’s BILL INSERT BAN Is

UNCONSTITUTIONALLY VAGUE.

Appellee contends that the Commission’s bill insert ban is

sufficiently specific to avoid violating the Fourteenth Amend-

ment. Appellee’s Motion to Dismiss Appeal or Affirm Judg-

ment Below, 17-19. It is a fundamental principle of Due

Process that a statute is unconstitutionally vague if the con-

duct it prohibits is not clearly defined. Buckley v. Valeo,

supra, 424 U.S. at 40-41; Grayned v. City of Rockford, 408

U.S. 104, 108 (1972). It is also a fundamental rule of law that

“stricter standards of permissible .. . vagueness may be ap-

plied to a statute having a potentially inhibiting effect on

speech; a man may the less be required to act at his peril here,

15

because the free dissemination of ideas may be the loser.”

Smith v. California, 361 U.S. 147, 151 (1959).

In Grayned v. City of Rockford, this Court reviewed the

problems created by vaguely drawn statutes:

... Vague laws offend several important values. First,

because we assume that man is free to steer between

lawful and unlawful conduct, we insist that laws give the

person of ordinary intelligence a reasonable opportunity

to know what is prohibited, so that he may act accord-

ingly. Vague laws may trap the innocent by not pro-

viding fair warning. Second, if arbitrary and

discriminatory enforcement is to be prevented, laws

must provide explicit standards for those who apply

them. A vague law impermissibly delegates basic policy

matters to policemen, judges, and juries for resolution on

an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.

Third, but related, where a vague statute ‘‘abut{s] upon

sensitive areas of basic First Amendment freedoms,”’ it

“operates to inhibit the exercise of [those] freedoms.”

Uncertain meanings inevitably lead citizens to “ ‘steer

far wider of the unlawful zone’. . . than if the boundaries

of the forbidden areas were clearly marked.” 408 U.S. at

108-109.

As this Court recently stated in First National Bank of

Boston v. Bellotti:

In the realm of protected speech, the legislature is con-

stitutionally disqualified from dictating the subjects

about which persons may speak and the speakers who

may address a public issue. 435 U.S. at 784-785.

Thus the constitutionality of the Commission’s ban on bill

inserts depends upon whether its ruling can withstand the ex-

acting scrutiny necessitated by the restrictions it imposes on

freedom of speech. Here, where the prohibition is directed at

speech itself, and the speech is intimately related to the pro-

16

cess of governing, the state may prevail only upon showing a

subordinating interest which is compelling. Bates v. Little

Rock, 361 U.S. 516, 524 (1960); N.A.A.C.P. v. Button, 371

U.S. 415, 438-439 (1963).

Further, New York bears the burden of showing the exist-

ence of a compelling state interest in regulating the speech at

issue, Elrod v. Burns, 427 U.S. 347, 362 (1976). And the state

must employ means “closely drawn to avoid unnecessary

abridgment.” Buckley v. Valeo, supra at 25.

The Public Service Commission of New York provided ab-

solutely no standards to guide appellant on the use of bill in-

serts. The Commission’s order states:

... [we] ... order all utilities to discontinue the practice

of utilizing bill inserts as a mechanism for the dissemina-

tion of a utility’s position on controversial matters of

public policy. AJS App. F, p. 58a.

The standard imposed, 1.¢., ‘“controversial matters of public

policy” is excessively vague. Its application leads to no dis-

cernable result. The pre-publication factual judgment the

utility is required to make is incapable of precise definition,

and cannot be made with certainty.

The subjective and imprecise nature of the ban is evident in

the reasoning of the Commission. The Commission argues

that:

The expression of a utility’s views on a controversial

. issue may truly reflect its concern for the welfare of its

consumers and may make a genuine contribution to a

public policy debate; but we believe that it is basically un-

fair to assess against ratepayers the cost of advertise-

ments urging the adoptions of positions with which they

may disagree. AJS App. E, p. 42a.

The Commission further states:

We include in this category expenses designed to influ-

ence public opinion in the current debate concerning the

development of nuclear power. AJS App. E, p. 48a.

Practical difficulties with the standard abound. First, in the

1950’s and 60’s, nuclear power was not a “controversial

17

issue.’’ Its virtues as a cheap, clean, virtually limitless source

of power were extolled by utilities, regulators, politicians and

the general public alike. Will nuclear power become ‘“‘non-

controversial” if there is another oil embargo?

The New York Supreme Court, Appellate Division® also ex-

perienced difficulty with the Commission’s standard:

We have little doubt that the PSC and the utilities are

capable of distinguishing useful information for con-

sumers (e.g., ways to conserve energy) from manage-

ment’s statement on the political issues of the day (e.g.,

benefits of nuclear power). AJS App. B, p. 19a. (Em-

phasis added.)

The Appellate Division offers no explanation of why informa-

tion about the development of nuclear power cannot be both

“useful” and “political.” Yet considering the effect of the

development of nuclear power on the ratepayers such infor-

mation is clearly useful and considering the extensive na-

tional debate on the subject it is clearly political.

