Amicus Curiae Brief — Pacific Gas & Electric Co. v. Public Utilities Commission

45)

No. 84-1044 JUL 20 98

in the Supreme Tourt

of the United States

OCTOBER TERM, 1984

PACIFIC GAS AND ELECTRIC COMPANY,

Appellant,

Vv.

PUBLIC UTILITIES COMMISSION OF THE

STATE OF CALIFORNIA, et.al.,

Appellees.

On Appeal from the Supreme Court

of California

Brief of Amicus Curiae State of Oregon

In Support of Appellee Public Utilities

Commission of the State of California

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Deputy Attorney General

*JAMES E. MOUNTAIN, JR.

Solicitor General

RICHARD D. WASSERMAN

Assistant Attorney General

400 Justice Building

Salem, Oregon 97310

Phone: (503) 378-4402

*Counsel of Record

.

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

Statement of Interest of Amicus Curiae ................0000: 1

Neen ene nn nt od d egeceeeevibeteeces 5

Argument

ee ee ee eke me enensbanns 7

Il. The CPUC’s order does not infringe upon

PGandE’s right to speak to its customers in the

billing envelope and, therefore, does not implicate

First Amendment values. ...................55. 8

Ill. The CPUC’s order does not abridge PGandE’s

rights to refrain from associating with the views

of another or from disassociating itself from

EY Gdcdadeccedsdscwescccesceces 13

CHEE GIR ob ep tet a A ht ng a 19

TABLE OF AUTHORITIES

Cases Cited

Abood v. Detroit Board of Education, 431 U.S. 209

COTE) .cccccccceneceencsesenennneneel

Board of Education v. Barnette, 319 U.S. 624 (1943) ...

Bose Corp. v. Consumers Union of U.S., Inc., __. U.S.

—__. , 80 L Ed2d 502 (1984) ........... eee eeees

Consolidated Edison v. Public Serv. Comm’n, 447 U.S.

GSO (RBGR) 2. ccccccccccccccosccscscssscesess

First National Bank of Boston v. Bellotti, 435 U.S. 765

'. PPT || UC

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

CIBVED oc ccccccescoececcensennensnnl

Mills v. Alabama, 384 U.S. 214 (1966) ................

Pruneyard Shopping Center v. Robins, 447 U.S. 74

(GBD) .. ccccccccccccccccoccvesesscesessssss

U.S. 540 (19GB)... ccrcccdccccccccccccccceses

U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S.

B26 CRBGE) no cccccccccccccccosscoscenaeeeeees

Wooley v. Maynard, 430 U.S. 705 (1977) .........++6+-

Young v. American Mini Theatres, 427 U.S. 50 (1976) ..

Constitutional Provisions

Orv. Comat. ast. TV, § 1 .ncccccccccccccccccccccssccss

Other Authorities

Oregon Official 1984 General Election Voters’ Pam-

BRE. cccccccccescccncssscucouenanneeenne

li

1

STATEMENT OF INTEREST OF AMICUS CURIAE

The State of Oregon, through its Attorney General,

appears as amicus curiae in support of appellee California

Public Utility Commission (CPUC or commission) to protect

the interests of the Oregon electorate. By initiative legislation,

the voters of Oregon have required the state’s privately owned

public utilities to include materials prepared by a simul-

taneously created consumer interest group in their customer

billings. This voter-initiated requirement parallels the CPUC

order that the appellant utility here claims violates its First

Amendment rights. This popular mandate similarly is being

challenged by an association of telephone utilities and by

corporations providing gas and telephone service to Orego-

nians in a federal district court action for declaratory and

injunctive relief (Oregon Independent Telephone Ass’n, et al. v.

Citizens’ Utility Board of Oregon, U.S. Dist. Ct. (Or.), Civil No.

85-875).

Oregon’s voters thus have a significant stake in the proper

resolution of the constitutional question presently before the

Court. A comprehensive legislative program, recently

adopted by the electorate to foster public awareness and

involvement in issues relating to public utility regulation, is at

risk. An essential feature of that program, i.e., limited public

access to utility bill mailings, erroneously has been called into

constitutional question.

