Public Utilities Commission v. Pollak
72 S. Ct. 813, 1952 U.S. LEXIS 2061, 343 U.S. 451 (1952)
Rule of Law:
The U.S. Constitution does not prohibit a public utility operating streetcars and buses from broadcasting radio programs, including music and commercial announcements, to its passengers, where a regulatory commission has found such service to be consistent with public convenience, comfort, and safety, and a substantial majority of passengers do not object.
Facts:
- Capital Transit Company, a privately owned public utility, operates an extensive street railway and bus system in the District of Columbia under a franchise from Congress.
- Washington Transit Radio, Inc. (Radio) is a privately owned corporation also doing business in the District of Columbia.
- In March 1948, Capital Transit began experimenting with "music as you ride" radio programs, received and amplified through loudspeakers, in a streetcar and a bus.
- Capital Transit granted Radio the exclusive right to install, maintain, repair, and use radio reception equipment in its vehicles and facilities.
- Radio secured the services of Station WWDC-FM for programs, which generally consisted of 90% music, 5% news/weather/civic interest, and 5% commercial advertising (15-30 second statements, occupying about three minutes per hour).
- Radio agreed to pay Capital Transit a monthly fee per radio installation, plus additional compensation dependent upon the station's receipts from commercial advertising.
- In February 1949, with over 20 installations, the radio service went into regular operation, expanding to 212 installations by late 1949.
- A public opinion survey conducted by Edward G. Doody & Company indicated that 93.4% of interviewed passengers were not opposed to the radio service, with only 3% firmly opposed.
Procedural Posture:
- In July 1949, the Public Utilities Commission of the District of Columbia (Commission) initiated an investigation on its own motion to determine if the Capital Transit Company's radio service was "consistent with public convenience, comfort and safety."
- Washington Transit Radio, Inc. was permitted to intervene in the Commission's investigation.
- Pollak and Martin, as protesting Capital Transit passengers, also intervened in the Commission's investigation.
- The Commission concluded that the installation and use of radios was "not inconsistent with public convenience, comfort, and safety" and dismissed its investigation.
- The Commission denied reconsideration of its order.
- Pollak and Martin appealed the Commission's order to the United States District Court for the District of Columbia.
- John O’Dea (People’s Counsel), Capital Transit Company, and Washington Transit Radio, Inc. were granted leave to intervene in the District Court appeal.
- The District Court dismissed the appeal.
- Pollak and Martin appealed the District Court's judgment to the Court of Appeals for the District of Columbia Circuit, with Capital Transit, Radio, and the Commission serving as appellees.
- The Court of Appeals partially reversed the District Court's judgment, instructing it to vacate the Commission’s order, finding that the broadcasts deprived objecting passengers of liberty without due process of law (specifically applying to "commercials" and "announcements").
- The Court of Appeals, sitting en banc, denied a rehearing.
- The Commission, Capital Transit, and Radio petitioned the Supreme Court for certiorari in No. 224.
- Contingent upon the granting of certiorari in No. 224, Pollak and Martin filed a cross-petition for certiorari in No. 295, seeking to prohibit all radio programs, including music alone.
- The Supreme Court granted certiorari in both cases.
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Issue:
Does a street railway company's practice of receiving and amplifying radio programs through loudspeakers in its passenger vehicles, permitted by a public utilities commission, violate the First Amendment's freedom of speech or the Fifth Amendment's Due Process Clause (right to privacy) of objecting passengers?
Opinions:
Majority - Mr. Justice Burton
No, a street railway company's practice of receiving and amplifying radio programs in its vehicles, when permitted by a public utilities commission, does not violate the First or Fifth Amendments. The Court found a "sufficiently close relation between the Federal Government and the radio service" (due to regulatory supervision by a Congressionally authorized agency and the Commission's investigation and dismissal of protests) to make the First and Fifth Amendments applicable. However, regarding the First Amendment, the Court found no evidence that programs substantially interfered with passengers' conversation or constitutionally protected communication rights, nor did it guarantee freedom to listen only to desired points of view. Regarding the Fifth Amendment's due process claim (right to privacy), the Court stated that a passenger's right to privacy in a public conveyance is "substantially limited by the rights of others." Public vehicles are for common use, and their operation involves mutual limitations on conduct. The Court held that the preferences of the majority of passengers and the considered judgment of a federally authorized Public Utilities Commission, based on substantial evidence that the service improved convenience, comfort, and safety, override the objections of a few passengers. The Commission's decision, when not arbitrarily and capriciously exercised, meets due process requirements. The Court cited precedents such as Corrigan v. Buckley and Barron v. The Mayor and City Council of Baltimore for the principle that these amendments restrict only the Federal Government, and Kovacs v. Cooper for the permissible regulation of amplified sounds in public places. The Court explicitly stated it expresses no opinion on the desirability of the programs, only their constitutionality.
Dissenting - Mr. Justice Douglas
Yes, forcing passengers to listen to radio programs in public conveyances violates their Fifth Amendment "liberty," which includes a fundamental right to privacy. Justice Douglas argued that "liberty" in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy, recognizing the "right to be let alone" as the beginning of all freedom, akin to the First Amendment's protections. He characterized the streetcar audience as a "captive audience" because, in a practical sense, many people are "forced to ride" for essential transportation. While acknowledging that some privacy is lost in public places, he contended that this forced listening goes "over and beyond the risks of travel." Justice Douglas warned that allowing government-sanctioned programs, even benign ones, sets a dangerous precedent, as today's cultural program could become tomorrow's political propaganda. He asserted that forcing people to listen to another's ideas provides a powerful weapon to propagandists, and that the right of privacy should include the freedom to choose from competing entertainments, propaganda, and political philosophies.
Concurring - Mr. Justice Black
No, the programs, as currently constituted with music, commercials, news, and civic announcements, do not violate the Due Process Clause of the Fifth Amendment or the First Amendment's freedom of speech. Justice Black concurred that the existing musical programs, including news and commercial announcements, did not violate these constitutional provisions. However, he emphasized that subjecting Capital Transit’s passengers to "the broadcasting of news, public speeches, views, or propaganda of any kind and by any means would violate the First Amendment." He explicitly stated his dissent to the extent that the Court's holding might imply the contrary.
Analysis:
This case is significant for defining the limits of individual liberty, specifically the right to privacy and free speech, in public spaces compared to private ones. It establishes that while individuals retain certain constitutional rights in public, these rights are subject to "reasonable limitations in relation to the rights of others" and the collective judgment of regulatory bodies. The decision highlights the delicate balancing act between individual autonomy and public convenience, especially when a government-regulated entity is involved. It underscores the deferential standard courts apply to regulatory commission findings that are not unreasonable, arbitrary, or capricious. Future cases involving captive audiences in public transportation or other regulated public spaces would likely refer to Pollak for guidance on the scope of First and Fifth Amendment protections.
