R. A. V., PETITIONER v. CITY OF ST. PAUL, MINNESOTA
No. 90-7675
SUPREME COURT OF THE UNITED STATES
505 U.S. 377; 112 S. Ct. 2538; 120 L. Ed. 2d 305; 60 U.S.L.W.
4667; 92 Cal. Daily Op. Service 5299; 92 Daily Journal DAR 8395; 6 Fla. Law
W. Fed. S 479
December 4, 1991, Argued
June 22, 1992, Decided
PRIOR HISTORY:
[***1] ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MINNESOTA.
DISPOSITION:
464 N. W. 2d 507, reversed and remanded.
SYLLABUS: 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,
[***2] 315 U.S. 568, 572, 86 L. Ed. 1031, 62 S. Ct. 766, 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. V.'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 nonproscribable
message they contain. Thus
[***3] the
regulation of
"fighting words" may not be based on non-proscribable 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.
(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
[***4] 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
proscribable, it is not aimed only at the
"secondary effects" of speech within the meaning of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925, 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.
COUNSEL: 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 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.
JUDGES: 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
[***5] in the judgment, in Part I of which WHITE and BLACKMUN, JJ., joined, post, p.
416.
OPINIONBY: JUSTICE
SCALIA
OPINION:
[*379]
[**2541] 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
punished
[*380] under any of a number of laws, n1 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:
[***6]
"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. n2 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. V.,
464 N.W.2d 507, 510 (Minn. 1991) (citing
Chaplinsky
[*381] v. New Hampshire,
[***7] 315 U.S. 568, 572, 86 L. Ed. 1031, 62 S. Ct. 766 (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.
[**2542] We granted certiorari,
501 U.S. 1204 (1991).
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n1 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).
n2 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.
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I
[1A]
[2]
[3A]
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, 92 L. Ed. 2d 266, 106 S. Ct. 2968 (1986);
New York v. Ferber, 458 U.S. 747, 769, n.24, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982);
Terminiello v. Chicago, 337 U.S. 1, 4, 93 L. Ed. 1131, 69 S. Ct. 894 (1949). Accordingly,
[***8] 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, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (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. n3
[3B]
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n3 Contrary to JUSTICE WHITE's suggestion,
post,
505 U.S. 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
"violates
overbreadth . . . principles of the
First Amendment," Pet. for Cert. i, was
not 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, 15-16. 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. Serv. Comm'n, 461 U.S. 375, 382, n.6, 76 L. Ed. 2d 1, 103 S. Ct. 1905 (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, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982); see generally R. Stern, E. Gressman,
& S. Shapiro, Supreme Court
Practice 361 (6th ed. 1986).
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[*382]
[***9]
[4A]
[5A]
The
First Amendment generally prevents government from proscribing speech, see,
e. g.,
Cantwell v. Connecticut, 310 U.S. 296, 309-311, 84 L. Ed. 1213, 60 S. Ct. 900 (1940), or even
expressive conduct, see,
e. g.,
Texas v. Johnson, 491 U.S. 397, 406, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (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, 116 L. Ed. 2d 476, 112 S. Ct. 501 (1991);
id., at 124 (KENNEDY, J., concurring in judgment);
Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 536, 65 L. Ed. 2d 319, 100 S. Ct. 2326 (1980);
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972). From 1791 to the present, however, our society, like other free but civilized
societies, has permitted restrictions upon the content of
[**2543] speech in a
[*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, 315 U.S. at 572. We have recognized that
"the freedom of speech" referred to by the
First Amendment does not include a
[***10] freedom to disregard these traditional limitations. See,
e. g.,
Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957) (obscenity);
Beauharnais v. Illinois, 343 U.S. 250, 96 L. Ed. 919, 72 S. Ct. 725 (1952) (defamation);
Chaplinsky v. New Hampshire, supra ("'fighting' words"); see generally
Simon & Schuster, 502 U.S. 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, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964);
Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974);
see generally
Milkovich v. Lorain Journal Co., 497 U.S. 1, 13-17, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990), and for
obscenity, see
Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), but a limited
categorical approach has remained an important part of our
First Amendment jurisprudence.
[5B]
We have sometimes said that these categories of expression are
"not within the area of constitutionally protected speech,"
Roth, 352 U.S. at 483;
Beauharnais, supra, at 266;
Chaplinsky, supra, at 571-572, or that the
"protection of the
First Amendment does not extend" to them,
Bose Corp. v. Consumers
[***11] Union of United States, Inc., 466 U.S. 485, 504, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984);
Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 124, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (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.,
[***12] at 775 (O'CONNOR, J., concurring) ("As drafted, New York's statute does not attempt to suppress the communication
of particular ideas").
