Earl Warren: Number 8, Charles Townsend, Petitioner, versus Frank G. Sain, Sheriff of Cook County. Mr. Leighton.
George N. Leighton: Mr. Chief Justice, may it please the Court. This is a reargument of the case in which certiorari was granted to review a judgment of the Circuit Court of Appeals for the Seventh Circuit affirming dismissal of petitioner's application for a writ of habeas corpus filed in the District Court after exhaustion of all the remedies under Illinois law. To set this case in proper perspective, I would first take the facts which give rise to the substantive federal question. Then I will briefly state the procedural history of this case including the federal questions presented for Your Honor's decision. And finally, I will present the argument which I believe will support petitioner's contention that his conviction in the Illinois criminal court violated the Fourteenth Amendment to the Federal Constitution. In stating the facts Mr. Chief Justice, I will only refer to the undisputed facts in this record so that it may be clear that I will not rely upon any fact about which if there's any dispute between the parties. On January 1, 1954 at about 1:45 a.m., Charles Townsend was arrested in the City of Chicago by Chicago police officers. At that time, Townsend was 19 years of age and since he was 15, he had been a narcotic addict and just about an hour and a half prior to this arrest, he had taken a large injection of heroin. These facts were all known by the police officers. He was taken to the second district police station in the City of Chicago, questioned a short time about the murder of a man named Jack Boone who had been found dead on December 18, 1953 in the City of Chicago, not very far from where Townsend was arrested. About five o'clock that morning, he was transferred to another police station where he remained without being interrogated by anyone until approximately 8:30, the evening of January 1, 1954. He was then brought back to the same police station where he first been taken and interrogation resumed of Townsend by the same police officers who in the meantime had gone off on their breaks. Soon after he was brought back to the second district, there was what we called in Chicago police practice, a show up for the purpose of enabling a man named Gus Anagnost to identify Townsend as the man who had attacked him with a brick sometime before. Gus Anagnost did not identify Townsend as the assailant. In fact, he picked out another man in this show. Soon after that episode, the police officers attempted to continue the interrogation of Townsend and they discovered that Townsend was then in the throes of the withdrawal symptoms of the drug he had injected the early morning hours of that day.
Potter Stewart: This was now how long after his arrest?
George N. Leighton: Approximately 14 hours, Your Honor. Now, at that point, the Assistant State's Attorney who took the confession here involved had arrived at the police station. He saw Townsend and he himself suggested that a doctor be called and as he said to his superiors to determine the capabilities of Townsend to withstand interrogation. A doctor employed by the police department was called and he came to the police station arriving there about 9:45 p.m. He immediately diagnosed Townsend's condition as a narcotic addict in the withdrawal symptoms and he then prepared a solution consisting of phenobarbital, a sterile content of the tool we had and what he said later was 1/230-grain of hyoscine. And that when he attempted to inject this into Townsend there was some quarrel between Townsend and the doctor as to where this injection was to be made. Now, it is very clear in this record, if Your Honors please, that none of this was of Townsend's choosing. The closest thing the record shows is that Townsend complained of being ill, the rest of it was entirely the determination of the police around them. And in this record, it is also important to remember that at the time that this doctor was called, witnesses for the prosecution all testified that Townsend had said that he did not want to talk about this case at all. The police officer who seemed to have been the principal officer so testified Mr. Janega who took the confession, emphatically explained that when he saw Townsend, Townsend indicated an unwillingness to talk about the case at all because of his inability to answer any question.
Tom C. Clark: Did he speak with the boy?
George N. Leighton: He had not, Your Honor. Now, there is in this record, one little place in this record, Mr. Justice Clark in which one police officer, not the principal police officer, one police officer inferred from an answer to a question that Townsend had said something that seems to have been incriminatory sometime prior to this. But no way it is attached to this statement in view of the petitioner. But he had not made any statement, he had not confessed to be at the crime.
Byron R. White: But, he had been questioned?
George N. Leighton: He had been questioned, Mr. Justice White. He had been questioned, he had denied. That's very clear in the record, Your Honor, very clear.
Arthur J. Goldberg: Mr. Leighton, didn't -- didn't Townsend say that he wants to talk to a doctor.
George N. Leighton: He said he wanted to see a doctor because he was ill.
Arthur J. Goldberg: Yes.
George N. Leighton: Yes.
Arthur J. Goldberg: He never said that he asked him.
George N. Leighton: That's right. Now, there was a quarrel Mr. Justice Goldberg between Townsend's testimony here and the doc -- and the police officer whether the idea of calling the doctor was entirely the police off -- there is, but we don't rely upon that. There is a general consent that he asked to see a doctor, the doctor was called. But the point we make is that the doctor was not of his choosing, it was a police doctor employed by the City of Chicago who came there. The medicine was not of his choice.In fact, the record shows very clear that when the time came to make the injection, he resisted the injection, the doctor wanted to put it here, he asked them to put it there, but nonetheless the doctor said, “I'll do it, I know how to do this,” and he injected the drug. Now, it is clear in this record that a miraculous result developed as a result of this injection. This man who had told that Mr. Janega that he didn't want to talk, who had told the police officer that he couldn't speak, the same man whom the police officer described that he was bent so many times, and with pain that he couldn't count how many times he kept on bending over complaining, the same man no soon as the injection was completed, the doctor walked out one -- one door, in the same room, he was taken into the adjoining room immediately and there according to everyone involved, every single witness of the prosecution, a completely changed individual was there willing to answer every question asked to them. Not only that he did give one confession on the record now before Your Honors but he gave five. He gave one that he robbed Gus Anagnost, the man whom had said that Townsend did not rob him. He gave a confession that he had murdered a man named Thompson, a homicide concerning which the police had to admit they had no evidence and even Townsend according to Mr. Janega and according to the police officers had no independent recollection of the episode leading to the death of Thompson. He also confessed to the murder of a man named Thomas who told his sister that when she came to the hospital, “I had just had an accident, it was just one of those things.” And concerning whom the arresting officer or the investing officer complained to the coroner that when he came in response to a call he asked them, “Why did you bothered to call me?” There's nothing here indicating a robbery and any of that sort. He confessed about the murder of Thomas. He also confessed the robbery of a man named Martin and then finally confessed that he robbed -- to the murder of a man named Boone. He also confessed the robbery and murder of a man named Stinson and according to Mr. Janega's report to his superiors, this was such a billion piece of police work. He thought these police officers should have been commended because he pointed out to him the cause of the investigation and in connection with this interrogation they found Stinson's shoes, his wristwatch and several other personal items all in and about Townsend or connected to him. The jury heard all of that, if Your Honors please, and found Townsend not guilty and discharged him. Now, in this case which was the second of the series of these indictments arising out of these confessions, he was tried and sentenced to death. A review was had in the Supreme Court of Illinois in which I represented Townsend as the Court-appointed lawyer. The Supreme Court of Illinois affirmed Townsend's conviction and the use of this confession on the ground that the Supreme Court said that the medication given to Townsend by this doctor was a proper medication if not be in shown otherwise. And that since it was and the thrust of the Supreme Court of Illinois opinion is that since it was not an improper medication, the Supreme Court said that the fact that he also had regurgitated a confession that was use to take his life did not deny due process, and I'll come back to this point when I get to the argument. We applied for certiorari before Your Honors and with Mr. Justice Douglas' believing the writ should have been issued, then this Court denied certiorari. Then we went back before the criminal court in Chicago and filed under Illinois law a post-conviction petition alleging that in the course of the review, counsel on appeal had learned that hyoscine which was the only designation but for one other place in the record used in describing this drug to the Court in jury was in fact a drug known scopolamine or in the science work in crime detection also known as the truth serum and that this fact crucial as it was and informative as it was had not been told to the judge or jury that had passed upon the admissibility of the confession and that had used the confession to impose a death sentence against this petitioner. That petition was dismissed. We took another review in the Supreme Court of Illinois and the Court in a memorandum unreported order upheld the dismissal, Your Honors denied certiorari. A few days before the execution of Townsend, we filed a petition for habeas corpus in the United States District Court and --
Potter Stewart: In the -- going back just a moment to the post-conviction of state proceedings as a --
George N. Leighton: Yes sir.
Potter Stewart: -- what you said the -- it was dismissed. Was there a hearing of any kind?
George N. Leighton: Well, there was a hearing before Judge Butler who had originally granted -- who had -- who has heard the case. Judge Butler on motion of the State's attorney dismissed the petition. There was a hearing in the sense that we presented the petition and supported by affidavits.We were not allowed to introduce any evidence. But on motion to dismiss, it was dismissed on the theory that the review on writ of error under several Illinois cases disposed of old questions. They apply a very broad res judicata doctrine in post-conviction procedures in Illinois and the Supreme Court upheld the dismissal.
Potter Stewart: Without opinion?
George N. Leighton: Without opinion, just a memorandum only, Your Honor.
Potter Stewart: Alright, thank you.
