OCTOBER TERM, 1991
Syllabus
R. A. V.
v. CITY OF ST. PAUL, MINNESOTA
CERTIORARI TO THE SUPREME COURT OF MINNESOTA No. 90-7675. Argued
December 4, 1991-Decided June 22,1992
After allegedly burning a cross on a black family's lawn,
petitioner R. A. V. was charged under,
inter alia, the St.
Paul, Minnesota, Bias-Motivated Crime Ordinance, which prohibits
the display of a symbol which one knows or has reason to know
"arouses anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender." The trial court dismissed this
charge on the ground that the ordinance was substantially overbroad
and impermissibly content based, but the State Supreme Court
reversed. It rejected the overbreadth claim because the phrase
"arouses anger, alarm or resentment in others" had been construed
in earlier state cases to limit the ordinance's reach to "fighting
words" within the meaning of this Court's decision in
Chaplinsky v.
New Hampshire, 315 U. S. 568, 572, a
category of expression unprotected by the First Amendment. The
court also concluded that the ordinance was not impermissibly
content based because it was narrowly tailored to serve a
compelling governmental interest in protecting the community
against bias-motivated threats to public safety and order.
Held: The ordinance is facially invalid under the First
Amendment.
Pp.381-396.
(a) This Court is bound by the state court's construction of the
ordinance as reaching only expressions constituting "fighting
words." However, R. A. Vo's request that the scope of the
Chaplinsky formulation be modified, thereby invalidating the
ordinance as substantially overbroad, need not be reached, since
the ordinance unconstitutionally prohibits speech on the basis of
the subjects the speech addresses. P.381.
(b) A few limited categories of speech, such as obscenity,
defamation, and fighting words, may be regulated
because of
their constitutionally proscribable content. However, these
categories are not entirely invisible to the Constitution, and
government may not regulate them based on hostility, or favoritism,
towards a nonpros crib able message they contain. Thus the
regulation of "fighting words" may not be based on nonproscribable
content. It may, however, be underinclusive, addressing some
offensive instances and leaving other, equally offensive, ones
alone, so long as the selective proscription is not based on
content, or there is no realistic possibility that regulation of
ideas is afoot. Pp. 382-390.
378
Syllabus
(c) The ordinance, even as narrowly construed by the State
Supreme Court, is facially unconstitutional because it imposes
special prohibitions on those speakers who express views on the
disfavored subjects of "race, color, creed, religion or gender." At
the same time, it permits displays containing abusive invective if
they are not addressed to those topics. Moreover, in its practical
operation the ordinance goes beyond mere content, to actual
viewpoint, discrimination. Displays containing "fighting words"
that do not invoke the disfavored subjects would seemingly be
useable
ad libitum by those arguing in favor of racial,
color, etc., tolerance and equality, but not by their opponents.
St. Paul's desire to communicate to minority groups that it does
not condone the "group hatred" of bias-motivated speech does not
justify selectively silencing speech on the basis of its content.
Pp. 391-393.
(d) The content-based discrimination reflected in the ordinance
does not rest upon the very reasons why the particular class of
speech at issue is pros crib able, it is not aimed only at the
"secondary effects" of speech within the meaning of
Renton
v.
Playtime Theatres, Inc., 475 U. S. 41, and it is not for
any other reason the sort that does not threaten censorship of
ideas. In addition, the ordinance's content discrimination is not
justified on the ground that the ordinance is narrowly tailored to
serve a compelling state interest in ensuring the basic human
rights of groups historically discriminated against, since an
ordinance not limited to the favored topics would have precisely
the same beneficial effect. Pp. 393-396.
464 N. W. 2d 507, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and KENNEDY, SOUTER, and THOMAS, JJ., joined.
WHITE, J., filed an opinion concurring in the judgment, in which
BLACKMUN and O'CONNOR, JJ., joined, and in which STEVENS, J.,
joined except as to Part I-A,
post, p. 397. BLACKMUN, J.,
filed an opinion concurring in the judgment,
post, p. 415.
STEVENS, J., filed an opinion concurring in the judgment, in Part I
of which WHITE and BLACKMUN, JJ., joined,
post, p. 416.
Edward J. Cleary argued the cause for
petitioner. With him on the briefs was
Michael F.
Cromett.
Tom Foley argued the cause for respondent. With him on
the brief was
Steven C.
DeCoster. *
*Briefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union et al. by
Steven R. Shapiro,
John A. Powell, and
Mark R. Anfinson; for the
Association of American Publishers et al. by
379
JUSTICE SCALIA delivered the opinion of the Court.
In the predawn hours of June 21, 1990, petitioner and several
other teenagers allegedly assembled a crudely made cross by taping
together broken chair legs. They then allegedly burned the cross
inside the fenced yard of a black family that lived across the
street from the house where petitioner was staying. Although this
conduct could have been pun-
Bruce
J. Ennis; and for the Center for Individual Rights
by Gary B. Born and Michael P. McDonald.
Briefs of
amici curiae urging affirmance were filed for
the State of Minnesota et al. by
Hubert H. Humphrey III,
Attorney General of Minnesota, and
Richard S.
Slowes,
Assistant Attorney General,
Jimmy Evans, Attorney General of
Alabama,
Grant Woods, Attorney General of Arizona,
Richard Blumenthal, Attorney General of Connecticut, and
John J. Kelly, Chief State's Attorney of
Connecticut,
Larry EchoHawk, Attorney General of Idaho,
Roland W Burris, Attorney General of Illinois,
Robert T.
Stephan, Attorney General of Kansas,
J. Joseph
Curran, Jr., Attorney General of Maryland,
Scott
Harshbarger, Attorney General of Massachusetts,
Frank
J. Kelley, Attorney General of Michigan,
Robert J. Del Tufo, Attorney General of New
Jersey,
Lee I. Fisher, Attorney General of Ohio,
Susan B.
Loving, Attorney General of Oklahoma,
T. Travis Medlock,
Attorney General of South Carolina,
Charles W Burson,
Attorney General of Tennessee,
Mary Sue Terry, Attorney
General of Virginia, and
Paul Van Dam, Attorney General of
Utah; for the Anti-Defamation League of B'nai B'rith by
Allen I.
Saeks, Jeffrey P. Sinensky, Steven M. Freeman, and
Michael
Lieberman; for the Asian American Legal Defense and Education
Fund et al. by
Angelo N. Ancheta; for the Center for
Democratic Renewal et al. by
Frank E. Deale; for the
Criminal Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson; for the League of
Minnesota Cities et al. by
Carla J. Heyl,
Robert J. Alfton, and
Jerome J.
Segal; for the National Association for the Advancement of
Colored People et al. by
Ronald D. Maines, Dennis C.
Hayes, Willie Abrams, and
Kemp R. Harshman; for the
National Black Women's Health Project by
Catharine A.
MacKinnon and
Burke Marshall; for the National Institute
of Municipal Law Officers et al. by
Richard Ruda, Michael
J. Wahoske, and
Mark B. Rotenberg; and for
People for the American Way by
Richard S.
Hoffman,
Kevin J. Hasson, and
Elliot M.
Mincberg.
Charles R. Sheppard filed a brief for the Patriot's
Defense Foundation, Inc., as
amicus curiae.
380
ished under any of a number of laws,l one of the two provisions
under which respondent city of St. Paul chose to charge petitioner
(then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance,
St. Paul, Minn., Legis. Code § 292.02 (1990), which provides:
"Whoever places on public or private property a symbol, object,
appellation, characterization or graffiti, including, but not
limited to, a burning cross or Nazi swastika, which one knows or
has reasonable grounds to know arouses anger, alarm or resentment
in others on the basis of race, color, creed, religion or gender
commits disorderly conduct and shall be guilty of a
misdemeanor."
Petitioner moved to dismiss this count on the ground that the
St. Paul ordinance was substantially overbroad and impermissibly
content based and therefore facially invalid under the First
Amendment.2 The trial court granted this motion, but the Minnesota
Supreme Court reversed. That court rejected petitioner's
overbreadth claim because, as construed in prior Minnesota cases,
see,
e. g., In re Welfare of S.
L.
J., 263 N. W. 2d 412 (Minn. 1978), the modifying phrase
"arouses anger, alarm or resentment in others" limited the reach of
the ordinance to conduct that amounts to "fighting words," i.
e., "conduct that itself inflicts injury or tends to incite
immediate violence ... ,"
In re Welfare of R. A. 17:,
464 N. W. 2d 507, 510 (Minn. 1991) (citing
Chaplin-
1 The conduct might have violated Minnesota statutes carrying
significant penalties. See,
e. g., Minn. Stat. §
609.713(1) (1987) (providing for up to five years in prison for
terroristic threats); § 609.563 (arson) (providing for up to five
years and a $10,000 fine, depending on the value of the property
intended to be damaged); § 609.595 (Supp. 1992) (criminal damage to
property) (providing for up to one year and a $3,000 fine,
depending upon the extent of the damage to the property).
2 Petitioner has also been charged, in Count I of the
delinquency petition, with a violation of Minn. Stat. § 609.2231(4)
(Supp. 1990) (racially motivated assaults). Petitioner did not
challenge this count.
381
sky v.
New Hampshire, 315 U. S. 568, 572
(1942)), and therefore the ordinance reached only expression "that
the first amendment does not protect," 464 N. W. 2d, at 511. The
court also concluded that the ordinance was not impermissibly
content based because, in its view, "the ordinance is a narrowly
tailored means toward accomplishing the compelling governmental
interest in protecting the community against bias-motivated threats
to public safety and order."
Ibid. We granted certiorari,
501 U. S. 1204 (1991).
I
In construing the St. Paul ordinance, we are bound by the
construction given to it by the Minnesota court.
Posadas de
Puerto Rico Associates v.
Tourism Co. of Puerto Rico,
478 U. S. 328,
339 (1986);
New York v.
Ferber, 458 U. S. 747, 769, n. 24
(1982);
Terminiello v.
Chicago, 337 U. S. 1, 4 (1949).
Accordingly, we accept the Minnesota Supreme Court's authoritative
statement that the ordinance reaches only those expressions that
constitute "fighting words" within the meaning of
Chaplinsky. 464 N. W. 2d, at 510-511. Petitioner and his
amici urge us to modify the scope of the
Chaplinsky
formulation, thereby invalidating the ordinance as "substantially
overbroad,"
Broadrick v.
Oklahoma, 413 U. S. 601, 610
(1973). We find it unnecessary to consider this issue. Assuming,
arguendo, that all of the expression reached by the
ordinance is proscribable under the "fighting words" doctrine, we
nonetheless conclude that the ordinance is facially
unconstitutional in that it prohibits otherwise permitted speech
solely on the basis of the subjects the speech addresses.3
3 Contrary to JUSTICE WHITE'S suggestion,
post, at
397-398, n. 1, petitioner's claim is "fairly included" within the
questions presented in the petition for certiorari, see this
Court's Rule 14.1(a). It was clear from the petition and from
petitioner's other filings in this Court (and in the courts below)
that his assertion that the St. Paul ordinance "violat[es]
overbreadth ... principles of the First Amendment," Pet. for Cert.
i, was
not
382
The First Amendment generally prevents government from
proscribing speech, see,
e. g., Cantwell v.
Connecticut, 310 U. S. 296, 309-311
(1940), or even expressive conduct, see,
e. g., Texas v.
Johnson, 491
U. S. 397, 406 (1989), because of disapproval of the ideas
expressed. Content-based regulations are presumptively invalid.
Simon &
Schuster, Inc. v.
Members of N.
Y. State Crime Victims Bd., 502 U. S. 105, 115
(1991);
id., at 124 (KENNEDY, J., concurring in judgment);
Consolidated Edison Co. of N.
Y. v.
Public Servo
Comm'n of N.
Y., 447 U. S. 530, 536
(1980);
Police Dept. of Chicago v.
Mosley, 408 U. S. 92, 95 (1972).
From 1791 to the present, however, our society, like other free but
civilized societies, has permitted restrictions upon the content of
speech in a
just a technical "overbreadth" claim-i.
e., a claim that
the ordinance violated the rights of too many third parties-but
included the contention that the ordinance was "overbroad" in the
sense of restricting more speech than the Constitution permits,
even in its application to him, because it is content based. An
important component of petitioner's argument is, and has been all
along, that narrowly construing the ordinance to cover only
"fighting words" cannot cure this fundamental defect.
Id.,
at 12, 14, 1516. In his briefs in this Court, petitioner argued
that a narrowing construction was ineffective because (1) its
boundaries were vague, Brief for Petitioner 26, and because (2)
denominating particular expression a "fighting word" because of the
impact of its ideological content upon the audience is inconsistent
with the First Amendment, Reply Brief for Petitioner
5; id.,
at 13 ("[The ordinance] is overbroad,
viewpoint
discriminatory and vague as 'narrowly construed''') (emphasis
added). At oral argument, counsel for petitioner reiterated this
second point: "It is ... one of my positions, that in [punishing
only some fighting words and not others], even though it is a
subcategory, technically, of unprotected conduct, [the ordinance]
still is picking out an opinion, a disfavored message, and making
that clear through the State." Tr. of Oral Arg. 8. In resting our
judgment upon this contention, we have not departed from our
criteria of what is "fairly included" within the petition. See
Arkansas Electric Cooperative Corp. V.
Arkansas Pub.
Servo Comm'n, 461
U. S. 375, 382, n. 6 (1983);
Brown V.
Socialist
Workers '74
Campaign Comm., 459 U. S. 87, 94, n. 9
(1982); Eddings V.
Oklahoma, 455 U. S. 104, 113, n. 9
(1982); see generally R. Stern, E. Gressman, & S. Shapiro,
Supreme Court Practice 361 (6th ed.1986).
383
few limited areas, which are "of such slight social value as a
step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality."
Chaplinsky, supra, at 572. We have recognized that "the
freedom of speech" referred to by the First Amendment does not
include a freedom to disregard these traditional limitations. See,
e. g., Roth v.
United States, 354 U. S. 476 (1957)
(obscenity);
Beauharnais v.