On November 6, 1984, the people of the State of Oregon,

exercising the initiative power reserved to them by Or. Const.

art. [V,§ 1, created Oregon’s Citizens’ Utility Board (CUB) to ,

2

serve particular public interests. By this enactment, the

voters expressly found

that utility consumers need an effective advocate to

assure that public policies affecting the quality and

price of utility services reflect their needs and inter-

ests, that utility consumers have the right to form an

organization which will represent their interests

before legislative, administrative and judicial bodies,

and that utility consumers need a convenient manner

of contributing to the funding of such an organization

so that it can advocate forcefully and vigorously on

their behalf concerning all matters of public policy

affecting their health, welfare and economic well-

being.

Oregon Official 1984 General Election Voters’ Pamphlet 9

(1984).

The Oregon CUB was designated an “independent non-

profit public corporation’! possessing

all rights and powers necessary to represent and pro-

tect the interests of utility consumers, including but

not limited to the following powers:

(a) To conduct, fund or contract for research, studies,

plans, investigations, demonstration projects and sur-

veys.

(b) To represent the interests of utility consumers

before legislative, administrative and judicial bodies.

‘Contrary to the contention of amici curiae Pacific Northwest Bell

Telephone Company, Pacific Power & Light, and Oregon Independent

Telephone Association the participation of the Oregon Attorney General in

this proceeding does not suggest “that all CUB actions (unlike TURN

actions) are in fact actions of the state.” See Brief of amici curiae Pacific

Northwest Bell Telephone Company et al. at 2 n. 2. The Attorney General

appears here only on behalf of the State of Oregon to represent the interests

of its citizens as embodied in Oregon’s CUB law. In the above-referenced

local litigation challenging the constitutionality of Oregon’s CUB law, CUB

currently is represented by privately retained counsel.

Id.

The CUB law encourages broad consumer membership

and involvement in the organization. Every Oregon resident

18 years of age or older is eligible for membership in the CUB

upon contribution of at least $5 but no more than $100 per

year to the CUB. The Citizens’ Utility Board of Governors is

directed to establish a method whereby economically disad-

vantaged individuals may become members without full pay-

ment of the yearly contribution. Jd. at 9, 10. Initially, the

Oregon CUB is managed by an interim board of directors

appointed by the governor and subject to confirmation by the

Oregon State Senate. After membership reaches 5,000, with a

minimum of 100 members in each state congressional district,

the members shall elect a board of governors, who are subject

to recall by the members. /d. at 9, 10.

Under section 10, the most pertinent provision of the

measure passed by Oregon’s voters, each utility is required

upon the CUB’s request to include in its billings to utility

consumers materials prepared and furnished by the CUB that

conform in size to the dimensions of the utility’s customary

billing envelope. No utility may, however, be required to

include CUB materials in its mailings more than six times per

calendar year, or with less than 30 days’ notice from the

CUB. The CUB must reimburse the utility for a pro rata

share of the postage charges for materials submitted by the

CUB that exceed four-tenths of one ounce avoirdupois. The

CUB must also reimburse the utility for other reasonable

costs the utility incurs in complying with the act. Jd. at 10.

4

Oregon’s CUB law does not provide for any comprehen-

sive state review of the materials submitted by the CUB to

utilities. A utility may complain to the Public Utility Com-

missioner of Oregon that the CUB intentionally has made a

material false statement in messages submitted to a utility for

inclusion with a billing. The commissioner’s sole authority in

that circumstance is to review the complaint expeditiously

and, upon determining that the CUB intentionally has made a

material false statement, to notify the Citizens’ Utility Board

of Governors in writing of the false statement and the reasons

why the commissioner determines the statement to be

false. Id.

Utilities and their officers, employees, armi agents are

prohibited from interfering with the distribution of CUB

materials in periodic utility billings, and from interfering with

the right of utility consumers to contribute to the CUB. In

addition, no utility may change its mailing, accounting, or

billing procedures if the change will interfere with the CUB’s

ability to distribute its materials. These prohibitions are

enforceable by criminal sanctions, as well as by equitable

remedies. Jd. at 10, 11.

Correlative to its authority to submit written materials for

inclusion by utilities in periodic billings, the Oregon CUB has

the power to intervene as of right or otherwise to participate in

any agency proceeding whenever its board of governors deter-

mines that the agency proceeding may affect the interests of

utility consumers. The CUB has standing to seek judicial or

administrative review of agency action, and to intervene or

!

