Central Hudson Gas and Electric Corp. vs. Public Service Commission, 447 U.S. 557

Central Hudson Gas and Electric Corp. vs. Public Service Commission, 447 U.S. 557

Keywords:  Four part analysis for commercial speeches, Electric company

Summary:  Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), was an important case decided by the United States Supreme Court that laid out a four-part test for determining when restrictions on commercial speech violated the First Amendment of the United States Constitution. Central Hudson Gas & Electric Corp. had challenged a Public Service Commission regulation that prohibited promotional advertising by electric utilities. Justice Brennan, Justice Blackmun, and Justice Stevens wrote separate concurring opinions, and the latter two were both joined by Justice Brennan. Justice Rehnquist dissented.

Brief Fact Summary. In the winter of 1973-74 there existed an electricity shortage in the State of New York. Accordingly the Appellee, the Public Service Commission (Appellee), imposed a ban on all advertising that promotes the use of electricity. By 1976 the electricity shortage subsided, causing the Appellee to determine whether or not to continue the ban. Upon further inquiry, the Appellee decided to continue the ban, causing the Appellant, Central Hudson Gas and Electric Corp. (Appellant), to file suit claiming that the regulation of the Appellee was infringing on their First and Fourteenth Amendment constitutional rights involving commercial speech.

Synopsis of Rule of Law. This case established a four-part analysis for commercial speech cases. (1) Whether the expression is protected by the First Amendment of the United States Constitution (Constitution). To be protected, it must concern lawful activity and not be misleading. (2) Whether the asserted governmental interest is substantial. If both part one and part two are satisfied then (3) A court must determine whether the regulation directly advances the governmental interest asserted. (4)Whether it is not more extensive than is necessary to serve that interest.

Justice Powell wrote the opinion of the court.

Facts:  In December 1973, the Appellee ordered electric utilities in New York State to cease all advertising that promotes the use of electricity. The Appellee based this regulation on a finding that the interconnected utility system in New York State does not have sufficient fuel stocks to continue furnishing all customer demands for the 1973-74 winter. In 1976, the fuel shortage ended, causing the Appellee to request public comment on its proposal to continue the ban on advertising. The Appellant opposes the ban on First Amendment constitutional grounds and filed this suit after the Appellee decided to continue the ban. The 1976 order from the Appellee was that information advertising, used to encourage shifts of consumption of electricity from peak use times to periods of low electricity demand would be allowed because it does not increase aggregate consumption, but would promote the leveling of demand throughout the day. The Appellee also offered to review specific proposals by companies to determine if their advertisement meets this criterion. The Appellant challenged this order in state court, arguing that the Appellee restrained commercial speech in violation of the First and Fourteenth Amendments of the Constitution. The Appellee’s order was upheld in the trial court, by the appellate level and by the New York Court of Appeals.

Issue:  Whether a regulation of the Appellee of the State of New York violates the First and Fourteenth Amendments of the Constitution because it completely bans promotional advertising by an electrical utility?

Ratio:   Yes. The Appellee’s ban is unconstitutional even though the United States Constitution (Constitution) accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by the regulation. There is a four-part analysis for commercial speech cases. (1) Whether the expression is protected by the First Amendment of the Constitution. To determine if it is protected, the speech must concern lawful activity and not be misleading. (2) Whether the asserted governmental interest is substantial. If both parts one and part two are satisfied then (3) A court must determine whether the regulation directly advances the governmental interest asserted. (4)Whether it is not more extensive than is necessary to serve that interest.

Under this four-part analysis the Supreme Court of the United States (Supreme Court) found that the advertising is commercial speech protected by the First Amendment of the Constitution. The Supreme Court found that the state interest in suppressing the use of energy is substantial. The Supreme Court also found a direct link between the state interest in conservation and the Appellee’s order as there is a connection between advertising and demand for electricity. This lead the Supreme Court to consider whether the complete suppression is more extensive than what is necessary. The Supreme Court in this case determined that the Apellee has not shown that it could not protect its interest in energy conservation through a less restrictive means. For example, providing information in its advertisement about the relative efficiency and expense of its offered service. Therefore since there is a less restrictive means available, the restriction by the Appellant is an unconstitutional restriction of free speech.

Ruling:  

For the foregoing reasons, I would affirm the judgment of the New York Court of Appeals.

Dissent. The Supreme Court’s decision fails to give due deference to the subordinate position of commercial speech. The dissenting judge feels the court has gone back to the days of Lochner, feeling that it can strike down regulations of a State through its own notions of what is the most appropriate means of regulation.