Tom C. Clark: Were there affidavits that controverted the (Inaudible) or it was a legal argument in --
George N. Leighton: It was just legal argument with sufficiency. The affidavits were not controverted. There was no counter-affidavit filed. Now, before Judge Igoe in the United States District Court, we applied for certiorari reviewing all these facts which I just stated to Your Honors. In addition to that, by this time I had learned about these five confessions prior to the time of the affirmance in the Supreme Court of Illinois. But by this time I then added paragraph 18 to which I'll make further reference in the course of this argument. Judge Igoe dismissed the petition for habeas corpus on motion of the respondents. And we took an appeal to the Court of Appeals for the Seventh Circuit. The Seventh Circuit dismissed the appeal. Now, we asked for certiorari in this Court and Your Honors vacated the order of the Seventh Circuit and directed that the matter be heard pursuant to the doctrine of Jennings versus Ragan. Of course, that went back before the District Judge and this time respondents obtained the three volumes of the trial in the Criminal Court of Cook County plus the one volume of the post-conviction proceeding and that Judge Igoe proceeded then to the request of the petitioner, a brief and similarly from the respondents. Briefs were filed and one of the prayers of the brief and one of the contentions made in the brief for the petitioner before Judge Igoe was that we were entitled to a full plenary hearing to determine whether or not it was known at the time of the trial that this drug was the ‘truth serum,' so referred scopolamine, and also whether or not contrary to the opinion of the Supreme Court of Illinois which we then argued was the use of an impermissible stand to determine due process whether or not a full plenary hearing would not reveal the fact that this petitioner was denied due process. Judge Igoe entered an order after hearing of June 12, 1959, an order that was dated June 24, again dismissing the petition for habeas corpus. We then appeal to the Court of Appeals for the Seventh Circuit. The Seventh Circuit affirmed holding that in a habeas corpus application a federal judge is limited to the undisputed portions of the record of the trial court and holding further that it was a burden upon the petitioner to prove that he'd been denied due process and the Court said that this burden, the petitioner had not carry. This despite the fact, the record is clear that in the District Court we had asked for an opportunity to prove the allegations of the petition and that opportunity had been denied to us. And on the substantive question, the Court said that -- the Court of Appeals said that there was no denial of due process. Now, this judgment of the Court of Appeals, if Your Honors please, presents two groups of questions, one procedural, another substantive. The procedural question presented is whether it is as the Seventh Circuit held that in an application for writ of habeas of corpus, a District Court is limited to the undisputed portions of the record of the trial court and the second procedural question is whether error, prior judicial error was not committed by the Court of Appeals in affirming on the ground which plainly was contradicted by the record, namely to hold that the petitioner had not carried a burden when the course was dismissed on motion. And the opportunity to carry the burden had been denied to the petitioner. And finally, the substantive federal question is whether the Fourteenth Amendment is violated by the admission in evidence of a confession taken from a defendant while under the influence of a drug injected by a police doctor. Now, dealing with the procedural questions, which I suggest most respectfully, if Your Honors please, are easy. In Rogers versus Richmond, the Court of Appeals for the Second Circuit reversed an order in a habeas corpus matter and an application for certiorari is made before Your Honors. And Your Honors construed the judgment of the Court of Appeals for the Seventh Circuit, as meaning that while the District Court in an application for habeas corpus may accept the determinations in the state court, may accept. But he is not bounded by them. He may in his discretion and judgment having examined those records and determined whether or not there is a vital flaw to use the words from Brown versus Allen, he may accept those determinations as one judge may always accept determinations of another judge fully supported by evidence and consistent with law. But Your Honor said that you read the opinion of the Second Circuit as not making a binding ruling upon the federal judge. And going back to what Mr. Justice Frankfurter said in Daniels versus Allen, the Congress of the United States entrusted to the federal judges, district judges, the duty to determine whether in a state court proceeding resulting in deprivation of liberty or life, whether the Federal Constitution had been fairly and properly determined and we had argued in the District Court that the thrust of the application for habeas corpus was that in the state courts, the federal questions which the petitioner had raised had not been fairly determined. And thus we say, that when the Court of Appeals for the Seventh Circuit held that Judge Igoe was limited to the undisputed portions of the record that -- that judgment is in conflict with the Second Circuit opinion in Rogers versus Richmond as Your Honors construed that opinion. Because it isn't true and Your Honors have never held that district judges are limited to the undisputed portions of the state record. But the facts were true then, habeas corpus wouldn't mean anything to a federal -- to a prisoner from a state court. It wouldn't have any meaning because all that -- all that the federal judge would be bound to do was to look and see whether or not there's been some undisputed determinations and there'd be no substance for habeas corpus application. It was all to nullification of the Habeas Corpus Act as we understand it. Now, with regard to the point which the Court of Appeals made that the petitioner did not carry his burden, this doesn't require much more than a comment. I took the time out today just to be certain about it and in the record before Your Honors is the brief I filed for this petitioner before Judge Igoe. Point three in that brief argued that we were entitled to a full plenary hearing and I even try to argue before Judge Igoe that Your Honors caricature of that judgment on application for certiorari amounted to a fine determination that the application for habeas corpus stated the cause of action. And that the Court was without power to do anything else but to grant a hearing.
William J. Brennan, Jr.: Now, a hearing is (Inaudible)
George N. Leighton: Well, Your Honor, first I wanted an opportunity to prove by competent evidence that this drug, contrary to the opinion of the Supreme Court of Illinois, this drug was not a proper medication under the circumstances of this case. You see, I had acquired a considerable amount of practical knowledge about hyoscines, scopolamine, and its use.
William J. Brennan, Jr.: Your point was that this had not been in Court, in the state proceedings?
George N. Leighton: That's right, Your Honor.
William J. Brennan, Jr.: And why has it not --
George N. Leighton: Well --
Byron R. White: There's no (Inaudible)
George N. Leighton: In the state proceeding, Your Honor, the -- see that the point is new, that's the first thing.
William J. Brennan, Jr.: Which one?
George N. Leighton: The question of the use -- you see, I don't think there's ever been a case where a man has been given hyoscine and then a confession taken from him and used against him. Either in practice or in any reported case, I haven't found that with exception of Griffith versus Rhay and I have conceded, everywhere I've argued, that Mr. John Branion is one of the most respected defense counsels we have in Cook County. But Mr. Branion just didn't understand the thrust of this question, it was complex. And the matter had not been explored properly. I take the position that the objection to the confession includes all the myriads of questions which are conceivable out of that objection. And one of the objections was when that -- when that confession was offered, that this drug given to the petitioner under the circumstances here involved was such as to have rendered him delirium --
William J. Brennan, Jr.: Or with that knowledge on the volume of the drug of that type or kind, Mr. Justice Fortas statement of (Inaudible) stated by the defense counsel then, would that offer you a substantial evidence?
George N. Leighton: I suppose that if it had been -- if all these facts had been known that the Supreme Court perhaps would not have been in -- led into this erroneous -- erroneous conclusion, I believe it could have been done, but it's just a matter of having the facts and since the objection was made, this is not a case where the defendant waived an objection, he did what he could on the circumstances.
William J. Brennan, Jr.: Is that -- how much, as the facts have claimed, confessions to be vital or (Inaudible) How much of that facts were indicated and stated?
George N. Leighton: None, Your Honor. Now, the point is made in the course of these proceedings that objections were made before Judge Butler to these other coroner's inquest to the confessions. Now, as a defense counsel with some experience, I can understand how, in a murder case, evidence of other charges would be excluded. And I'm told by a supplemental memorandum here that we have taken the position in this Court, we didn't take in the court below. But I've looked at the record very carefully and it isn't true that all this was excluded from Judge Butler. The record shows that when objections were made to these other hearings, the objections were finally overruled by Judge Butler, and he knew, Judge Butler knew that at the time that he was hearing evidence about this particular confession, he knew that at the coroner's hearing, there had been more than one confession taken, and that appears on page 141 of the printed abstract. Or if Your Honors need a most certain reference to page 392 of capital A of the typewritten record and Judge Butler overruled the objection and the questions that Judge Butler himself asked showed that he understood that more than one confession was involved. He says, Question: “Did you say it was about five minutes?” He answered, “For that particular statement?” Question: “Do you voted to asking this defendant questions about the medicine involved?” Mr. Boone: “That's right.” Question: “Was all the rest of the time that was spent there devoted to discussion about the matters?” “Yes, sir.” The Court: “Do you want to object to that question, Mr. Branion?” Mr. Branion: “Yes, Judge. I beg to it.” The Court: “Objection overruled.” Judge Butler knew very well that these interrogations at the coroner's hearing involved other charges so that after preliminary hearing to determine the admissibility of this confession, these other facts were either directly or inferentially brought in before Judge Butler. So it isn't correct to say as we were confronted with the last -- on the original argument that the defense succeeded in keeping out from Judge Butler all the information. Judge Butler is an experienced judge. He knew that a coroner's hearing of this kind and there's enough in this record that have alerted any experienced judge that this was a hearing in which they were trying to do what the police officer said. They were trying to clean up the record. At one point of its aspiration, the police officer complained that the coroner was preventing them from cleaning up the record with this social drearily, this narcotic addict of 19 years of age. And Judge Butler knew that, so that it is --
William J. Brennan, Jr.: Do you have evidence (Inaudible) demonstrated the unreliability of the (Inaudible)
George N. Leighton: That's right, Your Honor.
William J. Brennan, Jr.: -- on the same drug.
