Consolidated Edison Co. v. Public Service Commission

Main, J. P.

(dissenting). We respectfully dissent. At the outset, we agree with the observation of Justice Blackmun and recognize that the cost allocation issue presently confronting us is difficult (Consolidated Edison Co. v Public Serv. Commn., 447 US 530, 554 [Blackmun, J., dissenting]). After careful consideration of this closely contested issue involving sharply competing values, we are of the view that the order of the Public Service Commission (PSC) unconstitutionally infringes upon petitioners’ freedom of speech.

We recognize that this case does not involve the proportioning of costs such that the cost attributable to the placing of the controversial bill inserts in the envelopes and the mailing of the controversial bill inserts is charged to shareholders instead of ratepayers. Petitioners acknowledge that they (or more precisely, their shareholders) are responsible for those costs which would not be incurred but for the inclusion of the controversial bill insert. This case does involve a more subtle and indirect subsidization, one which arises from petitioners’ ability to utilize a preexisting distribution system at no additional cost to *78ratepayers and thereby to avoid expenses which would be incurred if dissemination was accomplished by other means. Such subtlety and indirectness distinguish this case from such cases as Abood v Detroit Bd. of Educ. (431 US 209) and Rochester Gas & Elec. Corp. v Public Serv. Commn. (51 NY2d 823, appeal dismissed 450 US 961), which involved impermissible attempts by entities to require direct financial support from members and ratepayers for political activities and advertising, respectively. In the absence of direct financial support in this case, we do not find the holdings of these cases persuasive.

The compelling State interest relied on by the PSC to support the constitutionality of its order is the prevention of subsidization of petitioners’ views on controversial issues of public policy by those who may not support those views. We have already described, however, that the subsidization in this case is indirect and slight — amounting only to petitioners’ taking advantage of a distribution mechanism already in place without causing any increase in the amount paid by ratepayers and without impermissibly invading the ratepayers’ right to privacy (see Consolidated Edison Co. v Public Serv. Commn., 447 US 530, 541-542, supra; Cohen v California, 402 US 15). Considering the fundamental nature of petitioners’ freedom of speech rights, the minimal, indirect subsidization which results from petitioners’ exercise of those rights, and the potential for unduly restricting petitioners’ exercise of those rights, we conclude that the justification offered by the PSC to support its cost allocation order is insufficient. Petitioners’ 1st Amendment rights, and corresponding free speech rights under the State Constitution, are sufficiently strong and fundamental to withstand the limited and indirect subsidization present in this case.

Accordingly, we would conclude that the PSC’s order violates petitioners’ freedom of speech and that the judgment appealed from should be reversed.

Mikoll and Yesawich, Jr., JJ., concur with Weiss, J.; Main, J. P., and Harvey, J., dissent and vote to reverse in an opinion by Main, J. P.

Judgment affirmed, with costs.