5

otherwise to participate in any proceeding for review or

enforcement of an agency action where the board of governors

determines that the action may affect the interests of utility

consumers. /d. at 10, 11.

The voters of Oregon thus created a mechanism whereby,

through an effective advocate with convenient access to con-

sumer funding, utility consumers may participate before legis-

lative, administrative, and judicial bodies in the creation of

public policies affecting the quality and price of utility services

so that those policies reflect their needs and interests. To

forestall legal challenges that impede implementation of this

program, the State of Oregon appears amicus to make a

fundamental point: A state requirement that a public utility

include consumer materials in periodic billings, as provided by

CPUC’s order under review and by Oregon’s CUB law, does

not implicate, much less violate, the utility’s First Amend-

ment freedoms.

SUMMARY OF ARGUMENT

The California requirement that its public utilities afford

a certain consumer group periodic access to utility billing

envelopes for dissemination of solicitational and informa-

tional messages does not abridge, in any constitutionally

significant fashion, a public utility’s freedom of

speech. Neither the communicative nor the associational

aspect of that First Amendment guarantee is implicated by

the requirement. Appellant Pacific Gas and Electric’s

(PGandE) claims of speech infringement do not pass thresh-

old analytical hurdles.

6

The CPUC’s order does not detract from PGandE’s free-

»m to communicate with its customers through the monthly

billing envelope, whether or not material of Toward Utility

Rate Normalization (TURN) is inserted in the envelope and

regardless of the weight of TURN’s inserts. The commis-

sion’s order is neutral as to the content, subject matter, and

amount of the utility’s speech. The order merely gives rise to

the possibility that PGandE may be deprived of free postage to

distribute its message through its publication, Progress, a

maximum of four times each year; yet PGandE itself concedes

that this is not a deprivation of constitutional signifi-

cance. Moreover, under its order, the commission will play no

role in selecting, reviewing, or endorsing the content either of

PGandE’s or TURN’s speech that appears in the billing

envelope.

In addition, PGandE’s contention that the commission

indirectly and unconstitutionally will select the content of

speech by selecting the speaker rests on a premature and

ironically self-defeating assumption about the content of the

consumer-oriented materials, and on PGandE’s misin-

terpretation of the CPUC’s order. Contrary to PGandE’s

contention, the CPUC’s order does not conclude that the

content of TURN’s speech is better than that of PGandE’s

speech, or that TURN’s speech should replace PGandE’s

speech in the billing envelope. Rather, by allowing TURN’s

message to appear alongside PGandE’s message, the commis-

sion acted consistently with the First Amendment goal to

encourage the expression of a variety of views, rather than

only a single view, to aid the common search for truth.

7

The CPUC’s order does not limit PGandE’s rights to

abstain from associating with the views of another or to

refrain from disassociating itself from another’s mes-

sage. That order does not compel PGandE to contribute

financial support for the dissemination of ideological views it

finds repugnant. Nor does the order impair PGandE’s free-

dom to hold its beliefs and act in accord with its corporate

views. The commission’s order does not create a possibility

for confusion about the identity of the sponsors of the differ-

ent messages that will appear in the billing envelope, thereby

indirectly inhibiting PGandE’s freedom to speak. The unam-

biguous disclaimer that the CPUC directed TURN to place on

all its materials forecloses that risk. Nor does the commis-

sion’s order, by making a PGandE billing a vehicle for dis-

tributing TURN’s message, control or affect PGandE’s

editorial judgment with respect to the content of Pro-

gress. The order fosters, rather than discourages, the free

discussion of public affairs. PGandE’s simplistic reliance on

dictionary definitions and on merely physical concepts of

association trivializes, rather than vindicates, the commands

of the First Amendment. Those standards are not con-

travened in this case.

ARGUMENT

I. Introduction

Appellant PGandE, supported by several utilities and

others appearing amici curiae, advances an assortment of

arguments to sustain its claim that the CPUC order allowing

TURN to include materials four times a year in PGandE’s

billing envelope violates PGandE’s freedom of speech. This

8

brief does not address the multitude of points and sub-points

raised by PGandE and its supporters because this case can be

resolved more simply. Utility accommodation of state-

required consumer access to utility billing envelopes, under

the circumstances presented here, does not abridge the util-

ity’s freedom of speech in either the communicative or the

associational sense. This case can be resolved against

PGandE at the analytical threshold.