George N. Leighton: That's right, Your Honor. Your Honor it is probably the safest statement to make about this drug. If you were to make a complete study of all the scientific evidence about this drug, it's an undependable drug. It's a drug which has been limited in use because its reaction is so uncertain. It has idiosyncrasies which the best pharmacologist cannot predict. It depends upon the physical makeup of the individual, even the chemical content of his blood may be important at the moment that it's injected. It may have one reaction in one person of the same age, the same weight, and the same physical condition, and another person have a completely idiosyncratic result. Now, no one knows that condition of Charles Townsend at the time this drug was injected. But the significant thing is this, and I can't get away from this point. Before, the doctor was called, he didn't want to talk to anybody. He didn't want to talk about the case. No sooner the doctor left he was an entirely different person. Not only did he give the confession that they wanted, but he also gave the confession in this -- in the four of the cases and I think it's significant that when Your Honors requested the respondents that they answer more specifically paragraph 18 of the petition for habeas corpus, the attorneys for the respondent attacks as Exhibit A, the letter of Mr. Janega which he wrote to his superior about this incident. And in the main paragraph of this letter appear these words, “After his administrations referred to the doctor, I was able to get confessions from Townsend.” Those are the words of the Assistant State's Attorney who took the confessions, “After his administrations, I was able to get the confessions indicating that the injection of the drug was the prime moving factor that produced these confessions.”
Arthur J. Goldberg: Mr. Leighton, what happened in the other case (Inaudible) would you make the same (Inaudible) in making this confession?
George N. Leighton: No, Your Honor, because this would be different.
Arthur J. Goldberg: In what?
George N. Leighton: You see, Your Honor we have a number of cases during the prohibition days and even after of confessions taken from inebriated defendant. And those are the cases by the way which the Supreme Court had been relied upon. In those cases, Your Honor, there is absent state power. Say a man who drinks a bottle of whisky and gets drunk and goes out and confess that he murdered John, he can't complain anybody compelled him to confess. But a different situation exists when while under his intoxication, he's given a drug to awaken him by, I think, a police officer or a state police doctor. And then while he was emerging from his state of inebriation and this destruction of the will occurs by the drug which was given to him, a different situation occurs, Your Honor. I distinguish the case you put in this case on the simple ground that here we have that interposition of state power in the form of a needle and a drug injected by a police doctor.
Speaker: You have just as much state power in the case of the police officers who persist in taking a confession from a man he knows to be intoxicated at certain state action --
George N. Leighton: Well, Your Honor I was assuming, in the question of Mr. Justice Goldberg, I was assuming the case where a man is drunk in the cell and while he's drunk in the cell he begins talking. I'm not -- the case, Your Honor, refers to where while he's drunk the police officers job to get him to testify.
Speaker: I thought that's what you're --
George N. Leighton: No, Your Honor. No. In that case I would say the confession isn't voluntary also in that case. Now --
Potter Stewart: Well, the specific question which Mr. Justice Goldberg asked you, was more directly related to the facts of this case. This man was suffering from withdrawal symptoms and we've learned from the record in other cases that this is a very serious illness.
George N. Leighton: Yes.
Potter Stewart: And that a person so suffering has a compulsive need, either for a desire, either for more narcotics or for some sort of medicine to ease the great pain of that illness. Now, certainly a confession made under those circumstances and a confession made when they -- when no doctor was called to administer to that illness would be -- would raise a much more serious constitutional question than this one, wouldn't it?
George N. Leighton: It would. It certainly would Your Honor, it certainly would.
Potter Stewart: That has immunizes narcotics addict from an interrogation, isn't it?
George N. Leighton: Well, but Your Honor it seems to me a very simple rule to bear in mind that you don't question a person who doesn't have control of his willpower. And a narcotic addict in the throes of the withdrawal symptom is not a person who acts with willpower. Your Honors have held that any factor which destroys the will, whether be physical or mental, Your Honors have held that in Leyra versus Denno, Blackburn versus Alabama and all the cases Your Honors have decided. The important thing is -- the important question is, was this confession a result of a voluntary act. Was it volitional? Now, if narcotic addict takes his own drug and while he's lying there and joined stupor, that he's self-imposed, and he regurgitates a confession and all the police does listen to him, do nothing neither urging him, that question is more difficult but we don't have that questions before us. You see, now that question is a difficult question. But that's not the question now here Your Honor and I go back to the point which I think is the thrust of this case. Before the doctor came, he said, “I cannot talk to anybody.” And there -- this is undisputed. The police -- the police officer testified to his condition and then when the drug is given to him immediately, immediately the police officer testified that while Dr. Mansfield was leaving one room, he was leaving Townsend into the table where Mr. Janega was. And Mr. Janega said this was a different man entirely. The man whom he said that he wanted to have his capability determined by the doctor was now just simply answering questions and the -- and the chronology of events showed.
Speaker: Weren't all those issues before the jury?
George N. Leighton: Not as to the admissibility of the confession, Your Honor because in Illinois, we don't submit that.
Speaker: Well, before the jury, it isn't --
George N. Leighton: The credibility --
Speaker: -- but is it before the judge, was it?
George N. Leighton: That's right. Now, I'm not known --
Speaker: Did they make --
George N. Leighton: Your Honor, the record doesn't show except in the general discussion of this drug that the question doesn't -- the record doesn't show that Judge -- that Judge Butler had all of these, which is my point. And one of the tragedies of this case is this -- that all these facts are not known, that's why we have post convictions proceedings.
Speaker: Is it your point that there has been more knowledge, more scientific knowledge brought to light about the effects of this drug since the hearings were involved here?
George N. Leighton: No. Well, in the sense that someone representing this man knows about it. This defendant certainly didn't know anything about it. He didn't know. You see according to the prosecutions own witnesses, this man was just one grade of a (Inaudible).
Speaker: Or he has had a counsel, didn't he?
George N. Leighton: He had counsel, yes. He had counsel, court-appointed counsel, there's no question about that. I make no point here about in the competency of counsel as such except this, that inherent in the facts of this case Mr. Justice Harlan, that's not the question. And that is whether inherently in the facts here, there isn't a question of denial of counsel at the time of the interrogation, you see. And I submit that the objection to the -- to the confession made at the time he was (Voice Overlap) includes this question which was decided by the Court of Appeals for the Ninth Circuit in Griffith versus Rhay where in that case while the man was on the -- out of an operating table and while he still on the influence of several drugs something like scopolamine, hyoscine, he gave a confession. The Court didn't pass upon the involuntariness of the confession itself. The Court went to the much more esoteric question, and that is that he was denied right of counsel at the time of the interrogation when he was taken with police officers and court reporters and thus the confession is admissible. Now, and I submit to the Court that inherent in the objections of the confession, is included this other, which is a due process of questions which Your Honors have held --
William O. Douglas: What's the scientific knowledge of the -- is there anything else that the lawyers have regarding this drug?
George N. Leighton: It didn't have the facts.
William O. Douglas: (Inaudible)
George N. Leighton: Oh yes.
William O. Douglas: (Inaudible)
George N. Leighton: The record doesn't show that Your Honor, except that this fact --
William O. Douglas: That Judge Butler knew?
George N. Leighton: Yes. You see there was enough quarrel about it. There's enough quarrel about it between counsels to indicate that that everyone knew that this -- that as I -- I do not want to sound (Inaudible), Your Honor, but on January 4, 1954, it was Charlie Townsend day at the coroner's hearing because they had all the cases there that involved Townsend anywhere. And the point is made here by counsel for the respondents that at this coroner's hearing, there was no denial of due process because his sister was present. Now, Your Honors can imagine how it affected one sister of his at a place where the prosecution represented by a lawyer of some 20 years experience and half-a-dozen police officers, and the only one present there in the audience is his sister. They make that point.
Arthur J. Goldberg: Mr. Leighton, did he -- at the hearing, the coroner's inquest also testified that these other crimes of which he is not -- not have been found guilty?
George N. Leighton: Well, Your Honor, that question brings out a very instinct fact about this case. He did testify about this case here, the Boone case. There's a dispute between the parties whether that testimony was voluntary or not. In fact, the record shows a great deal of concern about that and that's how these coroner's hearings came into prominence in the trial of the case. The defendant testified that what he said at the coroner's hearing was in fact told him by the police officers. That was his testimony on the record. It was this testimony of the defendant on direct examination that gave rise to the attempt of the prosecution to prove that what he said before the coroner's hearing was not a suggestion by the police officer but was voluntary. There's a great deal of dispute whether or not at the coroner's hearing when the coroner did what they do in Chicago, asked the defendant, “Do you want to testify?” He said, “No.” There's a great deal of difference between the parties where that occurred. Finally, with this police officer questioning him, he finally said yes. Then he answered the questions almost in the same way that the statement is worded. The result --
Arthur J. Goldberg: The statement or the other statements also?
George N. Leighton: No, this one in particular.
Arthur J. Goldberg: This one.
George N. Leighton: This one particularly. There's an interesting episode there when -- in connection with one of the homicides, he -- he asked the question, “Where were you on the night of December 3, on that date?” And he said, “I was at -- at 6:30 p.m.” or whatever the hour was, he said, “I was at Giles & 35th.” And as Your Honor well knows, Giles & 35th is quite a distance from 47th & Wabash. So the coroner pointed out that was quite a distance. And there, it developed that episode. Can I make (Voice Overlap) --
Earl Warren: We'll recess now.