In fact the Court substituted an imperfect standard

(“useful’’) for the Commission’s already unconstitutionally

vague (“controversial”) standard. Neither term is im-

mutable; neither provides guidance as to what is permitted

and what is not. The Court’s standard is not only vague, it is

impossible to apply in advance of regulatory and judicial in-

terpretation.

The regulators and the regulated will have to determine on

a case by case basis what is “‘useful’’ or ‘‘non-controversial’’

information. In each instance, the Commission’s decisions as

to which issues are controversial will depend upon the Com-

mission’s subjective application of an imperfect and im-

® The opinion of the Court of Appeals of New York does not

discuss appellant’s claim of vagueness but implicitly sustained the

Appellate Division in this regard. See AJS, App. A, p. la-16a.

18

precise standard. This is precisely the situation which the

First and Fourteenth Amendments are designed to prevent.

Finally, the Commission’s ruling as upheld by the Court of

Appeals will have, and has had, a chilling effect on speech.

The Commission states:

Thus far, the Commission has only had occasion to con-

sider two issues with respect to its ban ... the current

debate concerning the development of nuclear power

and questions concerning the merits of public versus

private ownership of electric utilities. In the more than

two years since the ... ban has been in effect, there

have been no problems concerning its implementation.

Appellee’s Motion to Dismiss Appeal or Affirm Judg-

ment Below, p. 17.

The fact that a regulatory agency has experienced no prob-

lems imposing censorship on the industry it regulates is

hardly surprising. Faced with omitting bill inserts, charging

investors for bill inserts or using more expensive means of

publicizing its views, Consolidated Edison simply did

nothing. The Commission’s frontal assault on freedom of

speech has resulted in isolating the ratepayer from the single,

most important source of relevant information on energy

matters, the utility.

The Commission’s standard simply cannot withstand the

exacting scrutiny required by the First and Fourteenth

Amendments. The standard inhibits the exercise of basic

First Amendment freedoms and provides no guidance re-

garding the parameters of the zone of permissible speech.

i ‘III. THE COMMISSION’S BILL INSERT BAN IS A

CONTENT RELATED REGULATION,

The Commission’s ban is a classic example of a content

based restriction. Consolidated Edison is permitted to utilize

19

bill inserts which address conservation and encourage

“development” of off-peak loads, which could lessen the

country’s dependency on foreign oil. AJ S App. A, p. 5a. Con-

solidated Edison is not permitted to discuss nuclear power as

a conservation mechanism, despite the fact that increased

utilization of nuclear fuel might also lessen the nation’s

dependency on foreign oil.

In support of its ban on “controversial” matters of public

policy on bill inserts the Commission states:

We realize, too, that a continued ban on promotion of off-

peak electric usage may aptly be described as piecemeal

conservationism. ... Nevertheless conservation of

energy remains our highest priority. AJS App. E, p. 36a.

This reasoning is constitutionally infirm. Because the Com-

mission has set conservation as a goal, the Commission bans

speech making a certain position. In essence, the Commission

views discussion of nuclear power as synonomous with a

“false,” “wrong” or “bad” idea.” Any government effort to

suppress speech because the government does not agree with

the idea communicated, and does not trust the individual re-

cipient to decide wisely, is plainly inconsistent with the First

Amendment:

Necessarily, then, under the Equal Protection Clause,

not to mention the First Amendment itself, government

may not grant the use of a forum to people whose views

it finds acceptable, but deny use to those wishing to ex-

press less favored or more controversial views. And it

may not select which issues are worth discussing or

debating in public facilities. There is an “equality of

status in the field of ideas,” and government must afford

7 See generally, Stone, Restrictions of Speech Because of its Con-

tent: The Peculiar Case of Subject Matter Restrictions, 46 U. Chi. L.

Rev. 81 (1978).

20

all points of view an equal opportunity to be heard. Once

a forum is opened up to assembly or speaking by some

groups, government may not prohibit others from

assembling or speaking on the basis of what they intend

to say. Selective exclusions from a public forum may not

be based on content alone, and may not be justified by

reference to content alone. Police Department of the City

of Chicago v. Mosley, 408 U.S. 92, 96 (1972).

Where there is regulation of the content of speech there is a

“... need for abso.ute neutrality by the government; its

regulation of communication may not be affected by sym-

pathy or hostility for the point of view being expressed by the

communicator.” Young v. American Mini Theaters, Inc., 427

U.S. 50, 67 (1976).

It is apparent not only that Consolidated Edison and the

Commission will (and have) experienced great difficulty in

categorizing particular matters as controversial, but also

that, in large part, the ultimate determination as to what is

controversial is left to special interest groups such as NRDC,

Inc. Here the government has acted on the complaint of

NRDC, Inc., an avowed anti-nuclear group, to restrict speech

about nuclear power. These proceedings were instituted by

NRDC, Inc., not the Commission. Thus, the constitutional er-

ror is compounded. The Commission not only accepted the

viewpoint of one group, it acted to silence opposing views.