Il. The CPUC’s order does not infringe upon

PGandE’s right to speak to its customers in the

billing envelope and, therefore, does not impli-

cate First Amendment values.

PGandE relies upon the fundamentally insupportable

notion that the CPUC’s order limits its ability to speak to its

customers through its monthly billing envelope. The commis-

sion’s order does not restrict the amount, subject matter, or

content of the utility’s speech.

PGandE wrongly asserts that the amount of its speech is

limited notwithstanding that PGandE obviously remains

_wholly free to communicate with its customers through the

billing envelope each month of the year, whether or not

TURN ’s material is inserted in the envelope and regardless of

the weight of TURN’s inserts. The CPUC’s order merely

means that on those occasions when TURN’s materials,

together with Progress and the legally required billing and

other notices, weigh over one ounce, PGandE would be

required to pay for the cost of mailing Progress to its custom-

ers.

9

PGandE correctly concedes that the First Amendment

does not entitle it to disseminate its message to its customers

for free. Appellant’s Brief at 39. See U.S. Postal Service v.

Greenburgh Civic Assns., 453 U.S. 114, 127 & n. 5 (1981). Cf.

Regan v. Taxation With Representation of Wash., 461 U.S.

540, 545-46 (1983) (rejecting the proposition that First

Amendment rights are not fully realized unless party’s speech

is subsidized by the state). The possibility that PGandE

might lose its “free ride” in the billing envelope is not

constitutionally objectionable; PGandE’s ability to speak is

not otherwise limited. Therefore, PGandE has shown no

constitutionally cognizable restriction on its right to speak.

Nor does the commission’s order affect the subject matter

of PGandE’s speech. PGandE’s claim of communicational

infringement at bottom rests on a distorted reading of this

Court’s decision in Consolidated Edison v. Public Serv.

Comm'n, 447 U.S. 530 (1980). That decision does not support

an argument that PGandE is entitled to monopolize the space

in its billing envelope. In Consolidated Edison, the New York

Public Service Commission had prohibited utilities from

inserting in monthly billing envelopes materials discussing

controversial issues of public policy. The Court observed:

This Court has emphasized that the First Amend-

ment “embraces at the least the liberty to discuss

publicly and truthfully all matters of public con-

cern. .. .” [citations omitted] In the mailing that

triggered the regulation ai issue, Consolidated Edison

advocated the use of nuclear power. The Commission

has limited the means by which Consolidated Edison

mav participate m the public debate on this question

10

and other controversial issues of national interest and

importance. Thus, the Commission’s prohibition of

discussion of controversial issues strikes at the heart

of the freedom to speak.

Consolidated Edison, 447 U.S. at 534-35. In contrast to Con-

solidated Edison, the CPUC’s order here in no manner “lim-

ited the means by which [the utility] may participate in the

public debate on. . . controversiai issues of national interest

and importance.” Jd. at 535. As already noted, the order

leaves PGandE entirely free to communicate to its customers

through its billing envelope as frequently as it desires, without

regard to the subject matter or content of its mes-

sages. Unlike the New York commission’s order in Consoli-

dated Edison, therefore, the CPUC’s order does not restrict

PGandE’s freedom to speak.

Further, PGandE erroneously contends that the commis-

sion’s order strays from its “paramount obligation” to main-

tain government neutrality toward the content of protected

communications. Young v. American Mini Theatres, 427 U.S.

50, 70 (1976). Appellant’s Brief at 22. Appellant acknowl-

edges that its contention concerning the CPUC’s role in

determining the content of the communications in the billing

envelope flies in the face of the express language of the

CPUC’s order. See Appellant’s Brief at 22-23. The order

provides both that “PG&E and TURN shall each determine

the content of its own material,” and “All of TURN’s material

shall clearly identify TURN as its source and state that its

contents have been neither reviewed nor endorsed by PG&E

or this Commission.” Motion to Dismiss of Appellee CPUC

11

(M.D.) at A-38, A-39. Plainly, the CPUC will exercise no

content control over the messages in the billing envelope.