Illinois, 343 U. S. 250 (1952)
(defamation);
Chaplinsky v.
New Hampshire, supra ("
'fighting' words"); see generally
Simon &
Schuster,
supra, at 124 (KENNEDY, J., concurring in judgment). Our
decisions since the 1960's have narrowed the scope of the
traditional categorical exceptions for defamation, see
New York
Times Co. v.
Sullivan, 376 U. S. 254 (1964);
Gertz v.
Robert Welch, Inc., 418 U. S. 323 (1974); see
generally
Milkovich v.
Lorain Journal Co., 497 U. S. 1, 13-17 (1990),
and for obscenity, see
Miller v.
California, 413 U. S. 15 (1973), but a
limited categorical approach has remained an important part of our
First Amendment jurisprudence.
We have sometimes said that these categories of expression are
"not within the area of constitutionally protected speech,"
Roth, supra, at 483;
Beauharnais, supra, at 266;
Chap linsky, supra, at 571-572, or that the "protection of
the First Amendment does not extend" to them,
Bose Corp. v.
Consumers Union of United States, Inc., 466 U. S. 485, 504
(1984);
Sable Communications of Cal., Inc. v.
FCC,
492 U. S. 115,
124 (1989). Such statements must be taken in context, however, and
are no more literally true than is the occasionally repeated
shorthand characterizing obscenity "as not being speech at all,"
Sunstein, Pornography and the First Amendment, 1986 Duke L. J. 589,
615, n. 46. What they mean is that these areas of speech can,
consistently with the First Amendment, be regulated
because of
their constitutionally proscribable content (obscenity,
defamation, etc.)not that they are categories of speech entirely
invisible to the Constitution, so that they may be made the
vehicles for
384
content discrimination unrelated to their distinctively
proscribable content. Thus, the government may proscribe libel; but
it may not make the further content discrimination of proscribing
only libel critical of the government. We recently
acknowledged this distinction in
Ferber, 458 U. S., at 763,
where, in upholding New York's child pornography law, we expressly
recognized that there was no "question here of censoring a
particular literary theme .... " See also
id., at 775
(O'CONNOR, J., concurring) ("As drafted, New York's statute does
not attempt to suppress the communication of particular
ideas").
Our cases surely do not establish the proposition that the First
Amendment imposes no obstacle whatsoever to regulation of
particular instances of such proscribable expression, so that the
government "may regulate [them] freely,"
post, at 400
(WHITE, J., concurring in judgment). That would mean that a city
council could enact an ordinance prohibiting only those legally
obscene works that contain criticism of the city government or,
indeed, that do not include endorsement of the city government.
Such a simplistic, all-or-nothing-atall approach to First Amendment
protection is at odds with common sense and with our jurisprudence
as wel1.4 It is
4JUSTICE WHITE concedes that a city council cannot prohibit only
those legally obscene works that contain criticism of the city
government,
post, at 406, but asserts that to be the
consequence, not of the First Amendment, but of the Equal
Protection Clause. Such content-based discrimination would not, he
asserts, "be rationally related to a legitimate government
interest."
Ibid. But of course the only
reason that
government interest is not a "legitimate" one is that it violates
the First Amendment. This Court itself has occasionally fused the
First Amendment into the Equal Protection Clause in this fashion,
but at least with the acknowledgment (which JUSTICE WHITE cannot
afford to make) that the First Amendment underlies its analysis.
See
Police Dept. of Chicago v.
Mosley, 408 U. S. 92,
95 (1972) (ordinance prohibiting only nonlabor picketing violated
the Equal Protection Clause because there was no "appropriate
governmental interest" supporting the distinction inasmuch as "the
First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter,
or its content");
Carey v.
385
not true that "fighting words" have at most a
"de
minimis" expressive content,
ibid., or that their
content is
in all respects "worthless and undeserving of
constitutional protection,"
post, at 401; sometimes they are
quite expressive indeed. We have not said that they constitute
"no part of the expression of ideas," but only that they
constitute "no
essential part of any exposition of ideas."
Chap linsky, supra, at 572 (emphasis added).
The proposition that a particular instance of speech can be
proscribable on the basis of one feature
(e. g., obscenity)
but not on the basis of another
(e. g., opposition to the
city government) is commonplace and has found application in many
contexts. We have long held, for example, that nonverbal expressive
activity can be banned because of the action it entails, but not
because of the ideas it expresses-so that burning a flag in
violation of an ordinance against outdoor fires could be
punishable, whereas burning a flag in violation of an ordinance
against dishonoring the flag is not. See
Johnson, 491 U. S.,
at 406-407. See also
Barnes v.
Glen Theatre, Inc.,
501 U. S. 560,
569-570 (1991) (plurality opinion);
id., at 573-574 (SCALIA,
J., concurring in judgment);
id., at 581-582 (SOUTER, J.,
concurring in judgment);
United
Brown, 447
U. S. 455 (1980). See generally
Simon &
Schuster,
Inc. v.
Members of N. Y.
State Crime Victims Bd.,
502 U. S. 105,
124 (1991) (KENNEDY, J., concurring in judgment).
JUSTICE STEVENS seeks to avoid the point by dismissing the
notion of obscene antigovernment speech as "fantastical,"
post, at 418, apparently believing that any reference to
politics prevents a finding of obscenity. Unfortunately for the
purveyors of obscenity, that is obviously false. A shockingly hard
core pornographic movie that contains a model sporting a political
tattoo can be found,
"taken as a whole, [to] lac[k] serious
literary, artistic, political, or scientific value,"
Miller
v.
California, 413 U. S. 15,24 (1973)
(emphasis added). Anyway, it is easy enough to come up with other
illustrations of a content-based restriction upon "unprotected
speech" that is obviously invalid: the antigovernment libel
illustration mentioned earlier, for one. See
supra, at 384.
And of course the concept of racist fighting words is,
unfortunately, anything but a "highly speculative hypothetica[l],"
post, at 419.
386
States v.
O'Brien, 391 U. S. 367, 376-377
(1968). Similarly, we have upheld reasonable "time, place, or
manner" restrictions, but only if they are "justified without
reference to the content of the regulated speech."
Ward v.
Rock Against Racism, 491 U. S. 781, 791 (1989)
(internal quotation marks omitted); see also
Clark v.
Community for Creative NonViolence, 468 U. S. 288, 298 (1984)
(noting that the
O'Brien test differs little from the
standard applied to time, place, or manner restrictions). And just
as the power to proscribe particular speech on the basis of a
noncontent element
(e. g., noise) does not entail the power
to proscribe the same speech on the basis of a content element; so
also, the power to proscribe it on the basis of
one content
element
(e. g., obscenity) does not entail the power to
proscribe it on the basis of
other content elements.
In other words, the exclusion of "fighting words" from the scope
of the First Amendment simply means that, for purposes of that
Amendment, the unprotected features of the words are, despite their
verbal character, essentially a "nonspeech" element of
communication. Fighting words are thus analogous to a noisy sound
truck: Each is, as Justice Frankfurter recognized, a "mode of
speech,"
Niemotko v.
Maryland, 340 U. S. 268, 282 (1951)
(opinion concurring in result); both can be used to convey an idea;
but neither has, in and of itself, a claim upon the First
Amendment. As with the sound truck, however, so also with fighting
words: The government may not regulate use based on hostility-or
favoritism-towards the underlying message expressed. Compare
Frisby v.
Schultz, 487 U. S. 474 (1988)
(upholding, against facial challenge, a content-neutral ban on
targeted residential picketing), with
Carey v.
Brown,
447 U. S. 455
(1980) (invalidating a ban on residential picketing that exempted
labor picketing). 5
5 Although JUSTICE WHITE asserts that our analysis disregards
"established principles of First Amendment law,"
post, at
415, he cites not a single case (and we are aware of none) that
even involved, much less con-
387
The concurrences describe us as setting forth a new First
Amendment principle that prohibition of constitutionally
proscribable speech cannot be "underinclusiv[e],"
post, at
402 (WHITE, J., concurring in judgment)-a First Amendment
"absolutism" whereby "[w]ithin a particular 'proscribable' category
of expression, ... a government must either proscribe
all
speech or no speech at all,"
post, at 419 (STEVENS, J.,
concurring in judgment). That easy target is of the concurrences'
own invention. In our view, the First Amendment imposes not an
"underinclusiveness" limitation but a "content discrimination"
limitation upon a State's prohibition of proscribable speech. There
is no problem whatever, for example, with a State's prohibiting
obscenity (and other forms of proscribable expression) only in
certain media or markets, for although that prohibition would be
"underinclusive," it would not discriminate on the basis of
content. See,
e. g., Sable Communications, 492 U. S., at
124-126 (upholding 47 U. S. C. § 223(b)(1), which prohibits obscene
telephone communications).
Even the prohibition against content discrimination that we
assert the First Amendment requires is not absolute. It applies
differently in the context of proscribable speech than in the area
of fully protected speech. The rationale of the general
prohibition, after all, is that content discrimination "raises the
specter that the Government may effectively drive certain ideas or
viewpoints from the marketplace,"
Simon &
Schuster, 502 U. S., at 116;
Leathers v.
Medlock, 499
U. S. 439, 448 (1991);
FCC v.
League of Women Voters
of Cal., 468 U.
S. 364, 383-384 (1984);
Consolidated Edison Co., 447 U.
S., at 536;
Police Dept. of Chicago v.
Mosley, 408 U.
S.,
sidered and resolved, the issue of content discrimination
through regulation of "unprotected" speech-though we plainly
recognized that as an issue in
New York v.
Ferber, 458 U.
S. 747 (1982). It is of course contrary to all traditions of
our jurisprudence to consider the law on this point conclusively
resolved by broad language in cases where the issue was not
presented or even envisioned.
388
at 95-98. But content discrimination among various instances of
a class of proscribable speech often does not pose this threat.
When the basis for the content discrimination consists entirely
of the very reason the entire class of speech at issue is
proscribable, no significant danger of idea or viewpoint
discrimination exists. Such a reason, having been adjudged neutral
enough to support exclusion of the entire class of speech from
First Amendment protection, is also neutral enough to form the
basis of distinction within the class. To illustrate: A State might
choose to prohibit only that obscenity which is the most patently
offensive
in its pruriencei.
e., that which involves
the most lascivious displays of sexual activity. But it may not
prohibit, for example, only that obscenity which includes offensive
political messages. See
Kucharek v.
Hanaway,
902 F.2d
513, 517 (CA7 1990), cert. denied, 498 U. S. 1041 (1991). And
the Federal Government can criminalize only those threats of
violence that are directed against the President, see 18 U. S. C. §
871-since the reasons why threats of violence are outside the First
Amendment (protecting individuals from the fear of violence, from
the disruption that fear engenders, and from the possibility that
the threatened violence will occur) have special force when applied
to the person of the President. See
Watts v.
United
States, 394 U. S.
705, 707 (1969) (upholding the facial validity of § 871 because
of the "overwhelmin[g] interest in protecting the safety of [the]
Chief Executive and in allowing him to perform his duties without
interference from threats of physical violence"). But the Federal
Government may not criminalize only those threats against the
President that mention his policy on aid to inner cities. And to
take a final example (one mentioned by JUSTICE STEVENS,
post, at 421422), a State may choose to regulate price
advertising in one industry but not in others, because the risk of
fraud (one of the characteristics of commercial speech that
justifies depriving it of full First Amendment protection, see
Virginia
389
State Bd. of Pharmacy v.
Virginia Citizens Consumer
Council, Inc., 425 U. S. 748, 771-772
(1976)) is in its view greater there. Cf.
Morales v.
Trans World Airlines, Inc., 504 U. S. 374 (1992)
(state regulation of airline advertising);
Ohralik v.
Ohio State Bar Assn., 436 U. S. 447 (1978)
(state regulation of lawyer advertising). But a State may not
prohibit only that commercial advertising that depicts men in a
demeaning fashion. See,
e. g., Los Angeles Times,
Aug. 8, 1989, section 4, p. 6, col. 1.
Another valid basis for according differential treatment to even
a content-defined subclass of proscribable speech is that the
subclass happens to be associated with particular "secondary
effects" of the speech, so that the regulation is
"justified
without reference to the content of the ... speech,"
Renton
v.
Playtime Theatres, Inc., 475 U. S. 41, 48 (1986)
(quoting, with emphasis,
Virginia State Bd. of Pharmacy,
supra, at 771); see also
Young v.
American Mini
Theatres, Inc., 427 U. S. 50, 71, n. 34
(1976) (plurality opinion);
id., at 80-82 (Powell, J.,
concurring);
Barnes, 501 U. S., at 586 (SOUTER, J.,
concurring in judgment). A State could, for example, permit all
obscene live performances except those involving minors. Moreover,
since words can in some circumstances violate laws directed not
against speech but against conduct (a law against treason, for
example, is violated by telling the enemy the Nation's defense
secrets), a particular content-based subcategory of a proscribable
class of speech can be swept up incidentally within the reach of a
statute directed at conduct rather than speech. See
id., at
571 (plurality opinion);
id., at 577 (SCALIA, J., concurring
in judgment);
id., at 582 (SOUTER, J., concurring in
judgment);
FTC v.
Superior Court Trial Lawyers Assn.,
493 U. S. 411,
425432 (1990);
O'Brien, 391 U. S., at 376-377. Thus, for
example, sexually derogatory "fighting words," among other words,
may produce a violation of Title VII's general prohibition against
sexual discrimination in employment practices, 42 U. S. C. §
2000e-2; 29 CFR § 1604.11 (1991). See also 18
390
u. S. C. § 242; 42 U. S. C. §§ 1981, 1982. Where the government
does not target conduct on the basis of its expressive content,
acts are not shielded from regulation merely because they express a
discriminatory idea or philosophy.
These bases for distinction refute the proposition that the
selectivity of the restriction is "even arguably 'conditioned upon
the sovereign's agreement with what a speaker may intend to say.'"
Metromedia, Inc. v.