Concurrence.

Doubts whether suppression of information concerning the availability and price of a legally offered product is ever a permissible way for the State to dampen demand for or use of the product. But, agrees with the majority that even though commercial speech is involved, it is protected by the First Amendment of the Constitution. In fact, the Appellee’s ban is a covert attempt by the State to manipulate the choices of its citizens, not by persuasion or direct regulation, but by depriving the public of the information needed to make a free choices.

Another concurring judge argued that this is not a commercial speech case. Therefore, they see no need to decide whether the four-part analysis, adequately protects commercial speech – as properly defined – in the face of a blanket ban of speech of the sort involved in this case.

NOTE: his case is most significant because it clearly provides a four-part test to be used in cases involving commercial speech. The Supreme Court in this case also provides a clear use of this test through its analysis. This case builds on the definition of commercial speech provided in Virginia State Board of Pharmacy. That case defined commercial speech as expression related solely to the economic interests of the speaker and its audience, which is to be used to determine whether or not part one of the test in this case is satisfied. Part two of the test, looks at whether the State’s interest is substantial and is similar to all other First Amendment analysis, except as stated in this case and Virginia State Board of Pharmacy, the state possess an elevated standard of interest in regulating commercial speech, as does part three determining whether the regulation furthers the interest. This leads to part four of the test, where it seems most commercial speech cases will be decided. In part four once again, as is with most First Amendment expression cases, e.g. obscenity cases, the Supreme Court will on a case-by-case basis determine if there was a less restrictive means of regulation. If a less restrictive means is available to achieve the same goal, the answer will always necessarily strike down the regulation as unconstitutional.

Dennis vs. United States, 341 U.S. 494

Dennis vs. United States, 341 U.S. 494

Nature: CERTIORARI TO THE UNITED STATES COURT OF APPEALS

Summary: Dennis v. United States, 341 U.S. 494 (1951), was a United States Supreme Court case relating to Eugene Dennis, General Secretary of the Communist Party USA. The Court ruled that Dennis did not have the right under the First Amendment to the United States Constitution to exercise free speech, publication and assembly, if the exercise involved the creation of a plot to overthrow the government.

Brief Fact Summary. The Petitioners, Dennis and others (Petitioners) were convicted for (1) willfully and knowingly conspiring to organize as the Communist Party of the United States, a group whose members advocated the overthrow of the United States government by force and (2) willfully and knowingly advocating and teaching the duty to do the same. The constitutionality of the statute under which the Petitioners were convicted was challenged.

Synopsis of Rule of Law. For an impediment on free expression to be permissible, the gravity of the evil, discounted by its improbability of coming about, must sufficiently outweigh the invasion of free speech necessary to avoid the danger.

MR. CHIEF JUSTICE VINSON announced the judgment of the Court and an opinion in which MR. JUSTICE REED, MR. JUSTICE BURTON and MR. JUSTICE MINTON join.

Facts: The Smith Act (the Act) made it a criminal offense for a person to knowingly or willfully advocate the overthrowing of any government in the United States by force or to attempt to commit or conspire to commit the crime the same. The Petitioners were brought up on charges under the Act for allegedly (1) willfully and knowingly conspiring to organize as the Communist Party of the United States, a group whose members advocated the overthrow of the United States government by force and (2) willfully and knowingly advocating and teaching the duty to do the same. It was clear from the record that the leaders of the Communist Party intended to initiate a revolution when the opportunity came. The Trial Court found the Petitioners guilty. The Court of Appeals affirmed. The constitutionality of the statute under which the Petitioners were convicted was challenged.

Issue: Whether the gravity of the "evil", discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.

Ratio: We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.

Likewise, we are in accord with the court below, which affirmed the trial court's finding that the requisite danger existed. The mere fact that, from the period 1945 to 1948, petitioners' activities did not result in an attempt to overthrow the Government by force and violence is, of course, no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger. If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added.

We must apply the “clear and present danger” test. Accordingly, we note that the overthrow of the Government by force is certainly a substantial enough interest for the Government to limit speech. Obviously, “clear and present danger” does not mean the government may not act until the Putsch has been plotted and on is the verge of being executed.

On the facts, the court was convinced that the requisite danger to act existed here: (1) the formation by the Petitioners of a highly organized conspiracy with rigidly disciplined members subject to call when the leaders (the Petitioners) felt it was time for action; (2) the inflammable nature of world conditions; (3) similar uprisings in other countries; and (4) the touch and go nature of our relations with other countries with whom the Petitioners were ideologically aligned. Thus, the convictions of the Petitioners were justified.