PGandE insists, however, that by granting TURN peri-

odic access to the billing envelope, the CPUC has indirectly

and unconstitutionally chosen the permissible content of the

inserts by choosing the speaker. Appellant, and the utilities

supporting appellant as amici curiae, assume that the views of

TURN will be “hostile to the utilities’ interests.” Brief of

amici curiae Pacific Northwest Bell et al. at 3. The assump-

tion is blatantly premature. It also necessarily requires the

conclusion that the utilities’ interests are unremittingly hos-

tile to those of their customers, an impression that utilities

devote enormous amounts of resources annually to dis-

pel. Further, PGandE’s argument misconstrues the commis-

sion’s goal “to change the present system to one which uses

the extra space more efficiently for the ratepayers’ benefit

[because] [i]t is reasonabie to assume that the ratepayers will

benefit more from exposure to a variety of views than they will

from only that of PG&E.” M.D. at A-22. That statement

does not, as PGandE would have it, “weigh the value of

TURN’s speech against PGandE’s speech, or . . . make [a]

. . . determination that TURN’s messages would be a more

efficient use of the envelope extra space.” Appellant’s Brief at

23. Rather, the CPUC has, without regard to the content of

TURN’s speech, which it will neither review, control, nor

endorse, acted upon the fundamental assumption underlying

the First Amendment that the airing of a variety of views,

12

rather than only one view, is the road to the eventual discov-

ery of the truth:

The First Amendment presupposes that the free-

dom to speak one’s mind is not only an aspect of

individual liberty—and thus a good unto itself—but

also is essential to the common quest for truth and the

vitality of society as a whole. Under our Constitution

“there is no such thing as a false idea. However

pernicious an opinion may seem, we depend for its

correction not on the conscience of judges and juries

but on the competition of other ideas.” Gertz v.

Robert Welch, Inc., supra, 418 US, at 339-340, 41 L Ed

2d 789, 94 S Ct 2997 (footnote omitted).

Bose Corp. v. Consumers Union of U.S., Inc., _ U.S. —_, 80

L Ed2d 502, 518 (1984). See also Consolidated Edison, 447

U.S. at 326.2

? PGandE warns that by allowing TURN access to PGandE’s billing

envelopes, the CPUC has placed itself in the position of selecting and

licensing speakers to use the billing envelope: A position rife with potential

First Amendment problems. Appellant’s Brief at 23-27. Appellant’s claim is

premature. First, the CPUC chose TURN, not from among competing

applicants for the extra space in the billing envelope, but because TURN “‘is

the only organization which has sought access to the PG&E billing enve-

lope.” M.D. at A-35. Thus, this case does not present the problem PGandE

raises. If the problems foreseen by PGandE arise in the future, the CPUC

may attempt to formulate a constitutionally neutral method for allocating

space in the billing envelope. As the commission stated:

Our action today should not be viewed as restricting access to

TURN. The adoption of this proposal in no way precludes other

proposals from being considered. Should other proposals be

brought before us, we will consider the feasibility and benefits of

each at that time. If we find that these proposals are meritorious,

we could order that extra space be made available for the new

program along with any previously authorized ones. Alternately,

we could modify today’s decision to provide for the implementation

of a checkoff program as discussed above. This is consistent with

the approach adopted in our UCAN decision.

M.D. at A-24. Finally, it seems plain that groups unsuccessfully seeking

access to the billing envelope, not PGandE, would have standing to challenge

such an order by the CPUC.

13

In sum, PGandE’s argument proceeds from a basic distor-

tion of the commission’s order. That order does not, as

appellant maintains, limit PGandE’s speech or substitute

TURN’s speech for twat of PGandE. The order merely places

TURN’s speech side by side with PGandE’s

speech. Appellant’s stance reveals the essence of the problem

here; PGandE, and the other utilities appearing as amici

curiae in support of PGandE, do not explore the core of First

Amendment values. Rather, they seek to be allowed to speak

in the public marketplace of ideas, free from the competition

of other messages. The CPUC’s narrowly drawn order, not

PGandE’s position, embodies the principles at the heart of the

First Amendment.

Ill. The CPUC’s order does not abridge PGandE’s

rights to refrain from associating with the views

of another or from disassociating itself from

another’s message.

PGandE relies on Abood v. Detroit Board of Education, 431

U.S. 209 (1977), Wooley v. Maynard, 430 U.S. 705 (1977), and

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974),

for the proposition that the CPUC’s order unconstitutionally

compels PGandE to spe « and to associate with the speech of

others. Those cases provide no support for appellant’s argu-

ment.