San Diego, 453 U. S. 490, 555 (1981)
(STEVENS, J., dissenting in part) (citation omitted). There may be
other such bases as well. Indeed, to validate such selectivity
(where totally proscribable speech is at issue) it may not even be
necessary to identify any particular "neutral" basis, so long as
the nature of the content discrimination is such that there is no
realistic possibility that official suppression of ideas is afoot.
(We cannot think of any First Amendment interest that would stand
in the way of a State's prohibiting only those obscene motion
pictures with blue-eyed actresses.) Save for that limitation, the
regulation of "fighting words," like the regulation of noisy
speech, may address some offensive instances and leave other,
equally offensive, instances alone. See
Posadas de Puerto
Rico, 478 U. S., at 342-343.6
6 JUSTICE STEVENS cites a string of opinions as supporting his
assertion that "selective regulation of speech based on content" is
not presumptively invalid.
Post, at 421-422. Analysis
reveals, however, that they do not support it. To begin with, three
of them did not command a majority of the Court,
Young v.
American Mini Theatres, Inc., 427 U. S. 50, 63-73 (1976)
(plurality opinion);
FCC v.
Pacifica Foundation,
438 U. S.
726,744748 (1978) (plurality opinion);
Lehman v.
Shaker Heights, 418 U. S. 298 (1974)
(plurality opinion), and two others did not even discuss the First
Amendment,
Morales v.
Trans World Airlines, Inc.,
504 U. S. 374
(1992);
Jacob Siegel Co. v.
FTC, 327 U. S. 608 (1946). In
any event, all that their contents establish is what we readily
concede: that presumptive invalidity does not mean invariable
invalidity, leaving room for such exceptions as reasonable and
viewpoint-neutral content-based discrimination in nonpublie forums,
see
Lehman, supra, at 301-304; see also
Cornelius v.
NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788,806 (1985),
or with respect to certain speech by government employees, see
Broadrick v.
Oklahoma,
391
II
Applying these principles to the St. Paul ordinance, we conclude
that, even as narrowly construed by the Minnesota Supreme Court,
the ordinance is facially unconstitutional. Although the phrase in
the ordinance, "arouses anger, alarm or resentment in others," has
been limited by the Minnesota Supreme Court's construction to reach
only those symbols or displays that amount to "fighting words," the
remaining, unmodified terms make clear that the ordinance applies
only to "fighting words" that insult, or provoke violence, "on the
basis of race, color, creed, religion or gender." Displays
containing abusive invective, no matter how vicious or severe, are
permissible unless they are addressed to one of the specified
disfavored topics. Those who wish to use "fighting words" in
connection with other ideas-to express hostility, for example, on
the basis of political affiliation, union membership, or
homosexuality-are not covered. The First Amendment does not permit
St. Paul to impose special prohibitions on those speakers who
express views on disfavored subjects. See
Simon &
Schuster, 502 U. S., at 116;
Arkansas Writers' Project,
Inc. v.
Ragland, 481 U. S. 221, 229230
(1987).
In its practical operation, moreover, the ordinance goes even
beyond mere content discrimination, to actual viewpoint
discrimination. Displays containing some wordsodious racial
epithets, for example-would be prohibited to proponents of all
views. But "fighting words" that do not themselves invoke race,
color, creed, religion, or genderaspersions upon a person's mother,
for example-would seemingly be usable
ad libitum in the
placards of those arguing
in favor of racial, color, etc.,
tolerance and equality, but could not be used by those speakers'
opponents. One could hold up a sign saying, for example, that all
"anti-
413 U. S. 601
(1973); see also
Civil Service Comm'n v.
Letter Carriers,
413 U. S. 548, 564-567 (1973).
392
Catholic bigots" are misbegotten; but not that all "papists"
are, for that would insult and provoke violence "on the basis of
religion." St. Paul has no such authority to license one side of a
debate to fight freestyle, while requiring the other to follow
Marquis of Queensberry rules.
What we have here, it must be emphasized, is not a prohibition
of fighting words that are directed at certain persons or groups
(which would be
facially valid if it met the requirements of
the Equal Protection Clause); but rather, a prohibition of fighting
words that contain (as the Minnesota Supreme Court repeatedly
emphasized) messages of "biasmotivated" hatred and in particular,
as applied to this case, messages "based on virulent notions of
racial supremacy." 464 N. W. 2d, at 508, 511. One must
wholeheartedly agree with the Minnesota Supreme Court that "[i]t is
the responsibility, even the obligation, of diverse communities to
confront such notions in whatever form they appear,"
id., at
508, but the manner of that confrontation cannot consist of
selective limitations upon speech. St. Paul's brief asserts that a
general "fighting words" law would not meet the city's needs
because only a content-specific measure can communicate to minority
groups that the "group hatred" aspect of such speech "is not
condoned by the majority." Brief for Respondent 25. The point of
the First Amendment is that majority preferences must be expressed
in some fashion other than silencing speech on the basis of its
content.
Despite the fact that the Minnesota Supreme Court and St. Paul
acknowledge that the ordinance is directed at expression of group
hatred, JUSTICE STEVENS suggests that this "fundamentally misreads"
the ordinance.
Post, at 433. I t is directed, he claims, not
to speech of a particular content, but to particular "injur[ies]"
that are "qualitatively different" from other injuries.
Post, at 424. This is wordplay. What makes the anger, fear,
sense of dishonor, etc., produced by violation of this ordinance
distinct from the anger, fear, sense of dishonor, etc., produced by
other fighting words is
393
nothing other than the fact that it is caused by a distinctive
idea, conveyed by a distinctive message. The First Amendment cannot
be evaded that easily. It is obvious that the symbols which will
arouse "anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender" are those symbols that
communicate a message of hostility based on one of these
characteristics. St. Paul concedes in its brief that the ordinance
applies only to "racial, religious, or gender-specific symbols"
such as "a burning cross, Nazi swastika or other instrumentality of
like import." Brief for Respondent 8. Indeed, St. Paul argued in
the Juvenile Court that "[t]he burning of a cross does express a
message and it is, in fact, the content of that message which the
St. Paul Ordinance attempts to legislate." Memorandum from the
Ramsey County Attorney to the Honorable Charles A. Flinn, Jr.,
dated July 13, 1990, in
In re Welfare of R. A. V:, No.
89-D-1231 (Ramsey Cty. Juvenile Ct.), p. 1, reprinted in App. to
Brief for Petitioner C-l.
The content-based discrimination reflected in the St. Paul
ordinance comes within neither any of the specific exceptions to
the First Amendment prohibition we discussed earlier nor a more
general exception for content discrimination that does not threaten
censorship of ideas. It assuredly does not fall within the
exception for content discrimination based on the very reasons why
the particular class of speech at issue (here, fighting words) is
proscribable. As explained earlier, see
supra, at 386, the
reason why fighting words are categorically excluded from the
protection of the First Amendment is not that their content
communicates any particular idea, but that their content embodies a
particularly intolerable (and socially unnecessary)
mode of
expressing
whatever idea the speaker wishes to convey. St.
Paul has not singled out an especially offensive mode of
expression-it has not, for example, selected for prohibition only
those fighting words that communicate ideas in a threatening (as
opposed to a merely obnoxious) manner. Rather, it has proscribed
fight-
394
ing words of whatever manner that communicate messages of
racial, gender, or religious intolerance. Selectivity of this sort
creates the possibility that the city is seeking to handicap the
expression of particular ideas. That possibility would alone be
enough to render the ordinance presumptively invalid, but St.
Paul's comments and concessions in this case elevate the
possibility to a certainty.
St. Paul argues that the ordinance comes within another of the
specific exceptions we mentioned, the one that allows content
discrimination aimed only at the "secondary effects" of the speech,
see
Renton v.
Playtime Theatres, Inc., 475 U. S. 41 (1986).
According to St. Paul, the ordinance is intended, "not to impact on
[sic] the right of free expression of the accused," but
rather to "protect against the victimization of a person or persons
who are particularly vulnerable because of their membership in a
group that historically has been discriminated against." Brief for
Respondent 28. Even assuming that an ordinance that completely
proscribes, rather than merely regulates, a specified category of
speech can ever be considered to be directed only to the secondary
effects of such speech, it is clear that the St. Paul ordinance is
not directed to secondary effects within the meaning of
Renton. As we said in
Boos v.
Barry, 485 U. S. 312 (1988),
"Listeners' reactions to speech are not the type of 'secondary
effects' we referred to in
Renton." Id., at 321. "The
emotive impact of speech on its audience is not a 'secondary
effect.'"
Ibid. See also
id., at 334 (opinion of
Brennan, J.).7
7 St. Paul has not argued in this case that the ordinance merely
regulates that subclass of fighting words which is most likely to
provoke a violent response. But even if one assumes (as appears
unlikely) that the categories selected may be so described, that
would not justify selective regulation under a "secondary effects"
theory. The only reason why such expressive conduct would be
especially correlated with violence is that it conveys a
particularly odious message; because the "chain of causation" thus
necessarily "run[s] through the persuasive effect of the
expressive component" of the conduct,
Barnes v.
Glen
Theatre, Inc., 501 U. S. 560, 586 (1991)
(SOUTER, J., concurring in judgment), it is clear that the St.
Paul
395
It hardly needs discussion that the ordinance does not fall
within some more general exception permitting
all
selectivity that for any reason is beyond the suspicion of official
suppression of ideas. The statements of St. Paul in this very case
afford ample basis for, if not full confirmation of, that
suspicion.
Finally, St. Paul and its
amici defend the conclusion of
the Minnesota Supreme Court that, even if the ordinance regulates
expression based on hostility towards its protected ideological
content, this discrimination is nonetheless justified because it is
narrowly tailored to serve compelling state interests.
Specifically, they assert that the ordinance helps to ensure the
basic human rights of members of groups that have historically been
subjected to discrimination, including the right of such group
members to live in peace where they wish. We do not doubt that
these interests are compelling, and that the ordinance can be said
to promote them. But the "danger of censorship" presented by a
facially contentbased statute,
Leathers v.
Medlock,
499 U. S., at 448, requires that that weapon be employed only where
it is
"necessary to serve the asserted [compelling]
interest,"
Burson v.
Freeman, 504 U. S. 191, 199 (1992)
(plurality opinion) (emphasis added);
Perry Ed. Assn. v.
Perry Local Educators' Assn., 460 U. S. 37, 45 (1983).
The existence of adequate contentneutral alternatives thus
"undercut[s] significantly" any defense of such a statute,
Boos v.
Barry, supra, at 329, casting considerable
doubt on the government's protestations that "the asserted
justification is in fact an accurate description of the purpose and
effect of the law,"
Burson, supra, at 213 (KENNEDY, J.,
concurring). See
Boos, supra, at 324-329; cf.
Minneapolis
Star &
Tribune Co. v.
Minnesota Comm'r of
Revenue, 460 U.
S. 575, 586-587 (1983). The dispositive question in this case,
therefore, is whether content discrimination is reasonably
necessary to achieve St. Paul's compel-
ordinance regulates on the basis of the "primary" effect of the
speechi.
e., its persuasive (or repellant) force.
396
ling interests; it plainly is not. An ordinance not limited to
the favored topics, for example, would have precisely the same
beneficial effect. In fact the only interest distinctively served
by the content limitation is that of displaying the city council's
special hostility towards the particular biases thus singled out.s
That is precisely what the First Amendment forbids. The politicians
of St. Paul are entitled to express that hostility-but not through
the means of imposing unique limitations upon speakers who (however
benightedly) disagree.
***
Let there be no mistake about our belief that burning a cross in
someone's front yard is reprehensible. But St. Paul has sufficient
means at its disposal to prevent such behavior without adding the
First Amendment to the fire.
The judgment of the Minnesota Supreme Court is reversed, and the
case is remanded for proceedings not inconsistent with this
opinion.
It is so ordered.
8 A plurality of the Court reached a different conclusion with
regard to the Tennessee antielectioneering statute considered
earlier this Term in
Burson v.
Freeman, 504 U. S. 191 (1992). In
light of the "logical connection" between electioneering and the
State's compelling interest in preventing voter intimidation and
election fraud-an inherent connection borne out by a "long history"
and a "widespread and time-tested consensus,"
id., at 206,
208, n. 10, 211-the plurality concluded that it was faced with one
of those "rare case[s]" in which the use of a facially
content-based restriction was justified by interests unrelated to
the suppression of ideas,
id., at 211; see also
id.,
at 213 (KENNEDY, J., concurring). JUSTICE WHITE and JUSTICE STEVENS
are therefore quite mistaken when they seek to convert the
Burson plurality's passing comment that "[t]he First
Amendment does not require States to regulate for problems that do
not exist,"
id., at 207, into endorsement of the
revolutionary proposition that the suppression of particular ideas
can be justified when only those ideas have been a source of
trouble in the past.
Post, at 405 (WHITE, J., concurring in
judgment);
post, at 434 (STEVENS, J., concurring in
judgment).
397
JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR
join, and with whom JUSTICE STEVENS joins except as to Part I-A,
concurring in the judgment.
I agree with the majority that the judgment of the Minnesota
Supreme Court should be reversed. However, our agreement ends
there.
This case could easily be decided within the contours of
established First Amendment law by holding, as petitioner argues,
that the St. Paul ordinance is fatally overbroad because it
criminalizes not only unprotected expression but expression
protected by the First Amendment. See Part II,
infra.
Instead, "find[ing] it unnecessary" to consider the questions upon
which we granted review,l
ante, at 381, the
1 The Court granted certiorari to review the following
questions:
"1. May a local government enact a content-based, 'hate-crime'
ordinance prohibiting the display of symbols, including a Nazi
swastika or a burning cross, on public or private property, which
one knows or has reason to know arouses anger, alarm, or resentment
in others on the basis of race, color, creed, religion, or gender
without violating overbreadth and vagueness principles of the First
Amendment to the United States Constitution?
"2. Can the constitutionality of such a vague and substantially
overbroad content-based restraint of expression be saved by a
limiting construction, like that used to save the vague and
overbroad content-neutral laws, restricting its application to
'fighting words' or 'imminent lawless action?'" Pet. for Cert.
i.
