Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 86 C 1495 -- John A. Nordberg, Judge.
Before BAUER, Chief Judge, and WOOD, Circuit Judge, and GRANT, Senior District Judge.*fn*
The question presented is whether Sections 9 and 10 of the Illinois Citizens Utility Board Act ("CUB ACT"), Ill. Rev. Stat. ch. 111 2/3, § § 909, 910 (1986), violates plaintiffs' First Amendment right of freedom of speech under the United States Constitution. The district court granted plaintiffs' motion for summary judgment based on the Supreme Court's holding in Pacific Gas & Electric Co. v. Public Utilities Comm'n, 475 U.S. 1, 106 S. Ct. 903, 89 L. Ed. 2d 1 (1986), that a forced access rule that penalizes the expression of particular points of view and forces the plaintiffs to alter their speech violates plaintiffs' First Amendment right to free speech. We affirm.
The CUB Act was enacted by the Illinois General Assembly on December 1, 1983. Only one of CUB's powers or duties is at issue here. Section 9 of the Act compels the utilities, under threat of criminal prosecution, imposed by Section 10 of the Act, to place messages prepared by CUB in or on the periodic billings that the plaintiffs*fn1 mail to their customers. Section 9 of the Act requires CUB to furnish its message to the utilities not less than 21 days in advance of their next periodic customer billing. Section 9 specifies the permissible size and weight of any CUB message, and requires that "any public utility furnished with an enclosure or statement . . . [by CUB] shall print or otherwise include or enclose such enclosure or statement within, upon or attached to the next periodic customer billing which the public utility mails or delivers to any consumer." Ill. Rev. Stat. 1985, ch. 111 2/3 § 902(2)(a). The utilities are required to include as many as four CUB messages annually in or on their periodic billings. Id., § 909(2)(b). Section 9(a)(c) of the Act describes the permissible content of CUB messages. Section 9(1)(c) provides:
"An enclosure furnished by [CUB] . . . shall be limited to informing the reader of the purpose, nature and activities of [CUB] as set forth in this Act and informing the reader that the utility consumer billed may become a member in [CUB], maintain membership in [CUB] and contribute money to [CUB] directly. The enclosure may not have the character of a bill, statement or account. Information may include a membership application form."
The CUB Act became effective December 1, 1983, and CUB's first distribution of enclosures in utility billings occurred in July, 1984. From July, 1984 to July, 1985, CUB caused 6 million post card messages to be included with utility bills. Without exception, these enclosures have advocated positions contrary to those of the utilities.*fn2 Section 9(3) provides that the Illinois Commerce Commission "shall approve the enclosure or statement if it determines that the enclosure (a) is not false or misleading and (b) satisfies the requirements of this Act." The Commission has approved, without substantive change, every proposed enclosure that CUB has submitted since the Act was passed.
On appeal, the utilities argue that sections 9 and 10 of the Act are unconstitutional because its provisions: (1) force plaintiffs to disseminate views with which they disagree; (2) burden plaintiffs' expression by compelling access for a group that disagrees with plaintiffs' views; and (3) obligates the plaintiffs to sue their property as a vehicle for spreading antagonistic messages. The district court granted the utilities motion for summary judgment finding that CUB's access order is indistinguishable from the order struck down in Pacific Gas.
The Court's Holding in Pacific Gas
In Pacific Gas, the Supreme Court struck down an order of the California Public Utilities Commission ("CPUC") requiring Pacific Gas and Electric Company ("Pacific Gas") to include in its billing envelopes messages from Toward Utility rate Normalization ("TURN"), a group representing the interests of residential utility customers. TURN intervened in a ratemaking session before the CPUC in 1980. TURN sought to prevent Pacific Gas from continuing to use its billing envelopes to distribute political editorials in its monthly newsletter, "Progress." TURN argued that utility consumers should not bear the expense of Pacific Gas' political speech. The CPUC determined that the "extra space" remaining in Pacific Gas' billing envelopes after inclusion of the bill and any required legal notices (but excluding "progress"), up to such total weight as would not result in additional postage cost, belongs to the ratepayers. The CPUC then apportioned the "Extra space" to TURN to sue four times a year for the next two years. The Supreme Court found that compelled access to private property, like that ordered by the CPUC, impermissibly burdens First Amendment rights in that it "penalizes the expression of particular points of view and forces speakers to alter their speech to conform with an agenda they do not set." Pacific Gas & Electric Co. v. Public Utilities Comm'n, 106 S. Ct. at 908. The Court reasoned that a forced access rule which indirectly restricts speech to certain topics or views, or forces a speaker to respond to the views of others, is unconstitutional. In Pacific Gas, the Court held that access to the envelopes is not content-neutral. According to the Court:
The order does not simply award access to the public at large; rather it discriminates on the basis of the viewpoint of the selected speakers. Two of the acknowledged purposes of the access order are to offer the public a greater variety of views in appellant's billing envelope, and to assist groups (such as TURN) that challenge appellant in the Commission's ratemaking proceedings in raising funds. . . . The variety of the views that the Commission seeks to foster cannot be obtained by including speakers whose speech agrees with appellant's. . . . Access is limited to persons or groups -- such as TURN -- who disagree with appellant's views as expressed in Progress and who oppose appellant in Commission proceedings.
Id. at 106 S. Ct. at 910. Therefore, the Court concluded that because access to the envelope is not content-neutral, Pacific Gas "'might well conclude' that, under these circumstances, 'the safe course is to avoid controversy,' thereby reducing the free flow of information and ideas that the First Amendment seeks to promote." Id. at 106 S. Ct. at 910 ...