The vagueness of the Commission’s ruling and its inter-

pretation by the New York Court of Appeals indicates a

hostility for Consolidated Edison’s views. The regulation

does not define speech in terms of time, place and manner but

in terms of subject matter.® The regulation “‘... thus slip[{s]

* A valid time, place and manner restriction must be content

neutral, supported by significant government interest and not

foreclose alternate chatthals of communication. Virginia State

Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,

425 U.S. 748, 771 (1976).

21

from the neutrality of time, place and circumstance into a

concern about content.’ ”’ Police Department of the City of

Chicago v. Mosley, supra at 99. The fundamental underpin-

nings of the First Amendment are jeopardized by this ill-

conceived attempt to isolate ratepayers from the political

process.® In Roth v. United States, 354 U.S. 476, 484 (1957)

the Court stated that, “[the Constitutional safeguard] was

fashioned to assure unfettered interchange of ideas for the

bringing about of political and social changes desired by the

people.”

There is simply no factual basis for the assertion that “‘no

one viewpoint is singled out for special treatment ....”’ AJS

App. A, p. 9a. The opposite is true. The Commission’s order

was spawned by a complaint about the utility’s view on

nuclear power. Nuclear power is the controversial issue of

public importance which is singled out for special treatment.

AJS App. 6, p. 25a.

In Police Department of the City of Chicago v. Mosley, this

Court struck down a city ordinance prohibiting picketing

within 150 feet of a school but excepting peaceful picketing of

any school involved in a labor dispute, because the ordinance

was directed at the content of speech. The Court said: “The

operative distinction is the message on a picket sign.” 408

U.S. at 95. Similarly, here, the restriction is on the content of

speech. “Controversial” messages are banned, “non-contro-

* Neither is this a captive audience case. The captive audience

doctrine involves coercion: ‘‘While petitioner clearly has a right to

express his views to those who wish to listen, he te no right to

force his message upon an audience incapable of declining to

receive it,” Lehman v. City of Shaker Heights, 418 U.S. 298, 307

(1974). Here the recipient can discard the bill insert; he is not a cap-

tive. See also Public Utilities Commission v. Pollak, 343 U.S. 451,

468-69 (1952) (Douglas, J., dissenting opinion), and Black, He Can-

not Choose But Hear: The Plight of the Captive Auditor, 43 Colum.

L. Rev. 960 (19583).

22

versial” and “‘useful’”’ messages are permitted. The ban is im-

posed without regard to time, place or manner. Kovacs v.

Cooper, 336 U.S. 77 (1949). Restrictions on speech based

solely on the content of speech, even if applied in ‘‘an objec-

tive and evenhanded” manner are nothing more than censor-

ship. :

Under this approach the state or an administrative agency

may override the First Amendment simply by banning all

speech on a hotly debated issue. Any attempt by government

to suppress debate usurps the right of the people to make

decisions for themselves, distorts the marketplace of ideas

and makes intelligent, self-government impossible. The First

Amendment is plainly offended.

Conclusion.

The right to think, speak and write freely without govern-

ment or special interest group censorship is the essence of

citizenship. Any form of censorship, under whatever guise

presented, reveals a fear that citizens cannot think for

themselves, and perhaps more important, that the public may

reach a different conclusion than the censor would have it

reach.

As Justice Black once stated: “It is not difficult for in-

genious minds to think up and contrive ways to escape even

the plain prohibitions of the First Amendment.’’?® It is evi-

dent from the record that this case is one more battleground

in the continuing fight for the mind of the citizen. Under

pretense of protecting ratepayers from hearing information

about the “‘controversial” subject of nuclear power, the State

of New York has prohibited speech on the subject. The issue

here is not the development of nuclear power versus conser-

vation, the issue is whether a state regulatory agency may,

on the complaint of some citizens, silence debate among all

citizens.

© Black, Hugo LaFayette, A Constitutional Faith (Alfred A.

Knopf, New York 1968).

23

Protection of political and public expression is fundamen-

tal. If one entity is prevented from expressing itself because

it is a regulated industry, or because the state disagrees with

its view, there is a grave danger that restrictions upon the

free expression of ideas may be applied to other entities.

Charities may be limited in their expressions to matters

which the legislature deems to be within their charitable pur-

poses; special interest groups receiving contributions and

conducting their affairs as corporations may be subjected to

legislative determinations as to matters upon which they may

appropriately speak. The power of the legislature may not be

used to silence opposition, to suppress minority viewpoints,

The public’s right to hear is plainly offended by the power of

government to channel the expression of views.

The danger that this case presents to informed decision-

making requires a firm pronouncement by this Court

upholding the public’s First Amendment right to hear wide-

open, robust debate so that effective government is not im-

paired.

Respectfully submitted,

By its Attorneys,

WILLIAM H. BECKER,

LANDFIELD, BECKER, GREEN & FRENCH,

Suite 950,

1819 H Street, N.W.,

Washington, D.C. 20006.

(202) 293-1919

HARRISON A. FITCH,

New England Legal Foundation,

110 Tremont Street,

Boston, Massachusetts 02108.

(617) 482-1410

Dated November 15, 1979.