It has long been the rule of this Court that "[o]nly the
questions set forth in the petition, or fairly included therein,
will be considered by the Court." This Court's Rule 14.1(a). This
Rule has served to focus the issues presented for review. But the
majority reads the Rule so expansively that any First Amendment
theory would appear to be "fairly included" within the questions
quoted above.
Contrary to the impression the majority attempts to create
through its selective quotation of petitioner's briefs, see
ante, at 381-382, n. 3, petitioner did not present to this
Court or the Minnesota Supreme Court anything approximating the
novel theory the majority adopts today. Most certainly petitioner
did not "reiterat[e]" such a claim at argument; he responded to a
question from the bench, Tr. of Oral Arg. 8. Previously, this Court
has shown the restraint to refrain from deciding cases on the
basis
398
WHITE, J., concurring in judgment
Court holds the ordinance facially unconstitutional on a ground
that was never presented to the Minnesota Supreme Court, a ground
that has not been briefed by the parties before this Court, a
ground that requires serious departures from the teaching of prior
cases and is inconsistent with the plurality opinion in
Burson v.
Freeman, 504 U. S. 191 (1992),
which was joined by two of the five Justices in the majority in the
present case.
This Court ordinarily is not so eager to abandon its precedents.
Twice within the past month, the Court has declined to overturn
longstanding but controversial decisions on questions of
constitutional law. See
Allied-Signal, Inc. v.
Director,
Division of Taxation, 504 U. S. 768 (1992);
Quill Corp. v.
North Dakota, 504 U. S. 298 (1992). In
each case, we had the benefit of full briefing on the critical
issue, so that the parties and
amici had the opportunity to
apprise us of the impact of a change in the law. And in each case,
the Court declined to abandon its precedents, invoking the
principle of
stare decisis. Allied-Signal, Inc., supra, at
783-786;
Quill Corp., supra, at 317-318.
But in the present case, the majority casts aside
longestablished First Amendment doctrine without the benefit of
briefing and adopts an untried theory. This is hardly a judicious
way of proceeding, and the Court's reasoning in reaching its result
is transparently wrong.
of its own theories when they have not been pressed or passed
upon by a state court of last resort. See,
e. g., Illinois
v.
Gates, 462
U. S. 213, 217-224 (1983).
Given this threshold issue, it is my view that the Court lacks
jurisdiction to decide the case on the majority rationale. Cf.
Arkansas Electric Cooperative Corp. v.
Arkansas Pub.
Servo Comm'n, 461
U. S. 375, 382, n. 6 (1983). Certainly the preliminary
jurisdictional and prudential concerns are sufficiently weighty
that we would never have granted certiorari had petitioner sought
review of a question based on the majority's decisional theory.
399
I A
This Court's decisions have plainly stated that expression
falling within certain limited categories so lacks the values the
First Amendment was designed to protect that the Constitution
affords no protection to that expression.
Chaplinsky v.
New Hampshire, 315 U. S. 568 (1942),
made the point in the clearest possible terms:
"There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem .... It has been well
observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step
to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality."
Id., at 571-572.
See also Bose Corp. v. Consumers Union of United States, Inc.,
466 U. S. 485,
504 (1984) (citing Chaplinsky).
Thus, as the majority concedes, see
ante, at 383-384,
this Court has long held certain discrete categories of expression
to be proscribable on the basis of their content. For instance, the
Court has held that the individual who falsely shouts "fire" in a
crowded theater may not claim the protection of the First
Amendment.
Schenck v.
United States, 249 U. S. 47, 52 (1919).
The Court has concluded that neither child pornography nor
obscenity is protected by the First Amendment.
New York v.
Ferber, 458 U.
S. 747, 764 (1982);
Miller v.
California,
413 U. S. 15, 20
(1973);
Roth v.
United States, 354 U. S. 476, 484-485
(1957). And the Court has observed that, "[l]eaving aside the
special considerations when public officials [and public figures]
are the target, a libelous publication is not protected by the
Constitution."
Ferber, supra, at 763 (citations
omitted).
400
WHITE, J., concurring in judgment
All of these categories are content based. But the Court has
held that the First Amendment does not apply to them because their
expressive content is worthless or of
de minimis value to
society.
Chaplinsky, supra, at 571-572. We have not departed
from this principle, emphasizing repeatedly that, "within the
confines of [these] given classification[s], the evil to be
restricted so overwhelmingly outweighs the expressive interests, if
any, at stake, that no process of case-by-case adjudication is
required."
Ferber, supra, at
763-764; Bigelow v.
Virginia, 421
U. S. 809, 819 (1975). This categorical approach has provided a
principled and narrowly focused means for distinguishing between
expression that the government may regulate freely and that which
it may regulate on the basis of content only upon a showing of
compelling need.2
Today, however, the Court announces that earlier Courts did not
mean their repeated statements that certain categories of
expression are "not within the area of constitutionally protected
speech."
Roth, supra, at 483. See
ante, at 383,
citing
Beauharnais v.
Illinois, 343 U. S. 250, 266
(1952);
Chap linsky, supra, at 571-572;
Bose Corp.,
supra, at 504;
Sable Communications of Cal., Inc. v.
FCC, 492 U. S.
115, 124 (1989). The present Court submits that such clear
statements "must be taken in context" and are not "literally true."
Ante, at 383.
To the contrary, those statements meant precisely what they
said: The categorical approach is a firmly entrenched part of our
First Amendment jurisprudence. Indeed, the Court in
Roth
reviewed the guarantees of freedom of expression in effect at the
time of the ratification of the Constitution and concluded, "In
light of this history, it is apparent that the unconditional
phrasing of the First Amendment was
2 "In each of these areas, the limits of the unprotected
category, as well as the unprotected character of particular
communications, have been determined by the judicial evaluation of
special facts that have been deemed to have constitutional
significance."
Bose Corp. v.
Consumers Union of United
States, Inc., 466
U. S. 485, 504-505 (1984).
401
not intended to protect every utterance." 354 U. S., at
482-483.
In its decision today, the Court points to "[n]othing ... in
this Court's precedents warrant[ing] disregard of this longstanding
tradition."
Burson, 504 U. S., at 216 (SCALIA, J.,
concurring in judgment);
Allied-Signal, Inc., supra, at 783.
Nevertheless, the majority holds that the First Amendment protects
those narrow categories of expression long held to be undeserving
of First Amendment protection-at least to the extent that lawmakers
may not regulate some fighting words more strictly than others
because of their content. The Court announces that such
content-based distinctions violate the First Amendment because
"[t]he government may not regulate use based on hostility-or
favoritism-towards the underlying message expressed."
Ante,
at 386. Should the government want to criminalize certain fighting
words, the Court now requires it to criminalize all fighting
words.
To borrow a phrase: "Such a simplistic, all-or-nothing-atall
approach to First Amendment protection is at odds with common sense
and with our jurisprudence as well."
Ante, at 384. It is
inconsistent to hold that the government may proscribe an entire
category of speech because the content of that speech is evil,
Ferber, supra, at 763-764; but that the government may not
treat a subset of that category differently without violating the
First Amendment; the content of the subset is by definition
worthless and undeserving of constitutional protection.
The majority's observation that fighting words are "quite
expressive indeed,"
ante, at 385, is no answer. Fighting
words are not a means of exchanging views, rallying supporters, or
registering a protest; they are directed against individuals to
provoke violence or to inflict injury.
Chaplinsky, 315 U.
S., at 572. Therefore, a ban on all fighting words or on a subset
of the fighting words category would restrict only the social evil
of hate speech, without creating the danger of driving viewpoints
from the marketplace. See
ante, at 387.
402
WHITE, J., concurring in judgment
Therefore, the Court's insistence on inventing its brand of
First Amendment underinclusiveness puzzles me.3 The overbreadth
doctrine has the redeeming virtue of attempting to avoid the
chilling of protected expression,
Broadrick v.
Oklahoma, 413
U. S. 601, 612 (1973);
Osborne v.
Ohio, 495 U. S. 103, 112, n. 8
(1990);
Brockett v.
Spokane Arcades, Inc., 472 U. S. 491, 503
(1985);
Ferber, supra, at 772, but the Court's new
"underbreadth" creation serves no desirable function. Instead, it
permits, indeed invites, the continuation of expressive conduct
that in this case is evil and worthless in First Amendment terms,
see
Ferber, supra, at 763
764; Chaplinsky, supra, at
571-572, until the city of St. Paul cures the underbreadth by
adding to its ordinance a catchall phrase such as "and all other
fighting words that may constitutionally be subject to this
ordinance."
Any contribution of this holding to First Amendment
jurisprudence is surely a negative one, since it necessarily
signals that expressions of violence, such as the message of
intimidation and racial hatred conveyed by burning a cross on
someone's lawn, are of sufficient value to outweigh the social
interest in order and morality that has traditionally placed such
fighting words outside the First Amendment.4 Indeed, by
characterizing fighting words as a form of "debate,"
ante,
at 392, the majority legitimates hate speech as a form of public
discussion.
3 The assortment of exceptions the Court attaches to its rule
belies the majority's claim, see
ante, at 387, that its new
theory is truly concerned with content discrimination. See Part
I-C,
infra (discussing the exceptions).
4 This does not suggest, of course, that cross burning is always
unprotected. Burning a cross at a political rally would almost
certainly be protected expression. Cf.
Brandenburg v.
Ohio, 395 U.
S. 444, 445 (1969). But in such a context, the cross burning
could not be characterized as a "direct personal insult or an
invitation to exchange fisticuffs,"
Texas v.
Johnson,
491 U. S. 397,
409 (1989), to which the fighting words doctrine, see Part II,
infra, applies.
403
Furthermore, the Court obscures the line between speech that
could be regulated freely on the basis of content (i.
e.,
the narrow categories of expression falling outside the First
Amendment) and that which could be regulated on the basis of
content only upon a showing of a compelling state interest (i.
e., all remaining expression). By placing fighting words,
which the Court has long held to be valueless, on at least equal
constitutional footing with political discourse and other forms of
speech that we have deemed to have the greatest social value, the
majority devalues the latter category. See
Burson v.
Freeman, supra, at 196;
Eu v.
San Francisco Cty.
Democratic Central Comm., 489 U. S. 214, 222-223
(1989).
B
In a second break with precedent, the Court refuses to sustain
the ordinance even though it would survive under the strict
scrutiny applicable to other protected expression. Assuming,
arguendo, that the St. Paul ordinance is a contentbased
regulation of protected expression, it nevertheless would pass
First Amendment review under settled law upon a showing that the
regulation "'is necessary to serve a compelling state interest and
is narrowly drawn to achieve that end.'"
Simon &
Schuster, Inc. v.
Members of N.
Y. State Crime
Victims Bd., 502
U. S. 105, 118 (1991) (quoting
Arkansas Writers' Project,
Inc. v.
Ragland, 481 U. S. 221, 231
(1987)). St. Paul has urged that its ordinance, in the words of the
majority, "helps to ensure the basic human rights of members of
groups that have historically been subjected to discrimination ....
"
Ante, at 395. The Court expressly concedes that this
interest is compelling and is promoted by the ordinance.
Ibid. Nevertheless, the Court treats strict scrutiny
analysis as irrelevant to the constitutionality of the
legislation:
"The dispositive question ... is whether content discrimination
is reasonably necessary to achieve St. Paul's compelling interests;
it plainly is not. An ordinance not
404
WHITE, J., concurring in judgment
limited to the favored topics, for example, would have precisely
the same beneficial effect." Ante, at 395-396.
Under the majority's view, a narrowly drawn, content-based
ordinance could never pass constitutional muster if the object of
that legislation could be accomplished by banning a wider category
of speech. This appears to be a general renunciation of strict
scrutiny review, a fundamental tool of First Amendment
analysis.5
This abandonment of the doctrine is inexplicable in light of our
decision in
Burson v.
Freeman, 504 U. S. 191 (1992),
which was handed down just a month ago.6 In
Burson, seven of
the eight participating Members of the Court agreed that the strict
scrutiny standard applied in a case involving a First Amendment
challenge to a content-based statute. See
id., at 198
(plurality opinion);
id., at 217 (STEVENS, J.,
5 The majority relies on
Boos v.
Barry, 485 U. S. 312 (1988), in
arguing that the availability of content-neutral alternatives
"'undercut[s] significantly'" a claim that content-based
legislation is
"'necessary to serve the asserted
[compelling] interest.'''
Ante, at 395 (quoting
Boos,
supra, at 329, and
Burson v.
Freeman, 504 U. S. 191, 199 (1992)
(plurality opinion)).
Boos does not support the majority's
analysis. In
Boos, Congress already had decided that the
challenged legislation was not necessary, and the Court pointedly
deferred to this choice. 485 U. S., at 329. St. Paul lawmakers have
made no such legislative choice.
Moreover, in
Boos, the Court held that the challenged
statute was not narrowly tailored because a less restrictive
alternative was available.
Ibid. But the Court's analysis
today turns
Boos inside-out by substituting the majority's
policy judgment that a
more restrictive alternative could
adequately serve the compelling need identified by St.
Paullawmakers. The result would be: (a) a statute that was not
tailored to fit the need identified by the government; and (b) a
greater restriction on fighting words, even though the Court
clearly believes that fighting words have protected expressive
content.
Ante, at 384-385.
6 Earlier this Term, seven of the eight participating Members of
the Court agreed that strict scrutiny analysis applied in
Simon &
Schuster, Inc. v.
Members of N. Y.
State Crime Victims Bd., 502 U. S. 105 (1991), in
which we struck down New York's "Son of Sam" law, which required
"that an accused or convicted criminal's income from works
describing his crime be deposited in an escrow account."
Id., at 108.
405
dissenting).7 The statute at issue prohibited the solicitation
of votes and the display or distribution of campaign materials
within 100 feet of the entrance to a polling place. The plurality
concluded that the legislation survived strict scrutiny because the
State had asserted a compelling interest in regulating
electioneering near polling places and because the statute at issue
was narrowly tailored to accomplish that goal.