Warren E. Burger: Mr. Harris, I think you may proceed whenever your are ready now.
Robert L. Harris: Mr. Chief Justice, and may it please the Court: This case comes from the State of California which has order Pacific Gas and Electric Company to include in its monthly billing envelope the fund solicitation messages of a third party. We are required to include the message four times per year for a two-year period. For the past 60 years, PG&E has used the billing envelope to communicate its message through the PG&E Progress. The envelope has never been open to the public. The California Supreme Court refused to hear Appellant's petition for writ of review, thus upholding the Commission's decision. That decision was appealed to this Court, which noted probable jurisdiction. The issue presented on appeal is whether or not the State of California can, consistent with the First Amendment to the United States Constitution, compel Pacific Gas and Electric Company, a privately owned, public utility, to include in its monthly billing envelope the fund solicitation of a third party, in this case, TURN, Toward Utility Rate Normalization. Utility speech is protected by the First Amendment. In Consolidated Edison, this Court decided in 1980 that the State of New York could not regulate the political speech that Consolidated Edison put in the billing envelope unless the state showed a compelling state interest for that regulation. The right not to carry the message of others applies, indeed, to a corporation.
William H. Rehnquist: What case holds that?
Robert L. Harris: First National Bank of Boston versus Bellotti, decided in 1978. In that case, this Court was faced with the issue as to whether or not the corporation was entitled to the protection of the First Amendment. As a matter of fact, that was the first time the issue was squarely presented to this Court. And, Justice Powell writing for the Court, said that the inherent worth of speech is not determined by identity. He said that you look not to the identity of the person who is asserting the right, you look to see if the right that is being asserted is a right that is protected by the First Amendment.
William H. Rehnquist: Did that case hold that the kind of Wooley versus Maynard type of First Amendment rights the right not to carry a message you don't agree with applied to corporations?
Robert L. Harris: That case was not faced with that issue.
William H. Rehnquist: Do, it didn't hold it?
Robert L. Harris: It did not hold that a person had a right... that a corporation had a right not to carry somebody else's message.
William H. Rehnquist: So, what case of ours do you rely for that proposition?
Robert L. Harris: There is no case that specifically holds that in the case of a corporation, however, we do rely heavily upon at least two cases, Miami Herald versus Tornillo and Wooley versus Maynard. In the Miami Herald case, the Court held that the State of Florida could not compel the Miami Herald to publish the reply messages of third parties and in that decision Chief Justice Burger, writing for the Court, indicated that although the State of Florida made good arguments in terms of why a wide variety of views are necessary or desired, but the Court says in each instance where there is an enforced right of excess... access... necessarily calls for some mechanism, either consentual or governmental.
Warren E. Burger: Do you think there is a difference between a newspaper, which is not a regulated enterprise, and a public utility, which is quite strictly regulated, a difference for these purposes?
Robert L. Harris: For these purposes, I think that the same principle that applies in Tornillo should apply here. The mere fact of regulation, as this Court indicated in Consolidated Edison, does not preclude a utility from asserting First Amendment rights. In Tornillo, the difference, of course, is that Tornillo involved a newspaper. Here we are involved with a situation where you have a utility's billing envelope. But, the principle is the same; that is, as the Court said in Tornillo, newspapers should not be compelled to publish that which reason tells them should not be published. Here a utility should not be compelled to carry a message in the billing envelope that reason tells it should not be carried.
Warren E. Burger: Yes, but hasn't the Court distinguished between different kinds of media? The Red Lion case, for example, involving the fairness doctrine who was dealing with the broadcast station which is regulated in a sense and yet the broadcasters are required to do certain things.
Robert L. Harris: In the case of Red Lion, there Red Lion did not rest upon the basis that the broadcasters had a monopoly. It rested rather upon the basis that they were using a scarce resource that was not open to the public. Here, the mail is not a scarce resource. And, as the Court reasoned in Red Lion, and again emphasized in Consolidated Edison, is that a broadcaster can only communicated through those scarce resources.
Sandra Day O'Connor: Mr. Harris, do you concede that the Public Utilities Commission can require PG&E to carry in its billing envelopes notices of public rate hearings or things of that kind?
Robert L. Harris: Justice O'Connor, we have, indeed, carried such notices. We are willing to do that.
Sandra Day O'Connor: Well, I am asking if you concede whether the Public Utilities Commission can properly, under the First Amendment, require the company to do that?
Robert L. Harris: Yes, we do concede that.
Sandra Day O'Connor: And, why is that different in your view?
Robert L. Harris: That is different because in the case of a government notice, here an informational notice, informing utility customers that a hearing is going to be on such and such date or that there is a public health or safety matter pending somewhere concerning the utility, it is quite different from compelling PG&E to carry in its billing envelope the fund raising message of a third party unregulated by the Commission, a third party who is free to--
William J. Brennan, Jr.: Does this argument suggest, Mr. Harris, that the PUC order that we have before us, you would not object to it if they permitted TURN to insert only factual matter that dealt with the public utility business?
Robert L. Harris: --No, it would not, Justice Brennan. We would object to it because we would be forced to carry--
William J. Brennan, Jr.: I asked you that question because I thought you answered Justice O'Connor that the PUC could require you to insert matter that dealt with rates.
Robert L. Harris: --As I understand Justice O'Connor, it was whether or not we could be compelled to carry a state's notice. As I understand your question, it is whether or not we can be compelled to carry a private person's notice.
Speaker: That is right.
Robert L. Harris: And, no, we cannot, I don't think, consistent with the First Amendment unless the state shows a compelling state interest for ordering us to do it. We rely on Wooley versus Maynard.
William J. Brennan, Jr.: It is the death or die or whatever.
Robert L. Harris: No, it is not the death or die. We also rely on the general principles of the First Amendment and that is compelling someone to speak when there are other ways available.
William J. Brennan, Jr.: Are you going so far as to suggest that a corporation's negative First Amendment right, as you perceive, is co-extensive with the individual?
Robert L. Harris: Yes. I think that this Court intimated that to a certain extent in Harper and Row versus Nation Enterprise by Justice O'Connor where she indicated and cited really that the right to speak also necessarily includes the right not to speak. And then she quotes New York's Chief Judge Poole in terms of how they serve the same ultimate purpose. The purpose that is being served here is the right not to be compelled to carry someone else's message.
William J. Brennan, Jr.: It makes no difference whether it is an individual or a corporation?
Robert L. Harris: I don't think it is any different at all whether it is an individual or a corporation. You cannot look and say in the one instance this is a corporation, therefore, you carry the message without regard to anything else. I think you have to look at the nature of a right involved. Is that right protected by the First Amendment. Here, the right involved is the right not to carry the message of someone else.
Thurgood Marshall: Is there any difference with a utility?
Robert L. Harris: I think there is a difference. I don't think there is any difference whether it is a utility or any other corporation.
Thurgood Marshall: Did the state order the utility to publish the rate schedule?
Robert L. Harris: Yes, indeed, Your Honor.
Thurgood Marshall: Well, there is a difference.
Robert L. Harris: Yes, there is a difference if it is the message of the state. If it is a message of a third party, then I would disagree.
Byron R. White: Why shouldn't it or why doesn't it make a difference, as the Court below held, that the extra space in an envelope doesn't belong to the utility?
Robert L. Harris: It is true that the Commission below held that the extra space does not belong to the individual.
Byron R. White: It doesn't belong to the utility.
Robert L. Harris: Doesn't belong to the utility.
Byron R. White: Yes.
Robert L. Harris: Sorry.
Byron R. White: Yes.
Robert L. Harris: It doesn't matter because what we are talking about is the regulation of what goes into the billing envelope.
Byron R. White: Well, I know, but the space doesn't belong to the utility, it belongs to the consumer, it was held below, right? So, the Commission said we are going to fill up that space that belongs to the consumer with... periodically with something that we think the consumer would be more interested in.
Robert L. Harris: It is true that that is what the Commission held. But, we argue that the First Amendment cannot depend upon a metaphysical definition of space.
Byron R. White: How does the First Amendment give the utility the right to use that space?
Robert L. Harris: What we are talking about, Justice White, in addition--
Byron R. White: We are talking about who gets a free ride on that space.
Robert L. Harris: --If the question is who gets a free ride, the Commission can certainly deal with that question by assessing an economic value to that extra space. But, here, in order for the consumer group to use that space, they must use an envelope, an envelope that the Commission has not said belongs to the rate payer. And, in using that envelope we are compelled to associate, we are compelled to be the courier of someone else's message and we think that is protected by the First Amendment.
John Paul Stevens: Mr. Harris, a moment ago you referred to the Harper and Row opinion and the suggestion that the right to speak and the right not to speak are somewhat similar. Do you think the right not to be a courier is equivalent to the right not to speak?
Robert L. Harris: I think it is very, very close.
John Paul Stevens: It is clearly not the same, is it?
Robert L. Harris: They are not identical, no.
John Paul Stevens: Does any consumer object to having the consumer space in the envelope used in this manner?