Ruling: The convictions are affirmed.

NOTES: From Encyclopedia Britannica

Dennis v. United States, case in which the U.S. Supreme Court on June 4, 1951, upheld the constitutionality of the Smith Act (1940), which made it a criminal offense to advocate the violent overthrow of the government or to organize or be a member of any group or society devoted to such advocacy.

The case originated in 1948 when Eugene Dennis, general secretary of the American Communist Party, along with several other high-ranking communists, was arrested and convicted of having violated the Smith Act. The conviction was upheld by lower courts, despite the fact that no evidence existed that Dennis and his colleagues had encouraged any of their followers to commit specific violent acts, and was appealed to the Supreme Court, which agreed to hear the case.

Against the backdrop of the case was a growing fear in the United States during the Cold War of a communist takeover of the country. Oral arguments were held on Dec. 1, 1950, and on the following June 4 the Supreme Court issued a 6–2 ruling upholding the convictions, in essence finding that it was constitutional to restrict the guarantee of freedom of speech found in the U.S. Constitution’s First Amendment when an individual’s speech was so grave that it represented a vital threat to the security of the country. The court’s plurality opinion was written by Fred M. Vinson, joined by Harold Burton, Sherman Minton, and Stanley Reed, who argued: “Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent.” The ruling further maintained that government need not wait to prohibit speech “until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.” Two other justices, Felix Frankfurter and Robert H. Jackson, voted with the majority but wrote special concurrences that deviated somewhat from the ruling’s overall logic. Frankfurter, in particular, argued that Congress needed to balance free speech protections against the threat of that speech. The court’s opinion ran somewhat contrary to the clear and present danger rule of Oliver Wendell Holmes, Jr., in Schenck v. United States in 1919, which required that immediate violence or danger be present for speech to be lawfully limited.

Dissenting from the majority were Hugo L. Black, who had developed a literal interpretation of the Bill of Rights and an absolutist position on First Amendment rights, and William O. Douglas. Black’s eloquent opinion both captured the tenor of the times and was a strong defense of freedom of speech:

So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere ‘reasonableness.’ Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those ‘safe’ or orthodox views which rarely need its protection.…Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that, in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.

In Yates v. United States (1957), the court later amended its ruling to make parts of the Smith Act unenforceable, and though the law remained on the books, no prosecutions took place under it thereafter.

COHEN VS. CALIFORNIA, 493 US 15 (Freedom of Speech.)

COHEN VS. CALIFORNIA, 493 US 15 (Freedom of Speech.)

Nature: APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA,

Keywords: Freedom of Speech

Summary: Cohen v. California, 403 U.S. 15 (1971), was a United States Supreme Court case dealing with freedom of speech. The Court overturned a man's conviction for the crime of disturbing the peace for wearing a jacket in the public corridors of a courthouse that displayed the phrase, "Fuck the Draft".

Brief Fact Summary. The Defendant, Cohen’s (Defendant) conviction, for violating a California law by wearing a jacket that had “f— the draft” on it was reversed by the Supreme Court of the United States (Supreme Court) which held such speech was protected.

Synopsis of Rule of Law. Emotive speech that is used to get attention is protected by the constitution.

Facts: A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "FUCK THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail.

Issue: WON California's statute, prohibiting the display of offensive messages such as "Fuck the Draft," violate freedom of expression as protected by the First Amendment?

Ratio: Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).

=*=

The Court, by a vote of 5-4, per Justice John Marshall Harlan II, overturned the appellate court's ruling. First, Justice Harlan began by emphasizing that this case concerned "speech", and not "conduct", as was at issue in United States v. O'Brien. Harlan then stated that any attempt by California to abridge the content of Cohen's speech would be no doubt unconstitutional except in a few instances, like, for example, if California was regulating the time, place, or manner of Cohen's speech independent from the content of the speech.

Second, Harlan also expressed the concern of the Court that section 415 was vague and did not put citizens on notice as to what behavior was unlawful. Indeed, the words "offensive conduct" alone cannot "be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created."

Third, the mere use of an untoward four-letter word did not place the speech into a category of speech that has traditionally been subject to greater regulations by the government, as in Roth v. United States, for example. Similarly, Harlan and the Court refused to categorize the speech at issue as a "fighting word" under Chaplinsky v. New Hampshire, because no "individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult." Finally, the Court was unwilling to give credence to the idea that the government could suppress the type of speech at issue here in order to protect the public at large.