Id., at
208-210.
Significantly, the statute in
Burson did not proscribe
all speech near polling places; it restricted only political
speech.
Id., at 197. The
Burson plurality, which
included THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded that the
distinction between types of speech required application of strict
scrutiny, but it squarely rejected the proposition that the
legislation failed First Amendment review because it could have
been drafted in broader, content-neutral terms:
"States adopt laws to address the problems that confront them.
The First Amendment does not require States to regulate for
problems that do not exist." Id., at 207 (emphasis added).
This reasoning is in direct conflict with the majority's
analysis in the present case, which leaves two options to lawmakers
attempting to regulate expressions of violence: (1) enact a
sweeping prohibition on an entire class of speech (thereby
requiring "regulat[ion] for problems that do not exist"); or (2)
not legislate at all.
Had the analysis adopted by the majority in the present case
been applied in
Burson, the challenged election law would
have failed constitutional review, for its content-based
distinction between political and nonpolitical speech could not
have been characterized as "reasonably necessary,"
ante,
7 The
Burson dissenters did not complain that the
plurality erred in applying strict scrutiny; they objected that the
plurality was not sufficiently rigorous in its review. 504 U. S.,
at 225-226 (STEVENS, J., dissenting).
406
WHITE, J., concurring in judgment
at 395, to achieve the State's interest in regulating polling
place premises.8
As with its rejection of the Court's categorical analysis, the
majority offers no reasoned basis for discarding our firmly
established strict scrutiny analysis at this time. The majority
appears to believe that its doctrinal revisionism is necessary to
prevent our elected lawmakers from prohibiting libel against
members of one political party but not another and from enacting
similarly preposterous laws.
Ante, at 384. The majority is
misguided.
Although the First Amendment does not apply to categories of
unprotected speech, such as fighting words, the Equal Protection
Clause requires that the regulation of unprotected speech be
rationally related to a legitimate government interest. A
defamation statute that drew distinctions on the basis of political
affiliation or "an ordinance prohibiting only those legally obscene
works that contain criticism of the city government,"
ibid.,
would unquestionably fail rational-basis review.9
8JU8TICE SCALIA concurred in the judgment in
Burson,
reasoning that the statute, "though content based, is
constitutional [as] a reasonable, viewpoint-neutral regulation of a
nonpublic forum."
Id., at 214. However, nothing in his
reasoning in the present case suggests that a contentbased ban on
fighting words would be constitutional were that ban limited to
nonpublic fora. Taken together, the two opinions suggest that, in
some settings, political speech, to which "the First Amendment 'has
its fullest and most urgent application,'" is entitled to less
constitutional protection than fighting words.
Eu v.
San
Francisco Cty. Democratic Central Comm., 489 U. S. 214, 223 (1989)
(quoting
Monitor Patriot Co. v.
Roy, 401
9 The majority is mistaken in stating that a ban on obscene
works critical of government would fail equal protection review
only because the ban would violate the First Amendment.
Ante, at 384-385, n. 4. While decisions such as
Police
Dept. of Chicago v.
Mosley, 408 U. S. 92 (1972),
recognize that First Amendment principles may be relevant to an
equal protection claim challenging distinctions that impact on
protected expression,
id., at 95-99, there is no basis for
linking First and Fourteenth Amendment analysis in a case involving
unprotected expression. Certainly, one
407
Turning to the St. Paul ordinance and assuming,
arguendo,
as the majority does, that the ordinance is not constitutionally
overbroad (but see Part II,
infra), there is no question
that it would pass equal protection review. The ordinance
proscribes a subset of "fighting words," those that injure "on the
basis of race, color, creed, religion or gender." This selective
regulation reflects the city's judgment that harms based on race,
color, creed, religion, or gender are more pressing public concerns
than the harms caused by other fighting words. In light of our
Nation's long and painful experience with discrimination, this
determination is plainly reasonable. Indeed, as the majority
concedes, the interest is compelling.
Ante, at 395.
C
The Court has patched up its argument with an apparently
nonexhaustive list of ad hoc exceptions, in what can be viewed
either as an attempt to confine the effects of its decision to the
facts of this case, see
post, at 415 (BLACKMUN, J.,
concurring in judgment), or as an effort to anticipate some of the
questions that will arise from its radical revision of First
Amendment law.
For instance, if the majority were to give general application
to the rule on which it decides this case, today's decision would
call into question the constitutionality of the statute making it
illegal to threaten the life of the President. 18 U. S. C. §871.
See
Watts v.
United States, 394 U. S. 705
(1969) (per curiam). Surely, this statute, by
singling out certain threats, incorporates a content-based
distinction; it indicates that the Government especially disfavors
threats against the President as opposed to threats against all
oth-
need not resort to First Amendment principles to conclude that
the sort of improbable legislation the majority hypothesizes is
based on senseless distinctions.
408
WHITE, J., concurring in judgment
ers.10 See
ante, at 391. But because the Government could
prohibit all threats and not just those directed against the
President, under the Court's theory, the compelling reasons
justifying the enactment of special legislation to safeguard the
President would be irrelevant, and the statute would fail First
Amendment review.
To save the statute, the majority has engrafted the following
exception onto its newly announced First Amendment rule:
Content-based distinctions may be drawn within an unprotected
category of speech if the basis for the distinctions is "the very
reason the entire class of speech at issue is proscribable."
Ante, at 388. Thus, the argument goes, the statute making it
illegal to threaten the life of the President is constitutional,
"since the reasons why threats of violence are outside the First
Amendment (protecting individuals from the fear of violence, from
the disruption that fear engenders, and from the possibility that
the threatened violence will occur) have special force when applied
to the person of the President."
Ibid.
The exception swallows the majority's rule. Certainly, it should
apply to the St. Paul ordinance, since "the reasons why [fighting
words] are outside the First Amendment ... have special force when
applied to [groups that have historically been subjected to
discrimination]."
To avoid the result of its own analysis, the Court suggests that
fighting words are simply a mode of communication, rather than a
content-based category, and that the St. Paul ordinance has not
singled out a particularly objectionable mode of communication.
Ante, at 386, 393. Again, the majority confuses the issue. A
prohibition on fighting words is not a time, place, or manner
restriction; it is a ban on a class of speech that conveys an
overriding message of personal injury and imminent violence,
Chaplinsky, 315 U. S., at 572, a message that is at its
ugliest when directed against groups
10 Indeed, such a law is content based in and of itself because
it distinguishes between threatening and nonthreatening speech.
409
that have long been the targets of discrimination. Accordingly,
the ordinance falls within the first exception to the majority's
theory.
As its second exception, the Court posits that certain
content-based regulations will survive under the new regime if the
regulated subclass "happens to be associated with particular
'secondary effects' of the speech ... ,"
ante, at 389, which
the majority treats as encompassing instances in which "words can
... violate laws directed not against speech but against conduct
... ,"
ibidY Again, there is a simple explanation for the
Court's eagerness to craft an exception to its new First Amendment
rule: Under the general rule the Court applies in this case, Title
VII hostile work environment claims would suddenly be
unconstitutional.
Title VII of the Civil Rights Act of 1964 makes it unlawful to
discriminate "because of [an] individual's race, color, religion,
sex, or national origin," 42 U. S. C. § 2000e-2(a)(1), and the
regulations covering hostile workplace claims forbid "sexual
harassment," which includes "[u]nwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct of a sexual
nature" that create "an intimidating, hostile, or offensive working
environment," 29 CFR § 1604.11(a) (1991). The regulation does not
prohibit workplace harassment generally; it focuses on what the
majority would characterize as the "disfavored topi[c]" of sexual
harassment.
Ante, at 391. In this way, Title VII is similar
to the St. Paul ordinance that the majority condemns because it
"impose[s] special prohibitions on those speakers who express views
on disfavored subjects."
Ibid. Under the broad principle the
Court uses to decide the present case,
11 The consequences of the majority's conflation of the rarely
used secondary effects standard and the
O'Brien test for
conduct incorporating "speech" and "nonspeech" elements, see
generally
United States v.
O'Brien, 391 U. S. 367, 376-377
(1968), present another question that I fear will haunt us and the
lower courts in the aftermath of the majority's opinion.
410
WHITE, J., concurring in judgment
hostile work environment claims based on sexual harassment
should fail First Amendment review; because a general ban on
harassment in the workplace would cover the problem of sexual
harassment, any attempt to proscribe the subcategory of sexually
harassing expression would violate the First Amendment.
Hence, the majority's second exception, which the Court
indicates would insulate a Title VII hostile work environment claim
from an underinclusiveness challenge because "sexually derogatory
'fighting words' ... may produce a violation of Title VII's general
prohibition against sexual discrimination in employment practices."
Ante, at 389. But application of this exception to a hostile
work environment claim does not hold up under close
examination.
First, the hostile work environment regulation is not keyed to
the presence or absence of an economic
quid pro quo, Meritor
Savings Bank, F. S.
B. v.
Vinson, 477 U. S. 57, 65 (1986),
but to the impact of the speech on the victimized worker.
Consequently, the regulation would no more fall within a secondary
effects exception than does the St. Paul ordinance.
Ante, at
394. Second, the majority's focus on the statute's general
prohibition on discrimination glosses over the language of the
specific regulation governing hostile working environment, which
reaches beyond any "incidental" effect on speech.
United
States v.
O'Brien, 391 U. S. 367, 376
(1968). If the relationship between the broader statute and
specific regulation is sufficent to bring the Title VII regulation
within
O'Brien, then all St. Paul need do to bring its
ordinance within this exception is to add some prefatory language
concerning discrimination generally.
As to the third exception to the Court's theory for deciding
this case, the majority concocts a catchall exclusion to protect
against unforeseen problems, a concern that is heightened here
given the lack of briefing on the majority's decisional theory.
This final exception would apply in cases in which "there is no
realistic possibility that official suppression of ideas is afoot."
Ante, at 390. As I have demon-
411
strated, this case does not concern the official suppression of
ideas. See
supra, at 401. The majority discards this notion
out of hand.
Ante, at 395.
As I see it, the Court's theory does not work and will do
nothing more than confuse the law. Its selection of this case to
rewrite First Amendment law is particularly inexplicable, because
the whole problem could have been avoided by deciding this case
under settled First Amendment principles.
II
Although I disagree with the Court's analysis, I do agree with
its conclusion: The St. Paul ordinance is unconstitutional.
However, I would decide the case on overbreadth grounds.
We have emphasized time and again that overbreadth doctrine is
an exception to the established principle that "a person to whom a
statute may constitutionally be applied will not be heard to
challenge that statute on the ground that it may conceivably be
applied unconstitutionally to others, in other situations not
before the Court."
Broadrick v.
Oklahoma, 413 U. S.,
at 610;
Brockett v.
Spokane Arcades, Inc., 472 U. S.,
at 503-504. A defendant being prosecuted for speech or expressive
conduct may challenge the law on its face if it reaches protected
expression, even when that person's activities are not protected by
the First Amendment. This is because "the possible harm to society
in permitting some unprotected speech to go unpunished is
outweighed by the possibility that protected speech of others may
be muted."
Broadrick, supra, at 612;
Osborne v.
Ohio, 495 U. S., at 112, n. 8;
New York v.
Ferber, 458 U. S., at 768-769;
Schaumburg v.
Citizens for a Better Environment, 444 U. S. 620, 634
(1980);
Gooding v.
Wilson, 405 U. S. 518, 521
(1972).
However, we have consistently held that, because overbreadth
analysis is "strong medicine," it may be invoked to strike an
entire statute only when the overbreadth of the statute is not only
"real, but substantial as well, judged in relation to the statute's
plainly legitimate sweep,"
Broad-
412
WHITE, J., concurring in judgment
rick, 413 U. S., at 615, and when the statute is not
susceptible to limitation or partial invalidation,
id., at
613;
Board of Airport Comm'rs of Los Angeles v.
Jews for
Jesus, Inc., 482 U. S. 569, 574 (1987). "When a federal court
is dealing with a federal statute challenged as overbroad, it
should ... construe the statute to avoid constitutional problems,
if the statute is subject to a limiting construction."
Ferber, 458 U. S., at 769, n. 24. Of course, "[a] state
court is also free to deal with a state statute in the same way."
Ibid. See,
e. g., Osborne, 495 U. S., at 113-114.
Petitioner contends that the St. Paul ordinance is not
susceptible to a narrowing construction and that the ordinance
therefore should be considered as written, and not as construed by
the Minnesota Supreme Court. Petitioner is wrong. Where a state
court has interpreted a provision of state law, we cannot ignore
that interpretation, even if it is not one that we would have
reached if we were construing the statute in the first instance.
Ibid.; Kolender v.
Lawson, 461 U. S. 352, 355
(1983);
Hoffman Estates v.
Flipside, Hoffman Estates,
Inc., 455 U. S.
489, 494, n. 5 (1982).12
Of course, the mere presence of a state court interpretation
does not insulate a statute from overbreadth review. We have
stricken legislation when the construction supplied by the state
court failed to cure the overbreadth problem.
12 Petitioner can derive no support from our statement in
Virginia v.
American Booksellers Assn., Inc., 484 U. S. 383, 397
(1988), that "the statute must be 'readily susceptible' to the
limitation; we will not rewrite a state law to conform it to
constitutional requirements." In
American Booksellers, no
state court had construed the language in dispute. In that
instance, we certified a question to the state court so that it
would have an opportunity to provide a narrowing interpretation.
Ibid. In
Erznoznik v.
Jacksonville, 422 U. S. 205, 216
(1975), the other case upon which petitioner principally relies, we
observed not only that the ordinance at issue was not "by its plain
terms ... easily susceptible of a narrowing construction," but that
the state courts had made no effort to restrict the scope of the
statute when it was challenged on overbreadth grounds.
413
See,
e. g., Lewis v.
New Orleans, 415 U. S. 130, 132-133
(1974);
Gooding, supra, at 524-525. But in such cases, we
have looked to the statute as construed in determining whether it
contravened the First Amendment. Here, the Minnesota Supreme Court
has provided an authoritative construction of the St. Paul antibias
ordinance. Consideration of petitioner's overbreadth claim must be
based on that interpretation.