[5C]
[6A]
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,
505 U.S. 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-at-all approach to
First Amendment protection is at odds with common sense and with our jurisprudence as well. n4
It is
[*385] not true
that
"fighting
words" have at most a
"de
[**2544]
minimis"
expressive content,
ibid., or that their content is
in all respects
"worthless and undeserving of constitutional protection,"
post,
505 U.S. 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
[***13] of ideas."
Chaplinsky, 315 U.S. at 572 (emphasis added).
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n4 JUSTICE WHITE concedes that a city council cannot prohibit only those
legally
obscene works that contain criticism of the city government,
post,
505 U.S. 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, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (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. Brown, 447 U.S. 455, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980). See generally
Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 124, 116 L. Ed. 2d 476, 112 S. Ct. 501 (1991) (KENNEDY, J., concurring in judgment).
[6B]
JUSTICE STEVENS seeks to avoid the point by dismissing the notion of
obscene antigovernment speech as
"fantastical,"
post,
505 U.S. 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 hardcore pornographic movie that
contains a model sporting a political tattoo can be found,
"taken as a whole, [to] lack serious literary, artistic, political, or scientific value,"
Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (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
505 U.S. at 384. And of course the concept of racist
fighting words is, unfortunately, anything but a
"highly speculative hypothetical,"
post,
505 U.S. at 419.
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[***14]
[7A]
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, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991) (plurality opinion);
id., at 573-574 (SCALIA, J., concurring in judgment);
id., at 581-582 (SOUTER, J., concurring in judgment);
United
[*386] States v. O'Brien, 391 U.S. 367, 376-377, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (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, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989)
[***15] (internal quotation marks omitted); see also
Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (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.
[**2545]
[8A]
[9A]
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, 95 L. Ed. 267, 71 S. Ct. 325 (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
[***16] 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, 101 L. Ed. 2d 420, 108 S. Ct. 2495 (1988) (upholding, against facial challenge, a content-neutral
ban on targeted residential picketing), with
Carey v. Brown, 447 U.S. 455, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980) (invalidating a
ban on residential picketing that exempted labor picketing). n5
[9B]
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n5 Although JUSTICE WHITE asserts that our analysis disregards
"established principles of
First Amendment law,"
post,
505 U.S. at 415, he cites not a single case (and we are aware of none) that even involved, much
less considered 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, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (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.
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[*387]
[***17]
[7B]
The concurrences describe us as
setting forth a new
First Amendment principle that prohibition of constitutionally
proscribable speech cannot be
"underinclusive,"
post,
505 U.S. at 402 (WHITE, J., concurring in judgment) -- a
First Amendment
"absolutism" whereby
"within a particular 'proscribable' category of expression, . . . a government must either
proscribe
all speech or no speech at all,"
post,
505 U.S. 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
[***18] 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, 113 L. Ed. 2d 494, 111 S. Ct. 1438 (1991);
FCC v. League of Women Voters of Cal., 468 U.S. 364, 383-384, 82 L. Ed. 2d 278, 104 S. Ct. 3106 (1984);
Consolidated Edison Co., 447 U.S. at 536;
Police Dept. of Chicago v. Mosley,
[*388] 408 U.S. at 95-98. But content discrimination among various instances of a class of
proscribable speech often does not pose this threat.
[10]
[11]
[12]
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
[**2546] the class. To illustrate: A State might choose
[***19] to prohibit only that
obscenity which is the most patently offensive
in its prurience -- i. 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, 112 L. Ed. 2d 702, 111 S. Ct. 713 (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, 22 L. Ed. 2d 664, 89 S. Ct. 1399 (1969) (upholding the facial validity of
§ 871 because of the
"overwhelming 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
[***20] his policy on aid to inner cities. And to take a final example (one mentioned
by JUSTICE STEVENS,
post,
505 U.S. at 421-422), 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, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976)) is in its view greater there. Cf.
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 119 L. Ed. 2d 157, 112 S. Ct. 2031 (1992) (state
regulation of airline advertising);
Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (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.