Abood involved the constitutionality of a Michigan state

law concerning union representation of local government

employees. Under that law, through an agency-shop arrange-

ment every employee represented by a union, whether or not a

iN a tl a

14

union member, could be required to pay the union a service fee

equal in amount to union dues. In Abood, this Court held that

the First Amendment bars a state from requiring an indi-

vidual to contribute financially to the support of an ,ueological

cause he may oppose. Abood, 431 U.S. at 234. That holding

was premised on the principle that the freedom of belief is “at

the heart of the First Amendment.” Jd. This case bears no

similarity to Abood. PGandE is not compelled in any fashion

to contribute to the support of ideological causes it finds

repugnant; the CPUC’s order expressly requires TURN to

reimburse PGandE “for all reasonable costs the company

incurs beyond its usual cost of billing that result from the

addition of TURN’s materials.”” M.D. at A-39. Moreover,

even if a corporation may properly be said to hold “beliefs,”

PGandE’s freedom of belief remains unimpaired by the

CPUC’s order.

The “association” with TURN’s views that PGandE finds

so objectionable is merely physical; at most four times each

year PGandE’s Progress may be required to share space with

TURN’s materials. That mere physical proximity is not the

compelled “association” found to violate the First Amend-

ment in Abood. There, it was the compulsion to contribute

financial support to ideological causes one opposes, thereby

preventing individual action based upon individual mind and

conscience, that rendered the Michigan law infirm. Abood,

431 U.S. at 235. PGandE thus misapplies the rationale of

Abood and thereby trivializes the First Amendment principles

announced in that decision.

15

Further, physical sharing of the envelope does not imply

PGandE’s endorsement of TURN’s views. The commission

explained:

[I]n order to protect against the possibility that one

receiving a PG&E billing envelope would assume all its

contents were generated by the utility, we will require

that all of TURN’s bill insert material clearly identify

TURN as its source and state that their contents are

not endorsed by PG&E.

M.D. at A-28. The commission’s recognition of the

efficacious use of disclaimers is supported by this Court’s

decision in Pruneyard Shopping Center v. Robins, 447 U.S. 74

(1980). In Pruneyard, this Court ruled that state constitu-

tional provisions that permit individuals to exercise free

speech and petition rights on the property of a privately

owned shopping center to which the public is invited do not

violate the owner’s right to free speech under the First and

Fourteenth Amendments. Addressing the possibility that the

views expressed by members of the public passing out peti-

tions on the owner’s property could be identified with those of

the owner, the Court stated:

[A]s far as appears here appellants can expressly

disavow any connection with the message by simply

posting signs in the area where the speakers or hand-

billers stand. Such signs, for example, could disclaim

any sponsorship of the message and could explain that

the persons are communicating their own messages by

virtue of state law.

Pruneyard, 447 U.S. at 87. Hence, contrary to PGandE’s

assertion, it is not “highly likely that the public will receive a

mistaken impression that the State’s selection of TURN to

f

SS ee

16

send its message in the billing envelope is supported by

PGandE.” Appellant’s Brief at 19. PGandE’s contention

that a disclaimer as required by the CPUC would be ineffec-

tive, id., is unfounded. This disclaimer also negates any

potential for dilution of PGandE’s message arising from the

simultaneous presence of TURN’s mailer. See Appellant’s

Brief at 13-14 n. 11.

Moreover, PGandE’s argument that the disclaimer itself

would be unconstitutional is meritless. That argument rests

on PGandE’s mistaken representation that the disclaimer

“would force PGandE to speak even though it prefers to

remain silent,” (Appellant’s Brief at 19), echoing Justice

Powell’s concerns expressed in Pruneyard, 447 U.S. at 99

(Powell, J., concurring). The CPUC’s order to include a

disclaimer was, however, directed at TURN, not at PGandE

(M.D. at A-28, A-39); PGandE is not required to speak at

all. In any event, appellant’s misleadingly selective quotation

of Justice Powell omits the premise for his concern: The

likelihood that listeners will identify the views of the party

granted access with the views of the one forced to grant

access. See Pruneyard, 447 U.S. at 99 (Powell, J., concur-

ring). As already explained, TURN’s mandated disclaimer

removes that potential for confusion. Further, Pruneyard’s

sanction of a disclaimer by the owner of the shopping center to

avoid confusion resolves the First Amendment issue against

PGandE.