I agree with petitioner that the ordinance is invalid on its
face. Although the ordinance as construed reaches categories of
speech that are constitutionally unprotected, it also criminalizes
a substantial amount of expression that-however repugnant-is
shielded by the First Amendment.
In attempting to narrow the scope of the St. Paul antibias
ordinance, the Minnesota Supreme Court relied upon two of the
categories of speech and expressive conduct that fall outside the
First Amendment's protective sphere: words that incite "imminent
lawless action,"
Brandenburg v.
Ohio, 395 U. S. 444,
449 (1969), and "fighting" words,
Chaplinsky v.
New
Hampshire, 315 U. S., at 571-572. The Minnesota Supreme Court
erred in its application of the
Chaplinsky fighting words
test and consequently interpreted the St. Paul ordinance in a
fashion that rendered the ordinance facially overbroad.
In construing the St. Paul ordinance, the Minnesota Supreme
Court drew upon the definition of fighting words that appears in
Chaplinsky-words "which by their very utterance inflict
injury or tend to incite an immediate breach of the peace."
Id., at 572. However, the Minnesota court was far from clear
in identifying the "injur[ies]" inflicted by the expression that
St. Paul sought to regulate. Indeed, the Minnesota court emphasized
(tracking the language of the ordinance) that "the ordinance
censors only those displays that one knows or should know will
create anger, alarm or resentment based on racial, ethnic, gender
or religious bias."
In re Welfare of R. A. V:, 464 N. W. 2d
507, 510 (1991). I
414
WHITE, J., concurring in judgment
therefore understand the court to have ruled that St. Paul may
constitutionally prohibit expression that "by its very utterance"
causes "anger, alarm or resentment."
Our fighting words cases have made clear, however, that such
generalized reactions are not sufficient to strip expression of its
constitutional protection. The mere fact that expressive activity
causes hurt feelings, offense, or resentment does not render the
expression unprotected. See
United States v.
Eichman,
496 U. S. 310,
319 (1990);
Texas v.
Johnson, 491 U. S. 397, 409, 414
(1989);
Hustler Magazine, Inc. v.
Falwell, 485 U. S. 46, 55-56
(1988);
FCC v.
Pacifica Foundation, 438 U. S. 726, 745
(1978);
Hess v.
Indiana, 414 U. S. 105, 107-108
(1973);
Cohen v.
California, 403 U. S. 15, 20 (1971);
Street v.
New York, 394 U. S. 576, 592
(1969);
Terminiello v.
Chicago, 337 U. S. 1 (1949).
In the First Amendment context, "[c]riminal statutes must be
scrutinized with particular care; those that make unlawful a
substantial amount of constitutionally protected conduct may be
held facially invalid even if they also have legitimate
application."
Houston v.
Hill, 482 U. S. 451, 459 (1987)
(citation omitted). The St. Paul antibias ordinance is such a law.
Although the ordinance reaches conduct that is unprotected, it also
makes criminal expressive conduct that causes only hurt feelings,
offense, or resentment, and is protected by the First Amendment.
Cf.
Lewis, supra, at 132.13 The ordinance is therefore
fatally overbroad and invalid on its face.
13 Although the First Amendment protects offensive speech,
Johnson v.
Texas, 491 U. S., at 414, it does not require us to be
subjected to such expression at all times, in all settings. We have
held that such expression may be proscribed when it intrudes upon a
"captive audience."
Frisby v.
Schultz, 487 U. S. 474, 484-485
(1988);
FCC v.
Pacifica Foundation, 438 U. S. 726,
748-749 (1978). And expression may be limited when it merges into
conduct.
United States v.
O'Brien, 391 U. S. 367 (1968); cf.
Meritor Savings Bank, F. S.
B. v.
Vinson,
477 U. S. 57,65
(1986). However, because of the manner in which the Minnesota
Supreme Court construed the St. Paul ordinance, those issues are
not before us in this case.
415
III
Today, the Court has disregarded two established principles of
First Amendment law without providing a coherent replacement
theory. Its decision is an arid, doctrinaire interpretation, driven
by the frequently irresistible impulse of judges to tinker with the
First Amendment. The decision is mischievous at best and will
surely confuse the lower courts. I join the judgment, but not the
folly of the opinion.
JUSTICE BLACKMUN, concurring in the judgment.
I regret what the Court has done in this case. The majority
opinion signals one of two possibilities: It will serve as
precedent for future cases, or it will not. Either result is
disheartening.
In the first instance, by deciding that a State cannot regulate
speech that causes great harm unless it also regulates speech that
does not (setting law and logic on their heads), the Court seems to
abandon the categorical approach, and inevitably to relax the level
of scrutiny applicable to contentbased laws. As JUSTICE WHITE
points out, this weakens the traditional protections of speech. If
all expressive activity must be accorded the same protection, that
protection will be scant. The simple reality is that the Court will
never provide child pornography or cigarette advertising the level
of protection customarily granted political speech. If we are
forbidden to categorize, as the Court has done here, we shall
reduce protection across the board. It is sad that in its effort to
reach a satisfying result in this case, the Court is willing to
weaken First Amendment protections.
In the second instance is the possibility that this case will
not significantly alter First Amendment jurisprudence but, instead,
will be regarded as an aberration-a case where the Court
manipulated doctrine to strike down an ordinance whose premise it
opposed, namely, that racial threats and verbal assaults are of
greater harm than other fighting words. I fear that the Court has
been distracted from its
416
STEVENS, J., concurring in judgment
proper mission by the temptation to decide the issue over
"politically correct speech" and "cultural diversity," neither of
which is presented here. If this is the meaning of today's opinion,
it is perhaps even more regrettable.
I see no First Amendment values that are compromised by a law
that prohibits hoodlums from driving minorities out of their homes
by burning crosses on their lawns, but I see great harm in
preventing the people of Saint Paul from specifically punishing the
race-based fighting words that so prejudice their community.
I concur in the judgment, however, because I agree with JUSTICE
WHITE that this particular ordinance reaches beyond fighting words
to speech protected by the First Amendment.
JUSTICE STEVENS, with whom JUSTICE WHITE and JusTICE BLACKMUN
join as to Part I, concurring in the judgment.
Conduct that creates special risks or causes special harms may
be prohibited by special rules. Lighting a fire near an ammunition
dump or a gasoline storage tank is especially dangerous; such
behavior may be punished more severely than burning trash in a
vacant lot. Threatening someone because of her race or religious
beliefs may cause particularly severe trauma or touch off a riot,
and threatening a high public official may cause substantial social
disruption; such threats may be punished more severely than threats
against someone based on, say, his support of a particular athletic
team. There are legitimate, reasonable, and neutral justifications
for such special rules.
This case involves the constitutionality of one such ordinance.
Because the regulated conduct has some communicative content-a
message of racial, religious, or gender hostility-the ordinance
raises two quite different First Amendment questions. Is the
ordinance "overbroad" be-
417
cause it prohibits too much speech? If not, is it "underbroad"
because it does not prohibit enough speech?
In answering these questions, my colleagues today wrestle with
two broad principles: first, that certain "categories of expression
[including 'fighting words'] are 'not within the area of
constitutionally protected speech,'"
ante, at 400 (WHITE,
J., concurring in judgment); and second, that "[c]ontent-based
regulations [of expression] are presumptively invalid,"
ante, at 382 (majority opinion). Although in past opinions
the Court has repeated both of these maxims, it has-quite
rightly-adhered to neither with the absolutism suggested by my
colleagues. Thus, while I agree that the St. Paul ordinance is
unconstitutionally overbroad for the reasons stated in Part II of
JUSTICE WHITE'S opinion, I write separately to suggest how the
allure of absolute principles has skewed the analysis of both the
majority and JUSTICE WHITE'S opinions.
I
Fifty years ago, the Court articulated a categorical ap-
proach to First Amendment jurisprudence.
"There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem .... It has been well
observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step
to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality."
Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572
(1942).
We have, as JUSTICE WHITE observes, often described such
categories of expression as "not within the area of
constitutionally protected speech."
Roth v.
United
States, 354 U. S.
476, 483 (1957).
418
STEVENS, J., concurring in judgment
The Court today revises this categorical approach. It is not,
the Court rules, that certain "categories" of expression are
"unprotected," but rather that certain "elements" of expression are
wholly "proscribable." To the Court, an expressive act, like a
chemical compound, consists of more than one element. Although the
act may be regulated because it contains a proscribable element, it
may not be regulated on the basis of another (nonproscribable)
element it also contains. Thus, obscene antigovernment speech may
be regulated because it is obscene, but not because it is
antigovernment.
Ante, at 384. It is this revision of the
categorical approach that allows the Court to assume that the St.
Paul ordinance proscribes
only fighting words, while at the
same time concluding that the ordinance is invalid because it
imposes a content-based regulation on expressive activity.
As an initial matter, the Court's revision of the categorical
approach seems to me something of an adventure in a doctrinal
wonderland, for the concept of "obscene antigovernment" speech is
fantastical. The category of the obscene is very narrow; to be
obscene, expression must be found by the trier of fact to "appea[l]
to the prurient interest, ... depic[t] or describ[e], in a patently
offensive way, sexual conduct, [and], taken as a whole,
lac[k]
serious literary, artistic, political, or scientific value."
Miller v.
California, 413 U. S. 15, 24 (1973)
(emphasis added). "Obscene antigovernment" speech, then, is a
contradiction in terms: If expression is antigovernment, it does
not "lac[k] serious ... political ... value" and cannot be
obscene.
The Court attempts to bolster its argument by likening its novel
analysis to that applied to restrictions on the time, place, or
manner of expression or on expressive conduct. It is true that loud
speech in favor of the Republican Party can be regulated because it
is loud, but not because it is proRepublican; and it is true that
the public burning of the American flag can be regulated because it
involves public burning and not because it involves the flag. But
these anal-
419
ogies are inapposite. In each of these examples, the two
elements
(e. g., loudness and pro-Republican orientation)
can coexist; in the case of "obscene antigovernment" speech,
however, the presence of one element ("obscenity") by definition
means the absence of the other. To my mind, it is unwise and
unsound to craft a new doctrine based on such highly speculative
hypotheticals.
I am, however, even more troubled by the second step of the
Court's analysis-namely, its conclusion that the St. Paul ordinance
is an unconstitutional content-based regulation of speech. Drawing
on broadly worded dicta, the Court establishes a near-absolute ban
on content-based regulations of expression and holds that the First
Amendment prohibits the regulation of fighting words by subject
matter. Thus, while the Court rejects the "all-or-nothing-at-all"
nature of the categorical approach,
ante, at 384, it
promptly embraces an absolutism of its own: Within a particular
"proscribable" category of expression, the Court holds, a
government must either proscribe
all speech or no speech at
all.1 This aspect of the Court's ruling fundamentally
misunderstands the role and constitutional status of content-based
regulations on speech, conflicts with the very nature of First
Amendment jurisprudence, and disrupts well-settled principles of
First Amendment law.
1 The Court disputes this characterization because it has
crafted two exceptions, one for "certain media or markets" and the
other for content discrimination based upon "the very reason that
the entire class of speech at issue is proscribable."
Ante,
at 388. These exceptions are, at best, ill defined. The Court does
not tell us whether, with respect to the former, fighting words
such as cross burning could be proscribed only in certain
neighborhoods where the threat of violence is particularly severe,
or whether, with respect to the second category, fighting words
that create a particular risk of harm (such as a race riot) would
be proscribable. The hypothetical and illusory category of these
two exceptions persuades me that either my description of the
Court's analysis is accurate or that the Court does not in fact
mean much of what it says in its opinion.
420
STEVENS, J., concurring in judgment
Although the Court has, on occasion, declared that content-based
regulations of speech are "never permitted,"
Police Dept. of
Chicago v.
Mosley, 408 U. S. 92, 99 (1972),
such claims are overstated. Indeed, in
Mosley itself, the
Court indicated that Chicago's selective proscription of nonlabor
picketing was not
per se unconstitutional, but rather could
be upheld if the city demonstrated that nonlabor picketing was
"clearly more disruptive than [labor] picketing."
Id., at
100. Contrary to the broad dicta in
Mosley and elsewhere,
our decisions demonstrate that content-based distinctions, far from
being presumptively invalid, are an inevitable and indispensable
aspect of a coherent understanding of the First Amendment.
This is true at every level of First Amendment law. In broadest
terms, our entire First Amendment jurisprudence creates a regime
based on the content of speech. The scope of the First Amendment is
determined by the content of expressive activity: Although the
First Amendment broadly protects "speech," it does not protect the
right to "fix prices, breach contracts, make false warranties,
place bets with bookies, threaten, [or] extort." Schauer,
Categories and the First Amendment: A Play in Three Acts, 34 Vand.
L. Rev. 265, 270 (1981). Whether an agreement among competitors is
a violation of the Sherman Act or protected activity under the
Noerr-Pennington doctrine2 hinges upon the content of the
agreement. Similarly, "the line between permissible advocacy and
impermissible incitation to crime or violence depends, not merely
on the setting in which the speech occurs, but also on exactly what
the speaker had to say."
Young v.
American Mini Theatres,
Inc., 427 U. S.
50, 66 (1976) (plurality opinion); see also
Musser v.
Utah, 333 U. S.
95, 100-103 (1948) (Rutledge, J., dissenting).
2 See Mine Workers v. Pennington,
381 U. S. 657 (1965);
Eastern Railroad Presidents Conference v. Noerr Motor Freight,
Inc.,
365 U. S.
127 (1961).
421
Likewise, whether speech falls within one of the categories of
"unprotected" or "proscribable" expression is determined, in part,
by its content. Whether a magazine is obscene, a gesture a fighting
word, or a photograph child pornography is determined, in part, by
its content. Even within categories of protected expression, the
First Amendment status of speech is fixed by its content.
New
York Times Co. v.
Sullivan, 376 U. S. 254 (1964), and
Dun &
Bradstreet, Inc. v.