[13A]
[14]
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
[***21] Theatres, Inc., 475 U.S. 41, 48, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986) (quoting, with emphasis,
Virginia State Bd. of Pharmacy, 425 U.S. at 771); see also
Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, n.34, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (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, 425-432, 107 L. Ed. 2d 851, 110 S. Ct. 768 (1990);
O'Brien, 391 U.S. at 376-377. Thus, for example, sexually derogatory
"fighting
[***22] 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
[**2547] shielded from
regulation merely because they express a discriminatory idea or philosophy.
[4B]
[15]
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, 69 L. Ed. 2d 800, 101 S. Ct. 2882 (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
[***23] 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. n6
[4C]
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 JUSTICE STEVENS cites a string of opinions as supporting his assertion that
"selective
regulation of speech based on content" is not presumptively
invalid.
Post, 505 U.S. 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, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976) (plurality opinion);
FCC v. Pacifica Foundation, 438 U.S. 726, 744-748, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978) (plurality opinion);
Lehman v. Shaker Heights, 418 U.S. 298, 41 L. Ed. 2d 770, 94 S. Ct. 2714 (1974) (plurality opinion), and two others did not even discuss the
First Amendment,
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 119 L. Ed. 2d 157, 112 S. Ct. 2031 (1992);
Jacob Siegel Co. v. FTC, 327 U.S. 608, 90 L. Ed. 888, 66 S. Ct. 758 (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 nonpublic forums, see
Lehman, 418 U.S. at 301-304; see also
Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985), or with respect to certain speech by government employees, see
Broadrick v. Oklahoma, 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973); see also
Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564-567, 37 L. Ed. 2d 796, 93 S. Ct. 2537 (1973).
- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
[*391]
[***24]
II
[1B]
[4D]
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,
[***25] 481 U.S. 221, 229-230, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987).
[1C]
In its practical operation, moreover, the
ordinance goes even beyond mere content discrimination, to actual
viewpoint discrimination.
Displays containing some words -- odious 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
gender --
[**2548] aspersions 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-Catholic
[*392] 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.
[1D]
[16]
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
[***26] 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
"it 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, 505 U.S. at 433.
[***27] It is directed, he claims, not to speech of a particular content, but to
particular
"injuries" that are
"qualitatively different" from other
injuries.
Post, 505 U.S. 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
"the
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
[***28] 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-1.
[1E]
[8B]
[17]
[18A]
[19A]
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,
505 U.S. 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
[**2549] 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
[***29] that communicate ideas in a threatening (as opposed to a merely obnoxious)
manner. Rather, it has proscribed
fighting
[*394] 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.
[13B]
[18B]
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, 89 L. Ed. 2d 29, 106 S. Ct. 925 (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,
[***30] 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, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (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.). n7
[18C]
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 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
"runs through the persuasive effect of the
expressive component" of the conduct,
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 586, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991) (SOUTER, J., concurring in judgment), it is clear that the St. Paul
ordinance regulates on the basis of the
"primary" effect of the speech --
i. e., its persuasive (or repellant) force.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*395]
[***31]
[19B]
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.
[1F]
[20]
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
content-based statute,
Leathers v. Medlock, 499 U.S. at 448,
requires that that weapon be employed only where it is
"necessary
[***32] to serve the asserted [compelling] interest,"
Burson v. Freeman, 504 U.S. 191, 199, 119 L. Ed. 2d 5, 112 S. Ct. 1846 (1992) (plurality opinion) (emphasis
[**2550] added);
Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). The existence of adequate content-neutral alternatives thus
"undercuts significantly" any defense of such a statute,
Boos v. Barry, 485 U.S. 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, 504 U.S. at 213 (KENNEDY, J., concurring). See
Boos, 485 U.S. at 324-329; cf.
Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 586-587, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983). The dispositive question in this case, therefore, is whether content
discrimination is reasonably necessary to achieve St. Paul's compelling
[*396] 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
[***33] towards the particular biases thus singled out. n8 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 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, 119 L. Ed. 2d 5, 112 S. Ct. 1846 (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 cases" 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
"the
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, 505 U.S. at 405 (WHITE, J., concurring in judgment);
post,
505 U.S. at 434 (STEVENS, J., concurring in judgment).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
* * *
[***34] 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.