Justice Powell also cautioned that those granted access

may “express views that are so objectionable as to require a

response even when listeners will not mistake their

7%

| eng

17

source,” Pruneyard, 447 U.S. at 101 (Powell, J., concurring),

thereby burdening ‘‘the right to control one’s own

speech.” Jd. at 100. PGandE does not allege, however, that

TURN will express views so repugnant to its own as to require

an answer even when its customers will not confuse their

source. Consequently, here as in Pruneyard the facts do not

raise the issue that troubled Justice Powell.

Nor is Wooley v. Maynard helpful. There, the Court ruled

that the State of New Hampshire could not constitutionally

require an individual to display its state motto, “Live Free or

Die,” on an automobile license plate. The law at issue there

was abhorrent to the First Amendment because it

force[d] an individual, as part of his daily life. . . to be

an instrument for fostering public adherence to an

ideological point of view he finds unacceptable. In

doing so, the state “invades the sphere of intellect and

spirit which it is the purpose of the First Amendment

to our Constitution to reserve from all official con-

trol.”

Wooley v. Maynard, 430 U.S. at 715, quoting from Board of

Education v. Barnette, 319 U.S. 624, 642 (1943). Again, and

contrary to PGandE’s contention, the CPUC’s order does not

force PGandE to advocate or foster public adherence to a

point of view it finds objectionable, and does not invade

PGandE’s “sphere of intellect and spirit,” Wooley v. Maynard,

430 U.S. at 715. PGandE remains at liberty to hold and

advocate whatever views it chooses, and to disassociate itself,

financially and intellectually, from views it finds distasteful.

Finally, nothing in Miami Herald Publishing Co. v. Tor-

nillo aids appellant. This Court’s decision there invalidated

on First Amendment free press grounds a Florida law that

18

required newspapers to publish the replies of political candi-

dates whom they had criticized. That law violated the First

Amendment because it intruded into the “exercise of editorial

control and judgment.” Tornillo, 418 U.S. at 258. In so doing,

the statute threatened to stifle editorial comment by encour-

aging newspaper editors to steer the safe course and avoid

controversy. That threat struck at a major purpose of the

First Amendment: To “protect the free discussion of govern-

mental affairs.” Id. at 257, quoting from Mills v. Alabama, 384

U.S. 214, 218 (1966).

PGandE’s reliance on Tornillo rests on its simplistic,

mechanistic application of a dictionary definition of the term

“publish.” See Appellant’s Brief at 16 n. 13. Appellant thus

misses the meaning of Tornillo. That case did not involve the

newspaper as “a passive receptacle or conduit” for the dis-

semination of written matter, Tornillo, 418 U.S. at 258, as

PGandE is under the CPUC’s order. Rather, this Court

stressed:

The choice of material to go into a newspaper, and the

decisions made as to limitations on the size and

content of the paper, and treatment of public issues

and public officials—whether fair or unfair

—constitute the exercise of editorial control and judg-

ment.

Id. The commission’s challenged decision here does not pur-

port to control or affect PGandE’s “editorial control and

judgment” over the content of Progress. Nor, plainly, will the

inclusion of TURN’s material in the utility’s billing envelopes

frighten PGandE into silence, thereby limiting debate on

19

issues of public importance; PGandE does not contend other-

wise. Instead, the commission’s order will foster the “First

Amendment’s role ‘in affording the public access to discus-

sion, debate, and the dissemination of information and

ideas.’ ” Consolidated Edison, 447 U.S. at 541, quoting from

First National Bank of Boston v. Bellotti, 435 U.S. 765, 783

(1978).

CONCLUSION

Neither Oregon’s voter-initiated Citizens’ Utility Board

legislation, nor CPUC’s order requiring PGandE to allow a

consumer group limited access to its billing envelopes,

abridges a public utility's freedom of speech. The order

appealed from should be affirmed.

Respectfully submitted,

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Deputy Attorney General

JAMES E. MOUNTAIN, JR.

Solicitor General

RICHARD D. WASSERMAN

Assistant Attorney General

Counsel for Amicus Curiae

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