Robert L. Harris: We don't know, Your Honor. That wasn't part of the record below. But, I would suspect that many consumers will object, because there are many consumer groups.
Byron R. White: Wouldn't you say the Commission would have the power to order... to prevent the utility from putting anything in the envelope except the bill?
Robert L. Harris: I don't think so. I think that would clearly reverse Consolidated Edison.
Byron R. White: Well, why? The space doesn't belong to the utility. Why should it get a ride out of it?
Robert L. Harris: But, the outcome of this case does not turn upon who owns the extra space.
Byron R. White: But, it does on who owns the envelope.
Robert L. Harris: Well, I don't think it necessarily turns on who owns the envelope either.
Byron R. White: Well, that is the way you are being a courier.
Robert L. Harris: The envelope has not been held to be the property of the rate payer. The envelope carries the name of PG&E. The envelope is material that we must send to the rate payer. Whatever is in that envelope is associated with PG&E.
William H. Rehnquist: Of course, PG&E could change that very easily if it wanted to by saying PG&E and then adding TURN to the envelope, I mean, if it disliked the notion that it was misleading people.
Robert L. Harris: Then the association would become even worse because there you have both PG&E and TURN being the sender of the bill. The purpose of the billing envelope is to send a bill. Even aside from any other document included therein, it is the forced association, the forced compulsion to speak when we prefer not to speak that is at issue here.
William H. Rehnquist: Don't you think there is some difference between the loyal, feisty citizen of New Hampshire who didn't believe in live free or die and, therefore, didn't want to carry it on his license plate, kind of an individual type of thing that always struck me, though I must say I didn't agree with the result in that case, and the corporation. I don't see quite the same personality element there.
Robert L. Harris: It is not the same personality, of course, but it is the right that is involved, the right not to be the courier of someone else's message that I think is at stake here. In Wooley, live free or die. Here, we carry whatever the message may be that is given to us from TURN into a billing envelope that we have mailed out for over 60 years. People associate what we mail in the PG&E envelope with PG&E.
William H. Rehnquist: Can't you, under the Commission's ruling, put a disclaimer on what you circulate, saying this is not produce by PG&E or something like that?
Robert L. Harris: The opportunity to put a disclaimer--
Byron R. White: TURN has to under the order.
Robert L. Harris: --Under the order, TURN must put a disclaimer. But, a disclaimer would not clear the violation. As I indicated, for over 60 years this has been the PG&E envelope. The forced association causes the injury. The opportunity to disclaim an inaccurate or an inflammatory message will not suffice to undo whatever damage that may have been done by including the message. The State of California cited PruneYard as its--
John Paul Stevens: Would you kind of enlighten me a little more about the nature of the damage to the corporation. It is not pecuniary injury, is it?
Robert L. Harris: --No, it is--
John Paul Stevens: It is kind of an insult.
Robert L. Harris: --It is reputation.
John Paul Stevens: Now, what is it? Does it adversely affect the reputation or it is misleading or how does it hurt the corporation?
Robert L. Harris: It affects us in this way. Over the years, we have expended a lot of money building up the image of PG&E, building up our corporate image. To the extent--
John Paul Stevens: Is it part of your image that you don't like people to oppose rate increases? [Laughter]
Robert L. Harris: --No, Your Honor. We have not even carried the message of those who support rate increases. We have not carried the message of anyone other than PG&E, although we have been requested by numerous jurisdictions, including the City and County of San Francisco to carry its messages. But, as you can probably see, once we become involved in that, then we find ourselves irretrievably entangled in a mess. This order requires that the PUC place itself in the position of selecting the speakers. In other words, who uses this envelope, whether it is TURN or some other person. They must first come to the Commission, must first indicate to the Commission the subject matter that it intends to talk about. Once it indicates that, then the person must indicate whether or not the viewpoint expressed is one that is in support of PG&E or opposed to PG&E, because, as the decision said, it is the purpose to get a variety of views in addition and opposed to PG&E. I think the government really will become so entangled, unlike in PruneYard, in picking and choosing speakers, that government will end up being the ultimate arbitrator of what is or what is not said.
Warren E. Burger: Suppose a citizens' committee is organized in favor of public ownership of all utilities. Under this order, could that committee put its material out through the monthly bills?
Robert L. Harris: If the Commission so decrees. It is up to the Commission. Under this order the Commission can allow anyone that it pleases to use the envelope. All they need do is file a complaint and if the Commission believes that the subject matter is proper or the viewpoint expressed is proper, then the Commission will allow... will compel us to carry that message.
William J. Brennan, Jr.: Not flyers for candidates for public office?
Robert L. Harris: No. It would discriminate against them. It did that, as a matter of fact, a year ago. A Committee for One Million, Proposition 36, a Jarvis/Gann initiative, applied to the Commission because they wanted to indicate to rate payers that there was a measure on the ballot that would affect rate payers. But, the Commission, and that is in the Appendix to the Jurisdictional Statement, said that because it did not directly relate to a Commission proceeding that they shall be denied and they were denied.
Thurgood Marshall: How about solar energy? I guess you wouldn't mind carrying that, would you?
Robert L. Harris: We have carried Commission notices concerning solar energy before, but we have not been compelled to carry the messages, for example, of a private corporation in the solar industry who wants to promote his particular device, as TURN is trying to promote its--
Thurgood Marshall: That is the one I was talking about.
Robert L. Harris: --We have not been compelled to do that.
Warren E. Burger: Suppose some group came in with material, information, propaganda, whatever you want to call it, about tariffs, urging that tariffs be put on all imports from Japan. Would the Commission have the authority to have that circulated?
Robert L. Harris: Under this order, of course, it would, but I don't think that the Commission would necessarily have the authority to compel us to carry that message as promulgated. I think it is important to remember that we do not take the position that the Commission can never compel us to carry someone's message. We think that when the Commission endeavors to do that the Commission still has to show an overriding governmental interest for making us carry the message that you indicate. And, in the instant case, the Commission, we don't think has met its burden of proof of showing that there is a compelling state interest for carrying TURN messages. The Commission already has California state law which says specifically that intervenor funding can be given to people who intervene in rate cases. For example, the Commission has awarded more than $160,000 to TURN during the past year, the last two years. Pending now before the Commission is an application for over $800,000 by some other consumer group. So, the Commission already has at its disposal a very clear mechanism for taking care of a problem that it wants to resolve. Thus, there is no reason for it to broadly stifle First Amendment rights. There is no reason for it to compel PG&E to become the courier of TURN's message. TURN can mail it to the householder.
John Paul Stevens: I am not sure I understand. You say the Commission has ordered the utility to pay TURN $160,000 or give it from public funds?
Robert L. Harris: From public. What it does is it will order the utility to pay it and then the utility recoups it in its next rate case that comes up.
John Paul Stevens: I see. And, is it in the nature of like paying for their attorneys' fees for participating in the procedure?
Robert L. Harris: Attorneys' fees.
John Paul Stevens: I see.
Robert L. Harris: All fees associated with the case. In PruneYard which, of course, is the case which they rely upon very heavily, there you had a shopping center, a shopping center that was open to the public to come and go as it pleased. Some 25,000 people congregated their daily. There was no requirement that government pick or choose the speakers. The only requirement was that the facility... in that case the shopping center... be made available. But, here, in order for government to carry out its order, it must become ensnarled in picking and choosing speakers, precisely what the Court said in Police Department of Chicago versus Mosley. Government should not be involved in picking and choosing speakers. When you have other ways to accomplish the governmental purpose, then government ought not to be allowed to then use means that will broadly stifle First Amendment activities. Here, unlike in PruneYard, government did not permit PruneYard, as Justice Rehnquist pointed out, to open those portions of the shopping center that had never been open to the public. Here, PG&E is required to open its billing envelope that it has never opened to the public. The question is basically one of does it really make sense, in view of all these other alternatives, to compel PG&E to carry somebody else's message that can easily be disseminated in another manner.
Byron R. White: I suppose the Commission could say to PG&E, well, if you are going to use this extra space, you ought to pay for it.
Robert L. Harris: We have no problems with paying for the extra space. We conceded that in the Court below, that if that is the governmental interest involved, recoupment... the value of that extra space, which it said it was in its decision, then there is no reason why government cannot assess... Let's say, for example, if it is worth $300,000 and probably charge that, assuming it is reasonable, to PG&E. PG&E would have no constitutional right to--
Byron R. White: And that is your argument. Couldn't they recoup from the consumer.
Robert L. Harris: --That is right. That is quite correct.
Speaker: Stockholders.
Robert L. Harris: It would have to be borne by the stockholders. I will reserve the balance of my time.
Warren E. Burger: Mr. Fogelman?
Mark Fogelman: Thank you, Mr. Chief Justice, and may it please the Court: In order to put this case--
Warren E. Burger: Would you raise your voice some, Mr. Fogelman?
Mark Fogelman: --Yes, Your Honor. In order to put this case in its proper perspective, it is important to step back a moment and look at what the Commission did and why it did it. PG&E is the largest investor-owned gas and electric public utility in the country. It has a lawful and practical monopoly for the delivery gas and electric service with in its service area, which included most of the State of California. It recovers its reasonable costs and a reasonable rate of return in rates paid by the rate payers. Its representation in Commission rate cases is very effective. That representation by some of the best expert witnesses, consultants, and lawyers that money can buy is considered an operating expense to the utility and is paid for ultimately by the rate payers. The public utility--
Warren E. Burger: Well, to some extent, for the stop orders too, isn't there?