Having discarded what was not at issue in this case, Harlan stated that the issue was "whether California can excise, as "offensive conduct", one particular scurrilous epithet from the public discourse, either upon the theory...that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary."

The states could not. As to the first theory, the Court stated that it was not presented with any evidence suggesting that the speech was likely to cause an incitement to violence. As to the second theory, the Court stated that while it was a closer call, the rationale was not sufficient.

Specifically, Harlan, citing Justice Brandeis' opinion in Whitney v. California, emphasized that the First Amendment operates to protect the inviolability of the marketplace of ideas imagined by the Founding Fathers. Allowing California to suppress the speech at issue in this case would be destructive to that marketplace.

"To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance", Justice Harlan wrote. "These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength."[2]

"[A]bsent a more particularized and compelling reason for its actions", Harlan continued, "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense."[3] In his opinion Justice Harlan famously wrote "one man's vulgarity is another's lyric."[4]

Thus, Harlan’s arguments can be constructed in three major points: First, states (California) cannot censor their citizens in order to make a “civil” society. Second, knowing where to draw the line between harmless heightened emotion and vulgarity can be difficult. Third, people bring passion to politics and vulgarity is simply a side effect of a free exchange of ideas—no matter how radical they may be.

Ruling: It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be REVERSED.

NOTES:

1.The statute provides in full:

Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any unincorporated town, or upon the public highways in such unincorporated town, run any horse race, either for a wager or for amusement, or fire any gun or pistol in such unincorporated town, or use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by any Court of competent jurisdiction shall be punished by fine not exceeding two hundred dollars, or by imprisonment in the County Jail for not more than ninety days, or by both fine and imprisonment, or either, at the discretion of the Court.

2.

The suggestion has been made that, in light of the supervening opinion of the California Supreme Court in In re Bushman, 1 Cal.3d 767, 463 P.2d 727 (1970), it is "not at all certain that the California Court of Appeal's construction of § 415 is now the authoritative California construction." Post at 27 (BLACKMUN, J., dissenting). In the course of the Bushman opinion, Chief Justice Traynor stated:

[One] may . . . be guilty of disturbing the peace through "offensive" conduct [within the meaning of § 415] if, by his actions, he willfully and maliciously incites others to violence or engages in conduct likely to incite others to violence. (People v. Cohen (1969) 1 Cal.App.3d 94, 101, [81 Cal.Rptr. 503].)

1 Cal.3d at 773, 463 P.2d at 730.

We perceive no difference of substance between the Bushman construction and that of the Court of Appeal, particularly in light of the Bushman court's approving citation of Cohen.

3.

It is illuminating to note what transpired when Cohen entered a courtroom in the building. He removed his jacket and stood with it folded over his arm. Meanwhile, a policeman sent the presiding judge a note suggesting that Cohen be held in contempt of court. The judge declined to do so, and Cohen was arrested by the officer only after he emerged from the courtroom. App. 119.

4.

In fact, other portions of the same statute do make some such distinctions. For example, the statute also prohibits disturbing "the peace or quiet . . . by loud or unusual noise" and using "vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner." See n. 1, supra. This second-quoted provision in particular serves to put the actor on much fairer notice as to what is prohibited. It also buttresses our view that the "offensive conduct" portion, as construed and applied in this case, cannot legitimately be justified in this Court as designed or intended to make fine distinctions between differently situated recipients.

5.

The amicus urges, with some force, that this issue is not properly before us, since the statute, as construed, punishes only conduct that might cause others to react violently. However, because the opinion below appears to erect a virtually irrebuttable presumption that use of this word will produce such results, the statute, as thus construed, appears to impose, in effect, a flat ban on the public utterance of this word. With the case in this posture, it does not seem inappropriate to inquire whether any other rationale might properly support this result. While we think it clear, for the reasons expressed above, that no statute which merely proscribes "offensive conduct" and has been construed as broadly as this one was below can subsequently be justified in this Court as discriminating between conduct that occurs in different places or that offends only certain persons, it is not so unreasonable to seek to justify its full broad sweep on an alternate rationale such as this. Because it is not so patently clear that acceptance of the justification presently under consideration would render the statute overbroad or unconstitutionally vague, and be cause the answer to appellee's argument seems quite clear, we do not pass on the contention that this claim is not presented on this record.