Greenmoss Builders,
Inc., 472 U. S.
749 (1985), establish that the level of protection given to
speech depends upon its subject matter: Speech about public
officials or matters of public concern receives greater protection
than speech about other topics. It can, therefore, scarcely be said
that the regulation of expressive activity cannot be predicated on
its content: Much of our First Amendment jurisprudence is premised
on the assumption that content makes a difference.
Consistent with this general premise, we have frequently upheld
content-based regulations of speech. For example, in
Young
v.
American Mini Theatres, the Court upheld zoning
ordinances that regulated movie theaters based on the content of
the films shown. In
FCC v.
Pacifica Foundation,
438 U. S. 726
(1978) (plurality opinion), we upheld a restriction on the
broadcast of
specific indecent words. In
Lehman v.
Shaker Heights, 418 U. S. 298 (1974)
(plurality opinion), we upheld a city law that permitted commercial
advertising, but prohibited political advertising, on city buses.
In
Broadrick v.
Oklahoma, 413 U. S. 601 (1973), we
upheld a state law that restricted the speech of state employees,
but only as concerned partisan political matters. We have long
recognized the power of the Federal Trade Commission to regulate
misleading advertising and labeling, see,
e. g., Jacob Siegel
Co. v.
FTC, 327 U. S. 608 (1946), and
the National Labor Relations Board's power to regulate an
employer's election-related speech on the basis of its content,
see,
e. g., NLRB v.
Gissel Packing Co.,
395 U. S. 575,
616-618 (1969).
422
STEVENS, J., concurring in judgment
It is also beyond question that the Government may choose to
limit advertisements for cigarettes, see 15 U. S. C. §§ 13311340,3
but not for cigars; choose to regulate airline advertising, see
Morales v.
Trans World Airlines, Inc., 504 U. S. 374 (1992), but
not bus advertising; or choose to monitor solicitation by lawyers,
see
Ohralik v.
Ohio State Bar Assn., 436 U. S. 447
(1978), but not by doctors.
All of these cases involved the selective regulation of speech
based on content-precisely the sort of regulation the Court
invalidates today. Such selective regulations are unavoidably
content based, but they are not, in my opinion, "presumptively
invalid." As these many decisions and examples demonstrate, the
prohibition on content-based regulations is not nearly as total as
the
Mosley dictum suggests.
Disregarding this vast body of case law, the Court today goes
beyond even the overstatement in
Mosley and applies the
prohibition on content-based regulation to speech that the Court
had until today considered wholly "unprotected" by the First
Amendment-namely, fighting words. This new absolutism in the
prohibition of content-based regulations severely contorts the
fabric of settled First Amendment law.
Our First Amendment decisions have created a rough hierarchy in
the constitutional protection of speech. Core political speech
occupies the highest, most protected position; commercial speech
and nonobscene, sexually explicit speech are regarded as a sort of
second-class expression; obscenity and fighting words receive the
least protection of all. Assuming that the Court is correct that
this last class of speech is not wholly "unprotected," it certainly
does not follow that fighting words and obscenity receive the
same sort of protection afforded core political speech. Yet
in ruling that proscribable speech cannot be regulated based on
subject
3 See also
Packer Corp. v.
Utah, 285 U. S. 105 (1932)
(Brandeis, J.) (upholding a statute that prohibited the
advertisement of cigarettes on billboards and streetcar
placards).
423
matter, the Court does just that.4 Perversely, this gives
fighting words
greater protection than is afforded
commercial speech. If Congress can prohibit false advertising
directed at airline passengers without also prohibiting false
advertising directed at bus passengers and if a city can prohibit
political advertisements in its buses while allowing other
advertisements, it is ironic to hold that a city cannot regulate
fighting words based on "race, color, creed, religion or gender"
while leaving unregulated fighting words based on "union membership
... or homosexuality."
Ante, at 391. The Court today turns
First Amendment law on its head:
Communication that was once entirely unprotected (and that still
can be wholly proscribed) is now entitled to greater protection
than commercial speech-and possibly greater protection than core
political speech. See
Burson v.
Freeman, 504 U. S. 191, 195, 196
(1992).
Perhaps because the Court recognizes these perversities, it
quickly offers some ad hoc limitations on its newly extended
prohibition on content-based regulations. First, the Court states
that a content-based regulation is valid "[w]hen the basis for the
content discrimination consists entirely of the very reason the
entire class of speech ... is proscribable."
Ante, at 388.
In a pivotal passage, the Court writes:
"[T]he Federal Government can criminalize only those threats of
violence that are directed against the President, see 18 U. S. C. §
871-since the reasons why
4 The Court states that the prohibition on content-based
regulations "applies differently in the context of pros crib able
speech" than in the context of other speech,
ante, at 387,
but its analysis belies that claim. The Court strikes down the St.
Paul ordinance because it regulates fighting words based on subject
matter, despite the fact that, as demonstrated above, we have long
upheld regulations of commercial speech based on subject matter.
The Court's self-description is inapt: By prohibiting the
regulation of fighting words based on its subject matter, the Court
provides the same protection to fighting words as is currently
provided to core political speech.
424
STEVENS, J., concurring in judgment
threats of violence are outside the First Amendment (protecting
individuals from the fear of violence, from the disruption that
fear engenders, and from the possibility that the threatened
violence will occur) have special force when applied to the ...
President." Ibid.
As I understand this opaque passage, Congress may choose from
the set of unprotected speech (all threats) to proscribe only a
subset (threats against the President) because those threats are
particularly likely to cause "fear of violence," "disruption," and
actual "violence."
Precisely this same reasoning, however, compels the conclusion
that St. Paul's ordinance is constitutional. Just as Congress may
determine that threats against the President entail more severe
consequences than other threats, so St. Paul's City Council may
determine that threats based on the target's race, religion, or
gender cause more severe harm to both the target and to society
than other threats. This latter judgment-that harms caused by
racial, religious, and gender-based invective are qualitatively
different from that caused by other fighting words-seems to me
eminently reasonable and realistic.
Next, the Court recognizes that a State may regulate advertising
in one industry but not another because "the risk of fraud (one of
the characteristics ... that justifies depriving [commercial
speech] of full First Amendment protection ... )" in the regulated
industry is "greater" than in other industries.
Ibid. Again,
the same reasoning demonstrates the constitutionality of St. Paul's
ordinance. "[O]ne of the characteristics that justifies" the
constitutional status of fighting words is that such words "by
their very utterance inflict injury or tend to incite an immediate
breach of the peace."
Chap linsky, 315 U. S., at 572.
Certainly a legislature that may determine that the risk of fraud
is greater in the legal
425
trade than in the medical trade may determine that the risk of
injury or breach of peace created by race-based threats is greater
than that created by other threats.
Similarly, it is impossible to reconcile the Court's analysis of
the St. Paul ordinance with its recognition that "a prohibition of
fighting words that are directed at certain persons or groups ...
would be facially valid."
Ante, at 392 (emphasis deleted). A
selective proscription of unprotected expression designed to
protect "certain persons or groups" (for example, a law proscribing
threats directed at the elderly) would be constitutional if it were
based on a legitimate determination that the harm created by the
regulated expression differs from that created by the unregulated
expression (that is, if the elderly are more severely injured by
threats than are the nonelderly). Such selective protection is no
different from a law prohibiting minors (and only minors) from
obtaining obscene publications. See
Ginsberg v.
New
York, 390 U. S.
629 (1968). St. Paul has determined-reasonably in my
judgment-that fighting-word injuries "based on race, color, creed,
religion or gender" are qualitatively different and more severe
than fighting-word injuries based on other characteristics. Whether
the selective proscription of proscribable speech is defined by the
protected target ("certain persons or groups") or the basis of the
harm (injuries "based on race, color, creed, religion or gender")
makes no constitutional difference: What matters is whether the
legislature's selection is based on a legitimate, neutral, and
reasonable distinction.
In sum, the central premise of the Court's ruling-that
"[c]ontent-based regulations are presumptively invalid"has
simplistic appeal, but lacks support in our First Amendment
jurisprudence. To make matters worse, the Court today extends this
overstated claim to reach categories of hitherto unprotected speech
and, in doing so, wreaks havoc in an area of settled law. Finally,
although the Court recog-
426
STEVENS, J., concurring in judgment
nizes exceptions to its new principle, those exceptions
undermine its very conclusion that the St. Paul ordinance is
unconstitutional. Stated directly, the majority's position cannot
withstand scrutiny.
II
Although I agree with much of JUSTICE WHITE'S analysis, I do not
join Part I -A of his opinion because I have reservations about the
"categorical approach" to the First Amendment. These concerns,
which I have noted on other occasions, see,
e. g., New York
v.
Ferber, 458
U. S. 747, 778 (1982) (opinion concurring in judgment), lead me
to find JUSTICE WHITE'S response to the Court's analysis
unsatisfying.
Admittedly, the categorical approach to the First Amendment has
some appeal: Either expression is protected or it is not-the
categories create safe harbors for governments and speakers alike.
But this approach sacrifices subtlety for clarity and is, I am
convinced, ultimately unsound. As an initial matter, the concept of
"categories" fits poorly with the complex reality of expression.
Few dividing lines in First Amendment law are straight and
unwavering, and efforts at categorization inevitably give rise only
to fuzzy boundaries. Our definitions of "obscenity," see,
e. g.,
Marks v.
United States, 430 U. S. 188, 198 (1977)
(STEVENS, J., concurring in part and dissenting in part), and
"public forum," see,
e. g., United States Postal
Service v.
Council of Greenburgh Civic Assns., 453 U. S. 114, 126-131
(1981);
id., at 136-140 (Brennan, J., concurring in
judgment);
id., at 147-151 (Marshall, J., dissenting);
id., at 152-154 (STEVENS, J., dissenting) (all debating the
definition of "public forum"), illustrate this all too well. The
quest for doctrinal certainty through the definition of categories
and subcategories is, in my opinion, destined to fail.
Moreover, the categorical approach does not take seriously the
importance of
context. The meaning of any expression and the
legitimacy of its regulation can only be determined
427
in context.5 Whether, for example, a picture or a sentence is
obscene cannot be judged in the abstract, but rather only in the
context of its setting, its use, and its audience. Similarly,
although legislatures may freely regulate most nonobscene child
pornography, such pornography that is part of "a serious work of
art, a documentary on behavioral problems, or a medical or
psychiatric teaching device" may be entitled to constitutional
protection; the "question whether a specific act of communication
is protected by the First Amendment always requires some
consideration of both its content and its context."
Ferber,
458 U. S., at 778 (STEVENS, J., concurring in judgment); see also
Smith v.
United States, 431 U. S. 291, 311-321 (1977)
(STEVENS, J., dissenting). The categorical approach sweeps too
broadly when it declares that all such expression is beyond the
protection of the First Amendment.
Perhaps sensing the limits of such an all-or-nothing approach,
the Court has applied its analysis less categorically than its
doctrinal statements suggest. The Court has recognized intermediate
categories of speech (for example, for indecent nonobscene speech
and commercial speech) and geographic categories of speech (public
fora, limited public fora, nonpublic fora) entitled to varying
levels of protection. The Court has also stringently delimited the
categories of unprotected speech. While we once declared that
"[l]ibelous utterances [are] not ... within the area of
constitutionally protected speech,"
Beauharnais v.
Illinois, 343
U. S. 250, 266 (1952), our rulings in
New York Times Co.
v.
Sullivan, 376 U. S. 254 (1964);
Gertz v.
Robert
Welch, Inc., 418
U. S. 323 (1974), and
Dun &
Bradstreet, Inc.
v.
Greenmoss Builders, Inc., 472 U. S. 749 (1985),
have substantially qualified this
5 "A word," as Justice Holmes has noted, "is not a crystal,
transparent and unchanged, it is the skin of a living thought and
may vary greatly in color and content according to the
circumstances and the time in which it is used."
Towne v.
Eisner, 245 U.
S. 418, 425 (1918); see also
Jacobellis v.
Ohio,
378 U. S. 184,
201 (1964) (Warren, C. J., dissenting).
428
STEVENS, J., concurring in judgment
broad claim. Similarly, we have consistently construed the
"fighting words" exception set forth in
Chaplinsky narrowly.
See,
e. g., Houston v.
Hill, 482 U. S. 451 (1987);
Lewis v.
New Orleans, 415 U. S. 130 (1974);
Cohen v.
California, 403 U. S. 15 (1971). In
the case of commercial speech, our ruling that "the Constitution
imposes no ... restraint on government [regulation] as respects
purely commercial advertising,"
Valentine v.
Chrestensen, 316 U. S. 52, 54 (1942),
was expressly repudiated in
Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). In
short, the history of the categorical approach is largely the
history of narrowing the categories of unprotected speech.
This evolution, I believe, indicates that the categorical
approach is unworkable and the quest for absolute categories of
"protected" and "unprotected" speech ultimately futile. My analysis
of the faults and limits of this approach persuades me that the
categorical approach presented in Part I-A of JUSTICE WHITE'S
opinion is not an adequate response to the novel "underbreadth"
analysis the Court sets forth today.
III
As the foregoing suggests, I disagree with both the Court's and
part of JUSTICE WHITE'S analysis of the constitutionality of the
St. Paul ordinance. Unlike the Court, I do not believe that all
content-based regulations are equally infirm and presumptively
invalid; unlike JUSTICE WHITE, I do not believe that fighting words
are wholly unprotected by the First Amendment. To the contrary, I
believe our decisions establish a more complex and subtle analysis,
one that considers the content and context of the regulated speech,
and the nature and scope of the restriction on speech. Applying
this analysis and assuming,
arguendo, (as the Court does)
that the St. Paul ordinance is
not overbroad, I conclude
that such a selective, subject-matter regulation on proscribable
speech is constitutional.
429
Not all content-based regulations are alike; our decisions
clearly recognize that some content-based restrictions raise more
constitutional questions than others. Although the Court's analysis
of content-based regulations cannot be reduced to a simple formula,
we have considered a number of factors in determining the validity
of such regulations.