Mark Fogelman: --Not really, Your Honor, because--
Warren E. Burger: Doesn't it produce the revenue? Isn't there some reduction of--
Mark Fogelman: --Well, it is an operating expense and all of their operating expenses are recovered in rates, I believe.
Warren E. Burger: --Well, aren't the operating expenses shared by the rate payers and the stockholders?
Mark Fogelman: It is my understanding that 100 percent of operating expenses would be recovered. Of course, costs which are unreasonable or imprudent would be disallowed from the rate base and would be borne by the shareholders.
Warren E. Burger: What are the limits on how this authority of the Commission can be used?
Mark Fogelman: The Commission is limited by its state-authorized authority under the State Constitution and it is limited by the United States Constitution. Insofar as it does not violate the principles of either of those authorities, it is essentially free to regulate public utilities in the public interest. With respect to ordering a public utility to carry the messages of a third party, it is difficult to pose the precise limits. There are probably many questions which the Commission ultimately will be required to decide in pursuing this program.
Warren E. Burger: Who is going to define those limits?
Mark Fogelman: Your Honor, ultimately the Commission will do so.
Warren E. Burger: Suppose someone comes in and says here is a... in the next election there is going to be a recall of three state Supreme Court Justices on the ballot and we aren't taking any position as to whether they should be recalled or not recalled, but here we want this message put in that you should be sure to vote on this because that is a exercise of your right to control your public servants, including the courts. Would the Commission let that go in?
Mark Fogelman: Well, under this program they certainly wouldn't and that is the only--
Warren E. Burger: I didn't get that, under what?
Mark Fogelman: --Under this program, they certainly would not.
Warren E. Burger: Why not?
Mark Fogelman: Because the purpose of this program, the primary purpose, the reason why the state has done what it has done here, is to permit consumer groups to solicit funds to increase their participation in Commission proceedings involving PG&E. And, insofar as the access furthers that primary purpose, access would be granted. Now, it is possible that the Commission could enlarge the scope of the program.
Byron R. White: Well, the predicate for its act was though that... for the order was that the space belongs to the consumer, and, hence, we will act as proxy for the consumer and send them out something that we think they might be interested in.
Mark Fogelman: Well, Your Honor--
Byron R. White: Based on that I wouldn't think the utility... doesn't own the space, I wouldn't think the utility would have standing to object to whatever it was the--
Mark Fogelman: --Your Honor, there is no question in our mind that the determination of rate payer property is an independent basis for the decision.
Speaker: --Yes.
Mark Fogelman: It is res judicata here.
Byron R. White: I agree with that. All I am saying is--
Mark Fogelman: However, we don't think it makes any difference.
William H. Rehnquist: --Why is it res judicata here?
Mark Fogelman: It is res judicata here because it was decided in an earlier proceeding that the extra space in the envelope is rate payer property. PG&E was a party to that proceeding, did not take it up to a higher court, and in this case, the Commission refused to allow that particular finding to be relitigated. The California Supreme Court essentially affirmed the finding of res judicata.
William H. Rehnquist: Well, it essentially denied review.
Mark Fogelman: Well, denial of review is a decision on the merits under California law and all questions of law and fact.
Thurgood Marshall: Mr. Fogelman--
Mark Fogelman: Yes, Your Honor.
Thurgood Marshall: --There are no guidelines, right?
Mark Fogelman: Under this present program, there are a number of guidelines.
Thurgood Marshall: Well--
Mark Fogelman: Which can be inferred from the criteria under which--
Thurgood Marshall: --I don't consider guidelines that can be inferred. I consider guidelines as something you can point to.
Mark Fogelman: --All right. TURN was permitted in the billing envelope because of four characteristics enunciated in the Commission's decision. The first was an ability to represent a significant segment of the rate payer population. The second was a present, current involvement in proceedings involving PG&E. The third was that it was a duly constituted non-profit corporation, and the fourth was that it had a financial hardship if it were not permitted access in participating in PG&E proceedings.
Thurgood Marshall: That is it?
Mark Fogelman: Those were the characteristics, yes.
Thurgood Marshall: Well, then, could you compel them to carry an advertisement from the sun people that want to use that energy?
Mark Fogelman: Your Honor, I think it would be fair to assume that since their participation and their intention to solicit funds, specifically for the purpose of participation... In fact, there is an auditing procedure--
Thurgood Marshall: Is there any other governmental agency in California that can control what a corporation may say?
Mark Fogelman: --Your Honor, there are a number of state agencies that can do that?
Speaker: Like what?
Mark Fogelman: The State Banking Commission regulates banking. There are truth-in-lending type laws, truth-and-lending type disclosure.
Thurgood Marshall: Truth in lending.
Mark Fogelman: In fact, the state often requires speech to be carried. This Court--
Thurgood Marshall: What other corporation is required to carry something that they don't want to carry?
Mark Fogelman: --There are many disclosure requirements. The SEC proxy statements--
Thurgood Marshall: This isn't disclosure. This is propaganda.
Mark Fogelman: --Well, Your Honor, what it is is fund solicitation messages which this Court in the Schaumberg and the Cornelius case indicated was fully protected speech. It involves the provision of information and advocacy of causes and that is all that TURN is--
Thurgood Marshall: Well, freedom in lending doesn't require you to send it to everybody. You are only required to send it to your customers.
Mark Fogelman: --That is the program.
Thurgood Marshall: So, these are not freedom-of-lending customers. These are customers who can't help themselves.
Mark Fogelman: Well, these are customers of the utility.
Thurgood Marshall: My point is that you see no difference between a utility and an ordinary corporation.
Mark Fogelman: Your Honor, I do. I think a public utility is far more heavily regulated than many corporations.
Thurgood Marshall: That is why you want to use it here.
Mark Fogelman: Well, I think--
Thurgood Marshall: If it were not a utility, you wouldn't be interested, would you?
Mark Fogelman: --Well, the Commission does regulate public utilities.
Thurgood Marshall: It is aimed at a utility.
Mark Fogelman: Yes.
William H. Rehnquist: Mr. Fogelman, a moment ago you made the statement that under California law denial of review by the Supreme Court of California is an affirmance on fact and law. Is that true where the only proceeding below is an agency proceeding and it has never been to court?
Mark Fogelman: Yes, the Consumer Lobby against Monopolies case specifically holds that. I think it is page 901, 25 Cal. 3rd.
Byron R. White: You said that although the property matter was an independent ground for decision, you don't think it is necessary or important.
Mark Fogelman: Well, I think it doesn't make a difference to this decision, because I believe that the Public Utilities Commission, under its broad regulatory powers, has an authority on the objective facts of this case to enter the order that it did, even if the space inside the envelope were deemed utility property.
Byron R. White: Yes. Well, let's assume that the bill takes... There is no spare space in an envelope and the PUC orders the utility to use a larger envelope and to let TURN put its material in it as long as TURN pays for it. That would be the same case, wouldn't it?
Mark Fogelman: I think that would be a legitimate situation. I think also if the rate payers paid for this space--
Byron R. White: So, then, the Commission really would be... the company really would be a courier of somebody else's materials.
Mark Fogelman: --That is right. Basically the billing envelope is a unique medium of communication.
Byron R. White: Well, let's suppose that your answer to that question is wrong, that they couldn't make the utility carry TURN's message on those facts. Would that mean that you have to lose this case?
Mark Fogelman: No, because if the Court were--
Byron R. White: Then you have to get to the property thing.
Mark Fogelman: --Then you would have to get the the property thing and that is binding on this Court as a res judicata determination.
Sandra Day O'Connor: Well, Mr. Harris, isn't your general regulatory rationale really foreclosed by the Consolidated Edison case?
Mark Fogelman: No, it is not, Your Honor, for a couple of reasons.
Sandra Day O'Connor: It seems very similar.
Mark Fogelman: Well, the big distinction there is that Consolidated Edison involves a restriction on utility speech. It is very important, I think, for this Court to look at the purposes of the First Amendment which underlies the difference between affirmative speech and negative speech rights. Insofar as someone is attempting to speak, and the state says you can't speak, you have a situation where the marketplace of ideas, society's interest in obtaining information, wide-open debate, is limited and that is the Consolidated Edison case.
Sandra Day O'Connor: Well, in some cases, the Court has indicated at least that there is a concomitant right not to speak, has it not?
Mark Fogelman: Yes, it has, Your Honor. But, the underlying purposes which serve the right not to speak, the right to refrain from speaking and to refrain from associating the views of another, is very different from the marketplace of ideas notion. It is, and this is not to be trivialized, it is an important purpose. It is the sanctity and integrity of an individual's belief and thought. It is the interest that was involved in Barnett--
Sandra Day O'Connor: And, you take the position that that does not extend to a corporation?
Mark Fogelman: --I take the position that it does not extend to a corporation which is an artificial entity. Furthermore, that it certainly doesn't extend to a public utility which is a very heavy regulated artificial entity. Furthermore, I don't believe that it is co-extensive with the affirmative counterpart which serves entirely different interests.
