Pacific Gas & Electric Company (PG&E) is a utility company that provides electricity and natural gas in California. As a company regulated by the Public Utilities Commission of California (PUC), PG&E published a newsletter called the « Progress » that was sent to its subscribers. The newsletter contained information about the company’s services as well as positions on various political and social issues. The PUC ordered PG&E to allow a consumer advocacy group called TURN, to include its own messages in the unused space in the newsletter. The PUC’s goal was to ensure diversity of opinion and give subscribers a platform to read opposing viewpoints. PG&E challenged this requirement, arguing that it violated its constitutional right not to be compelled to express or disseminate ideas of which it disagreed.
In this case, Pacific Gas & Electric Co. v. Public Utilities Commission of California (1986), the United States Supreme Court considered whether a private company could be compelled by a public authority to disseminate a message that it rejected. At the heart of the dispute was a fundamental question: how far can the state go in its regulation without infringing on constitutional freedoms, in particular freedom of expression protected by the First Amendment? In other words, to what extent can a private actor be compelled by a public entity to transmit messages contrary to its own beliefs?
The Supreme Court, in a 5 to 3 opinions led by Judge Powell Jr, ruled in favor of PG&E. The majority concluded that the PUC’s requirement violated the First Amendment because it forced PG&E to transmit messages it did not want to broadcast, and that the same Amendment protects not only the right to speak, but also the right not to speak or be associated with unwanted speech.
This decision, PG&E case highlights several key points, points that still resonate today, notably through Moody v. NetChoice (2024).
First, the prohibition on compelled speech. The Supreme Court ruled that the state cannot force a private company to express a message against its will. As Judge Powell Jr noted in the majority opinion, for corporations as for individuals, the choice to speak includes within it the choice of what not to say. This principle has been interpreted as an extension of the right to free speech, which also includes the right not to be compelled to associate oneself with speech that one disapproves of.
Next, there was the protection of intellectual autonomy. Judge Powell Jr also noted that Freedom of speech also protects the freedom not to be compelled to convey a message that is at odds with the entity’s own beliefs. This principle reinforced the notion that corporations must have the right to choose how they express themselves, an issue that has arisen in many cases regulating commercial speech.
Ultimately, it ended with a narrow reading of public interest justifications. Although the PUC invoked a public interest to justify its interference with private business speech, the Court held that that interest could not override constitutional rights, particularly freedom of speech.
The PG&E decision thus established fundamental principles regarding the protection of freedom of expression, in particular that freedom of expression includes not only the right to speak, but also the right to not speak. In this light, Moody case is part of a continuing reflection on the limits of state intervention in private speech, albeit in a different context.
In Moody case, Florida and Texas introduced laws in 2021 that restrict the ability of large social media companies, such as Facebook, Twitter, and YouTube, to moderate content posted by their users. Both states argued that their laws were necessary to protect free speech, but they were immediately challenged by groups representing big tech companies, arguing that the laws violated the First Amendment by forcing companies to accept and distribute messages they deemed harmful or undesirable.
The heart of Moody case, then, lies in the same question as PG&E case: How far can a private company go in moderating speech that goes against its views, but is nonetheless posted on its platform?
The Supreme Court, by a unanimous decision and with a majority opinion written by Judge Kagan, emphasized the importance of protecting the free speech of private entities, particularly when they exercise some form of editorial control over the content they allow or prohibit. She argued that the Florida and Texas laws, while purporting to protect the free speech of platform users, actually imposed a constraint on the speech of the companies themselves by forcing them to broadcast content they did not approve of.
A key argument made by Justice Kagan was that the First Amendment protects not only the right to speak, but also the right to « not speak ». She reaffirmed the idea that private entities, including social media companies, should have the right to decide what content they agree to broadcast. Moody v. NetChoice (Kagan J.) p. 4. recalled the principle established in the PG&E case, where the Court held that the government cannot force a company to transmit a message it does not approve of. This principle was crucial to Moody’s analysis, because it allowed Justice Kagan to argue that the Florida and Texas laws, by forcing platforms to accept certain types of content, violated the free speech of the companies in question. Judge Barrett concurring (p. 41) « a speaker’s right to decide what not to say ».
In her analysis, Kagan also addressed the public interest justifications put forward by states, namely combating misinformation and protecting users’ freedom of expression. She reasoned that, while these concerns are legitimate, they do not justify such intrusive intervention in the management of private companies’ content.
Thus, to conclude, in 2024, as social media platforms play a central role in public discourse, the question of how far the state can intervene in the management of that speech becomes increasingly complex. The First Amendment is no longer just a shield against government censorship, but a principle of protection against any form of coercion on the editorial freedom of private companies. Thus, the Moody case is part of a legal dynamic where the balance between the regulation of digital content, public interest concerns and the preservation of fundamental freedoms, including freedom of expression, remains a major challenge. Accordingly, Moody case highlights an aspect of the First Amendment, namely that freedom of expression goes beyond the right to express oneself; it also includes the right not to be compelled to disseminate a message, a principle brought out by PG&E, also showing how this precedent is still used today.
Team Moody