First, as suggested above, the scope of protection provided
expressive activity depends in part upon its content and character.
We have long recognized that when government regulates political
speech or "the expression of editorial opinion on matters of public
importance,"
FCC v.
League of Women Voters of Cal.,
468 U. S. 364,
375-376 (1984), "First Amendment protectio[n] is 'at its zenith,'"
Meyer v.
Grant, 486 U. S. 414, 425
(1988). In comparison, we have recognized that "commercial speech
receives a limited form of First Amendment protection,"
Posadas
de Puerto Rico Associates v.
Tourism Co. of Puerto Rico,
478 U. S. 328,
340 (1986), and that "society's interest in protecting [sexually
explicit films] is of a wholly different, and lesser, magnitude
than [its] interest in untrammeled political debate,"
Young
v.
American Mini Theatres, 427 U. S., at 70; see also
FCC v.
Pacifica Foundation, 438 U. S. 726 (1978). The
character of expressive activity also weighs in our consideration
of its constitutional status. As we have frequently noted, "[t]he
government generally has a freer hand in restricting expressive
conduct than it has in restricting the written or spoken word."
Texas v.
Johnson, 491 U. S. 397, 406
(1989); see also
United States v.
O'Brien, 391 U. S. 367 (1968).
The protection afforded expression turns as well on the context
of the regulated speech. We have noted, for example, that "[a]ny
assessment of the precise scope of employer expression, of course,
must be made in the context of its labor relations setting ...
[and] must take into account the economic dependence of the
employees on their employers."
NLRB v.
Gissel Packing
Co., 395 U. S., at 617. Similarly, the distinctive character of
a university environment, see
430
STEVENS, J., concurring in judgment
Widmar v.
Vincent, 454 U. S. 263, 277-280
(1981) (STEVENS, J., concurring in judgment), or a secondary school
environment, see
Hazelwood School Dist. v.
Kuhlmeier,
484 U. S. 260
(1988), influences our First Amendment analysis. The same is true
of the presence of a "'captive audience[, one] there as a matter of
necessity, not of choice.'''
Lehman v.
Shaker
Heights, 418 U. S., at 302 (citation omitted).6 Perhaps the
most familiar embodiment of the relevance of context is our "fora"
jurisprudence, differentiating the levels of protection afforded
speech in different locations.
The nature of a contested restriction of speech also informs our
evaluation of its constitutionality. Thus, for example, "[a]ny
system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity."
Bantam Books, Inc. v.
Sullivan, 372 U. S. 58, 70 (1963).
More particularly to the matter of content-based regulations, we
have implicitly distinguished between restrictions on expression
based on
subject matter and restrictions based on
viewpoint, indicating that the latter are particularly
pernicious. "If there is a bedrock principle underlying the First
Amendment, it is that the Government may not prohibit the
expression of an idea simply because society finds the idea itself
offensive or disagreeable."
Texas v.
Johnson, 491 U.
S., at 414. "Viewpoint discrimination is censorship in its purest
form,"
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S.
37, 62 (1983) (Brennan, J., dissenting), and requires
particular scrutiny, in part because such regulation often
indicates a legislative effort to skew public debate on an issue,
see,
e. g., Schacht v.
United States, 398 U. S. 58, 63 (1970).
"Especially where ... the legislature's suppression of speech
suggests an attempt
6 Cf.
In re Chase, 468 F.2d
128, 139-140
(CA7 1972) (Stevens, J., dissenting)
(arguing that defendant who, for reasons of religious belief,
refused to rise and stand as the trial judge entered the courtroom
was not subject to contempt proceedings because he was not present
in the courtroom "as a matter of choice").
431
to give one side of a debatable public question an advantage in
expressing its views to the people, the First Amendment is plainly
offended."
First Nat. Bank of Boston v.
Bellotti,
435 U. S. 765,
785-786 (1978). Thus, although a regulation that on its face
regulates speech by subject matter may in some instances
effectively suppress particular viewpoints, see,
e. g.,
Consolidated Edison Co. of N.
Y. v.
Public Servo
Comm'n of N.
Y., 447 U. S. 530, 546-547
(1980) (STEVENS, J., concurring in judgment), in general,
viewpoint-based restrictions on expression require greater scrutiny
than subjectmatter-based restrictions.7
Finally, in considering the validity of content-based
regulations we have also looked more broadly at the scope of the
restrictions. For example, in
Young v.
American Mini
Theatres, 427 U. S., at 71, we found significant the fact that
"what [was] ultimately at stake [was] nothing more than a
limitation on the place where adult films may be exhibited."
Similarly, in
FCC v.
Pacifica Foundation, the Court
emphasized two dimensions of the limited scope of the FCC ruling.
First, the ruling concerned only broadcast material which presents
particular problems because it "confronts the citizen ... in the
privacy of the home"; second, the ruling was not a complete ban on
the use of selected offensive words, but rather merely a limitation
on the times such speech could be broadcast. 438 U. S., at
748-750.
All of these factors play some role in our evaluation of
content-based regulations on expression. Such a multifaceted
analysis cannot be confiated into two dimensions. Whatever the
allure of absolute doctrines, it is just too simple to declare
expression "protected" or "unprotected" or to proclaim a regulation
"content based" or "content neutral."
7 Although the Court has sometimes suggested that
subject-matterbased and viewpoint-based regulations are equally
problematic, see,
e. g., Consolidated Edison Co.
of N Y. V.
Public Servo Comm'n of N Y., 447 U. S., at
537, our decisions belie such claims.
432
STEVENS, J., concurring in judgment
In applying this analysis to the St. Paul ordinance, I assume,
arguendo-as the Court does-that the ordinance regulates
only fighting words and therefore is
not overbroad.
Looking to the content and character of the regulated activity, two
things are clear. First, by hypothesis the ordinance bars only
low-value speech, namely, fighting words. By definition such
expression constitutes "no essential part of any exposition of
ideas, and [is] of such slight social value as a step to truth that
any benefit that may be derived from [it] is clearly outweighed by
the social interest in order and morality."
Chaplinsky, 315
U. S., at 572. Second, the ordinance regulates "expressive conduct
[rather] than ... the written or spoken word."
Texas v.
Johnson, 491 U. S., at 406.
Looking to the context of the regulated activity, it is again
significant that the ordinance (by hypothesis) regulates
only fighting words. Whether words are fighting words is
determined in part by their context. Fighting words are not words
that merely cause offense; fighting words must be directed at
individuals so as to "by their very utterance inflict injury." By
hypothesis, then, the St. Paul ordinance restricts speech in
confrontational and potentially violent situations. The case at
hand is illustrative. The cross burning in this case-directed as it
was to a single African-American family trapped in their home-was
nothing more than a crude form of physical intimidation. That this
cross burning sends a message of racial hostility does not
automatically endow it with complete constitutional
protection.8
8 The Court makes much of St. Paul's description of the
ordinance as regulating "a message."
Ante, at 393. As
always, however, St. Paul's argument must be read in context:
"Finally, we ask the Court to reflect on the 'content' of the
'expressive conduct' represented by a 'burning cross.' It is no
less than the first step in an act of racial violence. It was and
unfortunately still is the equivalent of [the] waving of a knife
before the thrust, the pointing of a gun before it is fired, the
lighting of the match before the arson, the hanging of the noose
before the lynching. It is not a political statement, or even
433
Significantly, the St. Paul ordinance regulates speech not on
the basis of its subject matter or the viewpoint expressed, but
rather on the basis of the
harm the speech causes. In this
regard, the Court fundamentally misreads the St. Paul ordinance.
The Court describes the St. Paul ordinance as regulating expression
"addressed to one of [several] specified disfavored
topics,"
ante, at 391 (emphasis supplied), as policing "disfavored
subjects," ibid. (emphasis supplied), and as "prohibit[ing]
... speech solely on the basis of the
subjects the speech
addresses,"
ante, at 381 (emphasis supplied). Contrary to
the Court's suggestion, the ordinance regulates only a subcategory
of expression that causes
injuries based on "race, color,
creed, religion or gender," not a subcategory that involves
discussions that concern those characteristics.9 The
ordinance, as construed by the Court, criminalizes expression that
"one knows ... [by its very utterance inflicts injury on] others on
the basis of race, color, creed, religion or
a cowardly statement of hatred. It is the first step in an act
of assault. It can be no more protected than holding a gun to a
victim['s] head. It is perhaps the ultimate expression of 'fighting
words.''' App. to Brief for Petitioner
C-6.
9 The Court contends that this distinction is "wordplay,"
reasoning that "[w]hat makes [the harms caused by race-based
threats] distinct from [the harms] produced by other fighting words
is ... the fact that [the former are] caused by a
distinctive
idea." Ante, at 392-393 (emphasis added). In this way, the
Court concludes that regulating speech based on the injury it
causes is no different from regulating speech based on its subject
matter. This analysis fundamentally miscomprehends the role of
"race, color, creed, religion [and] gender" in contemporary
American society. One need look no further than the recent social
unrest in the Nation's cities to see that race-based threats may
cause more harm to society and to individuals than other threats.
Just as the statute prohibiting threats against the President is
justifiable because of the place of the President in our social and
political order, so a statute prohibiting race-based threats is
justifiable because of the place of race in our social and
political order. Although it is regrettable that race occupies such
a place and is so incendiary an issue, until the Nation matures
beyond that condition, laws such as St. Paul's ordinance will
remain reasonable and justifiable.
434
STEVENS, J., concurring in judgment
gender." In this regard, the ordinance resembles the child
pornography law at issue in
Ferber, which in effect singled
out child pornography because those publications caused far greater
harms than pornography involving adults.
Moreover, even if the St. Paul ordinance did regulate fighting
words based on its subject matter, such a regulation would, in my
opinion, be constitutional. As noted above, subject-matter-based
regulations on commercial speech are widespread and largely
unproblematic. As we have long recognized, subject-matter
regulations generally do not raise the same concerns of government
censorship and the distortion of public discourse presented by
viewpoint regulations. Thus, in upholding subject-matter
regulations we have carefully noted that viewpoint-based
discrimination was not implicated. See
Young v.
American
Mini Theatres, 427 U. S., at 67 (emphasizing "the need for
absolute neutrality by the government," and observing that the
contested statute was not animated by "hostility for the point of
view" of the theaters);
FCC v.
Pacifica Foundation,
438 U. S., at 745-746 (stressing that "government must remain
neutral in the marketplace of ideas"); see also
FCC v.
League of Women's Voters of Cal., 468 U. S., at 412-417
(STEVENS, J., dissenting);
Metromedia, Inc. v.
San
Diego, 453 U. S.
490,554-555 (1981) (STEVENS, J., dissenting in part). Indeed,
some subjectmatter restrictions are a functional necessity in
contemporary governance: "The First Amendment does not require
States to regulate for problems that do not exist."
Burson
Contrary to the suggestion of the majority, the St. Paul
ordinance does
not regulate expression based on viewpoint.
The Court contends that the ordinance requires proponents of racial
intolerance to "follow the Marquis of Queensberry rules" while
allowing advocates of racial tolerance to "fight freestyle." The
law does no such thing.
435
The Court writes:
"One could hold up a sign saying, for example, that all
'anti-Catholic bigots' are misbegotten; but not that all 'papists'
are, for that would insult and provoke violence 'on the basis of
religion.'" Ante, at 391-392.
This may be true, but it hardly proves the Court's point. The
Court's reasoning is asymmetrical. The response to a sign saying
that "all [religious] bigots are misbegotten" is a sign saying that
"all advocates of religious tolerance are misbegotten." Assuming
such signs could be fighting words (which seems to me extremely
unlikely), neither sign would be banned by the ordinance for the
attacks were not "based on ... religion" but rather on one's
beliefs about tolerance. Conversely (and again assuming such signs
are fighting words), just as the ordinance would prohibit a Muslim
from hoisting a sign claiming that all Catholics were misbegotten,
so the ordinance would bar a Catholic from hoisting a similar sign
attacking Muslims.
The St. Paul ordinance is evenhanded. In a battle between
advocates of tolerance and advocates of intolerance, the ordinance
does not prevent either side from hurling fighting words at the
other on the basis of their conflicting ideas, but it does bar
both sides from hurling such words on the basis of the
target's "race, color, creed, religion or gender." To extend the
Court's pugilistic metaphor, the St. Paul ordinance simply bans
punches "below the belt"
by either party. It does not,
therefore, favor one side of any debate.10
10 Cf.
FCC v.
League of Women Voters of Cal.,
468 U. S. 364,
418 (1984) (STEVENS, J., dissenting) ("In this case ... the
regulation applies ... to a defined class of ... licensees [who]
represent heterogenous points of view. There is simply no sensible
basis for considering this regulation a viewpoint restriction--or
... to condemn it as 'content-based'-because it applies equally to
station owners of all shades of opinion").
436
STEVENS, J., concurring in judgment
Finally, it is noteworthy that the St. Paul ordinance is, as
construed by the Court today, quite narrow. The St. Paul ordinance
does not ban all "hate speech," nor does it ban, say, all cross
burnings or all swastika displays. Rather it only bans a
subcategory of the already narrow category of fighting words. Such
a limited ordinance leaves open and protected a vast range of
expression on the subjects of racial, religious, and gender
equality. As construed by the Court today, the ordinance certainly
does not" 'rais[e] the specter that the Government may effectively
drive certain ideas or viewpoints from the marketplace.'"
Ante, at 387. Petitioner is free to burn a cross to announce
a rally or to express his views about racial supremacy, he may do
so on private property or public land, at day or at night, so long
as the burning is not so threatening and so directed at an
individual as to "by its very [execution] inflict injury." Such a
limited proscription scarcely offends the First Amendment.
In sum, the St. Paul ordinance (as construed by the Court)
regulates expressive activity that is wholly proscribable and does
so not on the basis of viewpoint, but rather in recognition of the
different harms caused by such activity. Taken together, these
several considerations persuade me that the St. Paul ordinance is
not an unconstitutional content-based regulation of speech. Thus,
were the ordinance not overbroad, I would vote to uphold it.
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