Sandra Day O'Connor: Does it strike you that the Commission's theory about broader participation or expression of a variety of views is basically a content-based determination? The Commission has to look at what it is that TURN is doing and wants to say as the basis for its order that it be allowed to use the envelope.
Mark Fogelman: The order in a broad sense is content-neutral, because the Commission has disavowed any intention of looking at the way that TURN solicits funds. However, there is a limited purpose--
Sandra Day O'Connor: It certainly has to look at the nature of what TURN is doing and saying in order to decide that it is going to order that its message be carried.
Mark Fogelman: --Well, to the extent that TURN's speech might hypothetically... and, again, this has never occurred... I might say in a similar experience, the UCAN situation, no problem certainly developed over a two-year period, but assuming that TURN were to exceed the purposes of the program and to make... engage in some sort of use of the extra space, which was not a solicitation of funds, in that situation the Commission would have to look at that. I am not sure precisely what--
Byron R. White: At least it is content-based because... At least it says we prefer to have TURN's material in this extra space than the company's.
Mark Fogelman: --What it says, Your Honor--
Byron R. White: Well, isn't it? Isn't that right? It prefers TURN's to the company's material.
Mark Fogelman: --No. The company gets in the billing envelope every month of the year and it gets in the extra space at least eight months of the year and possibly all twelve.
Byron R. White: That may be so, but when it can't get into the envelope, can't use the extra space, the Commission has said we prefer TURN's material to go in the extra space.
Mark Fogelman: Well, there is--
Byron R. White: That is four times a year it makes that preference.
Mark Fogelman: --Four times a year TURN has priority, that is correct. However,--
Byron R. White: Well, that is based on content.
Mark Fogelman: --Well, in a sense. I don't see how the company--
Speaker: I don't see what else it is.
Mark Fogelman: --We are concerned with a supposed violation of the company's First Amendment rights.
William J. Brennan, Jr.: Did I understand you to answer Justice O'Connor that a corporation has no First Amendment right to refuse to carry the message of somebody else if ordered by the Public Utility Commission?
Mark Fogelman: Your Honor, I certainly don't think that the corporation has a right to refrain from speaking which is implicated in this case. I would think that you could possibly postulate a situation in which some area of corporate autonomy would be so threatened by a state compulsion to speak that there would be a violation of the principle.
William J. Brennan, Jr.: Of what principle, First Amendment?
Mark Fogelman: Of the right to refrain from speaking under the First Amendment.
Speaker: Yes.
Mark Fogelman: On the other hand, I don't think--
William J. Brennan, Jr.: What about an incorporated church?
Mark Fogelman: --Well, that would raise other First Amendment questions.
William J. Brennan, Jr.: How about the John Birch Society?
Mark Fogelman: The compulsion of the John Birch Society to speak would--
William J. Brennan, Jr.: It is a corporation.
Mark Fogelman: --It is a corporation. And, I guess my answer would have to be that you can postulate situations in which a corporation which concededly has some degree of private autonomy would have that autonomy violated by a compulsion to carry.
William J. Brennan, Jr.: Such as the NAACP?
Mark Fogelman: You could probably postulate a set of facts involving the NAACP.
William J. Brennan, Jr.: So, you couldn't really mean to say that an old case is a corporation and a right under the First Amendment to refuse to carry somebody else's message.
Mark Fogelman: I think what I meant, Your Honor, is that in this case there is no violation of any right to--
Warren E. Burger: Let me narrow that down to a little narrower question than Justice Brennan's. Take a regulated, a regulated activity, the three major commercial networks. Could the Federal Communications Commission come down with an order and have it constitutionally enforced providing that no prime minister of any other country or any chief of state of any other country could be on the television program unless it was approved by the State Department?
Mark Fogelman: --That is quite a difficult hypothetical. It certainly is not this case.
Warren E. Burger: They are both regulated industries.
Mark Fogelman: I am not sure, Your Honor, but it is a heavily regulated medium of communication, that is the airwaves.
Warren E. Burger: Well, a broadcast station, not necessarily a network... a broadcasting station is more regulated than the electric utility in the sense that the Federal Communications Commission can terminate their license and put them off the air every three years, I think it is.
Mark Fogelman: That is true. On the other hand--
Warren E. Burger: That is pretty heavy regulation, isn't it?
Mark Fogelman: --That is heavy regulation. Of course, the state here has granted a monopoly to a public utility and it is only at the pleasure of the state that the utility has that monopoly and it is to protect the public that the state regulates the public utility in the public interest.
William H. Rehnquist: Is an example of the sort of corporate First Amendment right that would be sustained the Tornillo case where certainly the Miami Press was a corporation and its First Amendment right to publish obviously allowed it not to have to carry the messages of others.
Mark Fogelman: Well, the Tornillo case, in our view, does not turn on the fact that the Miami Herald was a corporation.
William H. Rehnquist: No. The press freedom extends to private individuals or corporations alike. And, I take it what you are saying is the since the PG&E is not in the business of running a newspaper, it isn't governed by that case.
Mark Fogelman: Well, no, that is not what we are saying. In some sense, a pamphlet, a document like Progress, would be equivalent to a newspaper. PG&E's position is that the billing envelope, the medium of delivery of its newspaper, is somehow subject to inviolable editorial discretion and that is not the case.
William H. Rehnquist: Would Tornillo come out any differently if the Florida statute had said along with the newspaper you have to put in a little envelope that you deliver the newspaper in, a retraction. It doesn't have to be in the paper itself.
Mark Fogelman: I think it might well have come out differently, particularly if the supplement were clearly identified as being the views of the speaker, and, furthermore, if there were no cost to the newspaper. One of the critical features of Tornillo on which that case turned was the fact that there was a penalty on the affirmative speech of the newspaper. Because the newspaper spoke about certain subjects, the right-of-reply statute was triggered and space had to be given. That is not involved here because TURN gets access to the billing envelope under this program no matter what PG&E says. So, there is no chilling effect which would tend to cause the newspaper not to address a specific point of view.
John Paul Stevens: Mr. Fogelman, a little while ago you said there was absolutely no content regulation here if I understood you correctly. Is it not true that there is a requirement that there be a disclaimer enclosed and isn't that part of the content--
Mark Fogelman: Yes, Your Honor. That would be comparable probably to the disclosure requirements that the Court--
John Paul Stevens: --It is content regulation?
Mark Fogelman: --It is content regulation, but it is designed to protect PG&E's First Amendment rights.
John Paul Stevens: Well, I am not going beyond that. It is that much.
Mark Fogelman: Actually, Your Honor--
Lewis F. Powell, Jr.: Mr. Fogelman?
Mark Fogelman: --Yes, Your Honor.
Lewis F. Powell, Jr.: Have you answered his question?
Mark Fogelman: Yes, Your Honor.
Lewis F. Powell, Jr.: I was under the impression that the Commission order was limited to neutral messages. Did it use the word "neutral"?
Mark Fogelman: The statement was that in a broad sense you might consider this regulation to be content-neutral because--
Lewis F. Powell, Jr.: Did the Commission use that term?
Mark Fogelman: --No, it did not use that word.
Lewis F. Powell, Jr.: That is your word?
Mark Fogelman: That is my word.
Lewis F. Powell, Jr.: Well, the purposes of TURN are not entirely consistent with those of the public utility, I understand. What is the constitutional bylaw stated purposes were these?
Mark Fogelman: The purpose of... I believe TURN's bylaws state that its purpose is to provide representation to the interests of residential rate payers of Public Utility Commission proceedings.
Lewis F. Powell, Jr.: To oppose rate increases?
Mark Fogelman: To oppose rate increases.
Lewis F. Powell, Jr.: Let's assume, for example... You have had a good many hypotheticals posed to you this afternoon, but suppose the entity that came along and asked for permission for space opposed private ownership of utilities. Would that be a neutral message?
Mark Fogelman: Your Honor, any message is not a neutral message. Any message that takes a position--
Lewis F. Powell, Jr.: Slightly contrary to the private utility point of view.
Mark Fogelman: --Right. It is an advocacy message.
Speaker: Right.
Mark Fogelman: But, the point is that in letting a participant in Commission proceedings into the billing envelope to solicit funds to improve its participation, the Commission is letting that entity, whoever it may be, as long as it satisfies certain criteria, speak and advocate its own position as best it can in order to try and raise money.
Lewis F. Powell, Jr.: So, content-neutral is not a requirement?
Mark Fogelman: No, I don't think it is precise content-neutrality in the sense that you are using the term would be required to sustain this regulation.
Lewis F. Powell, Jr.: Some Justice asked you, is there any limiting principle... Assume for example that a cause organization that wanted space urged the customers of PG&E to vote for people like the legislature who would support public ownership of all utilities. Would that be neutral?
Mark Fogelman: Well, to the extent... Would it be neutral?
Lewis F. Powell, Jr.: Obviously not.
Mark Fogelman: No, it is not a neutral message. It is an advocacy position, but permitting--
Lewis F. Powell, Jr.: Would it be lawful?
Mark Fogelman: --I would believe the Commission would have the power, if it faced the question, to permit CAUS into the billing envelope because the Commission is doing this to provide the consumers with a diversity of viewpoints, not merely only the views of PG&E. It is also doing it to increase the ability of different viewpoints to participate in Commission proceedings.
Lewis F. Powell, Jr.: Why would that be contrary to Miami Herald?
Mark Fogelman: It is contrary to Miami Herald for several reasons. First--
Lewis F. Powell, Jr.: Why wouldn't it be contrary to Miami Herald if the Commission permitted the sort of insert that I described advocating public ownership of utilities, absolutely contrary to the basic perception of private utilities? Miami Herald did not want to be a forum for the views contrary to its own.
Mark Fogelman: --Well, I think... First of all, that case is not, of course, involved here. But--
Speaker: You think it is not involved?
Mark Fogelman: --I think it would not be... The reason why Miami Herald came out the way it did is basically two reasons. The first was that there was a penalty on what the newspaper said and that is not involved in this case. The second reason is that there was an intrusion on editorial discretion. But, I don't think the cases of this Court hold that you can never, never compel a newspaper to carry the speech of third parties. In fact, there is a Lorain Journal case--
Warren E. Burger: Did we not sustain the right of Columbia Broadcasting System to reject certain paid ads because they said it wasn't necessary to get the information out, Democratic Committee against Columbia Broadcasting?
Mark Fogelman: --Yes, you did. But, you also, in the CBS verus FCC case, permitted candidates for public office to have a limited right of access to get their--
Warren E. Burger: That was under the fairness doctrine.
Mark Fogelman: --Right, right. And, in a sense, what the Commission has done here... The previous discussion of Red Lion is to do something similar to a fairness doctrine to provide fair access.
William H. Rehnquist: It seems to me you are going a lot further than you have to to win your case here when you start saying that, yes, the Commission, of course, could have stuff advocating the public ownership of utilities. I thought the Commission allowed TURN to come in because TURN is concerned with Commission rate-making proceedings And, I take it there is no proceeding presently before the Commission about whether PG&E should be publicly owned. So, you really don't have to get to that, do you?
Mark Fogelman: You are absolutely right, Your Honor.
Sandra Day O'Connor: But, the principles are the same, of course.
Mark Fogelman: The principles are the same.
Thurgood Marshall: You mentioned the word "neutral". Do you know anything today in the public view that is neutral?
Mark Fogelman: Well, I suppose any position you take is likely to have some repercussions.
Thurgood Marshall: Well, would your Commission consider the use of an ad during the abolishment of your Commission? [Laughter]
Mark Fogelman: I think--
Speaker: Or counsel.
Mark Fogelman: --I think the Commission, Your Honor, is concerned with this program. There are many hypotheticals that can be raised. But, the point is the Commission has taken a very limited step here and basically PG&E--
Speaker: Why?
Mark Fogelman: --It has taken a step to try--
Thurgood Marshall: Why is the state taking this step?
Mark Fogelman: --It is taking this step to try to improve consumer participation in its own proceedings so it can get a fuller record and make wiser decisions which is--
John Paul Stevens: You suggest that a tornado is different because there was a cost to a newspaper. It would chill its own speech if it had to print replies.
Mark Fogelman: --That is right.
John Paul Stevens: Is it perfectly clear that if the utility here had never initiated a program of using this space for its own propaganda, that this order would have ever come about?
Mark Fogelman: I think it is fair to say that the Commission only recently discovered the existence of the extra space, this income-generating asset. And, I think at that point it had a problem. What do you do with it that utilizes it in the public interest?
John Paul Stevens: Putting my question just in a little different form, do you think the case would be precisely the same in terms of its constitutional issues if the utility had never made use of the space for a similar purpose?
Mark Fogelman: I think it would be quite similar, yes.
Sandra Day O'Connor: Well, could the Commission order that any unused offices in PG&E buildings be turned over to TURN for its office space and that sort of thing?
Mark Fogelman: Well, the Commission has an obligation to see that the utility operates in an efficient manner and to the extent that unused offices are not being used, the Commission can make PG&E rent them out presumably. But, that is not this case. If I may address some critical points here, I think there are five critical aspects of this decision that preclude the notion that there is a violation of the First Amendment. First, there is no limitation on the continuing availability of Progress in the envelope. PG&E can still say whatever it wants, as much as it wants, in the billing envelope. It only is possibly losing a subsidy of its speech to which it is not constitutionally entitled. Second, each speaker is to determine its own content and TURN's solicitation messages will not be looked at insofar as they are consistent with the program. Third, TURN's is required to identify itself as the source of the message and to indicate that neither PG&E nor the Commission have reviewed the message. This effectively means that there will be no confusion and this Court can be sure that if there is confusion the Commission will immediately take steps to rectify that.
John Paul Stevens: To that extent, TURN is not free just to say what it wants to say. So, two and three are somewhat contradictory.
Mark Fogelman: I beg your pardon?
John Paul Stevens: I say to that extent TURN is not absolutely free to use the space exactly as it chooses.
Mark Fogelman: You are right. The disclosure--
John Paul Stevens: Two and three are inconsistent with one another.
Mark Fogelman: --That is right. We are making TURN carry that speech. Fourth, there is no cost to PG&E for the inclusion of TURN's message, not one cent. So, the utility is really not being disabled in any sense or being required to pay any penalty.
Byron R. White: Unless it wants to send out its material that it now can't... that under this order it can't send out. If it is going to have to do that, it will have to pay for it.
Mark Fogelman: It will have to pay for it, but it is still in the same billing envelope. The only thing is it may be moved from the subsidized space to the unsubsidized space.
Byron R. White: I know, but it would cost them money.
Mark Fogelman: And, finally, and this really ties to the program, the grant of access to the ultimate purpose, the money which TURN receives from its solicitation message must be used for participation in Commission proceedings involving PG&E. Basically, I think an expansive reading of the three cases, the Barnett, Wooley, and Tornillo cases are being asserted before this Court. The Court is being asked to expand negative speech rights to a set of facts that they have never reached in the past. And, I think it is fair to say that the Commission's decision is reasonable regulation. It has been done in other states. California is not alone in this. It is an experimental program, but I submit to the Court that there is no infringement of any First Amendment rights here. And, if there is an infringement, it is so minimal, the intrusion is so minimal and the state interests are sufficiently significant to warrant that intrusion.
Sandra Day O'Connor: Have the other states that have done this taken the action that the California Commission did in declaring the unused or extra space to be rate payers' property?
Mark Fogelman: No, Your Honor, they have not.
Byron R. White: They just used their general regulatory power?
Mark Fogelman: Yes, they have.
Warren E. Burger: Do you have anything further, Mr. Harris?
Robert L. Harris: Mr. Chief Justice, and may it please the Court: I have just a few notes. In regards to the ownership of the extra space, we would disagree, as we did in our reply brief to their motion to dismiss, that that is foreclosed. And, we quoted from the California Supreme Court itself at 25 Cal. 3rd 891, where the Court explained that "when the issue is a question of law rather than a fact, the prior determination of. " --and I am adding in the word Commission... "is not conclusive either if injustice would result or if the public interest requires that litigation not be foreclosed. " As we indicated earlier, if the California Supreme Court or any other California court decided that this was critical in any other proceeding, it could be relitigated.
Byron R. White: You wouldn't ask us though here to second guess a state court on what is the property interest?
Robert L. Harris: No, no. I just wanted to clear up the record in terms of whether or not this is forever foreclosed.
Speaker: All right.
Robert L. Harris: We certainly don't believe it is. First of all, we believe it is contrary to what this Court said in New York Public Service Commission versus Public Board; that when rate payers pay for service, they do not pay for the property used to deliver that service.
Byron R. White: We judge the case on the basis of the property... that that unused space is the property of the consumer. That is the way the case gets here, isn't it?
Robert L. Harris: No.
Byron R. White: Why? We can't second guess the state court on that.
Robert L. Harris: No. We brought the issue here, Your Honor, on the basis that it infringed upon our First Amendment rights--
Byron R. White: Even if the property does belong to the--
Robert L. Harris: --Even if that ephemeral concept of extra space, which may be there one month, may not be there the next month, it is the putting of that message in the billing envelope which belongs to PG&E that is at issue.
Sandra Day O'Connor: --Can PG&E just put their bills on heavier paper and solve this problem? [Laughter]
Robert L. Harris: The Commission cautioned us not to do that, Your Honor, and we would try to be fair. [Laughter] But, on the other hand, it is quite possible for TURN to use heavy paper for its message and preclude us from putting in Progress. I think what this case really points out is what this Court said in Cohen versus California; that it is the purpose of the First Amendment to remove government from picking and choosing and from deciding who should speak, when they should speak, etcetera. I think it is even more important here, because here the State of California has at its disposal many other ways to resolve this problem and it never has to become involved in picking this group or picking that group. If the problem that is bothering California that there is some extra space there where, as it said, it is not recouping the economic value of that space, then let it do what it always does in a rate-making proceeding, assess a value. So, I think that this case clearly comes down in terms of saying that here is a case where government really has gotten itself involved in a situation that it will be impossible to retrieve itself from, picking and choosing speakers. Thank you very much, Your Honor.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The honorable Court is now adjourned until tomorrow at 10 o'clock.