CONCURBY: JUSTICE
WHITE; JUSTICE
BLACKMUN; JUSTICE
STEVENS
CONCUR:
[*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,
"finding it unnecessary" to consider the questions upon which we granted review, n1
ante,
505 U.S. at 381, the
[*398] Court holds the
[**2551]
ordinance facially unconstitutional on a ground
[***35] 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, 119 L. Ed. 2d 5, 112 S. Ct. 1846 (1992), which was joined by two of the five Justices in the majority in the present
case.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 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
"only 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,
505 U.S. 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
"reiterate" 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 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, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (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. Serv. Comm'n, 461 U.S. 375, 382, n.6, 76 L. Ed. 2d 1, 103 S. Ct. 1905 (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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***36] 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, 119 L. Ed. 2d 533, 112 S. Ct. 2251 (1992);
Quill Corp. v. North Dakota, 504 U.S. 298, 119 L. Ed. 2d 91, 112 S. Ct. 1904 (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., 504 U.S. at 783-786;
Quill Corp., 504 U.S. at 317-318.
But in the present case, the majority casts aside long-established
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.
[*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
[***37] affords no protection to that expression.
Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (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
[**2552] 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, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984) (citing
Chaplinsky).
Thus, as the majority concedes, see
ante,
505 U.S. 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, 63 L. Ed. 470, 39 S. Ct. 247 (1919). The Court has concluded that neither child pornography nor
obscenity is protected
[***38] by the
First Amendment.
New York v. Ferber, 458 U.S. 747, 764, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982);
Miller v. California, 413 U.S. 15, 20, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973);
Roth v. United States, 354 U.S. 476, 484-485, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957). And the Court has observed that,
"leaving aside the special considerations when public officials [and public
figures] are the target, a libelous publication is not protected by the
Constitution."
Ferber, 458 U.S. at 763 (citations omitted).
[*400] 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, 315 U.S. at 571-572. We have not departed from this principle, emphasizing repeatedly that,
"within the confines of [these]
given classifications, 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, 458 U.S. at 763-764;
Bigelow v. Virginia, 421 U.S. 809, 819, 44 L. Ed. 2d 600, 95 S. Ct. 2222 (1975). This
categorical approach has provided a principled and narrowly focused means for
distinguishing between expression that the government may regulate freely and
that
[***39] which it may regulate on the basis of content only upon a showing of
compelling need. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2
"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, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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, 354 U.S. at 483. See
ante,
505 U.S. at 383, citing
Beauharnais v. Illinois, 343 U.S. 250, 266, 96 L. Ed. 919, 72 S. Ct. 725 (1952);
Chaplinsky, 315 U.S. at 571-572;
Bose Corp., 466 U.S. at 504;
Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 124, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989). The present Court submits that such clear statements
"must be taken in context" and are not
"literally true."
Ante, 505 U.S. at 383.
To the contrary,
[***40] 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
[*401] not intended to protect every utterance."
354 U.S. at 482-483.
In its decision today, the Court points to
"nothing . . . in this Court's precedents warranting disregard of this
longstanding tradition."
Burson, 504 U.S. at 216
[**2553] (SCALIA, J., concurring in judgment);
Allied-Signal, Inc., 504 U.S. 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
"the government may not regulate use based on hostility -- or favoritism --
[***41] towards the underlying
message expressed."
Ante, 505 U.S. 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-at-all approach to
First Amendment protection is at odds with common sense and with
our jurisprudence as well."
Ante, 505 U.S. 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, 458 U.S. 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,
505 U.S. 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
[***42] speech, without creating the danger of driving
viewpoints from the marketplace. See
ante,
505 U.S. at 387.
[*402] Therefore, the Court's insistence on inventing its brand of
First Amendment underinclusiveness puzzles me. n3 The
overbreadth doctrine has the redeeming virtue of attempting to avoid the chilling of
protected expression,
Broadrick v. Oklahoma, 413 U.S. 601, 612, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973);
Osborne v. Ohio, 495 U.S. 103, 112, n.8, 109 L. Ed. 2d 98, 110 S. Ct. 1691 (1990);
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985);
Ferber, 458 U.S. 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, 458 U.S. at 763-764;
Chaplinsky, 315 U.S. 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."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 The assortment of exceptions the Court attaches to its rule belies the
majority's claim, see
ante,
505 U.S. at 387, that its new theory is truly concerned with content discrimination. See Part
I-C,
infra (discussing the exceptions).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***43] 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. n4 Indeed, by characterizing
fighting words as a form of
"debate",
[**2554]
ante,
505 U.S. at 392, the majority legitimates hate speech as a form of
public discussion.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 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, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (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, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989), to which the
fighting words doctrine, see Part II,
infra, applies.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*403]
[***44]
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, 504 U.S. at 196;
Eu v. San Francisco Cty. Democratic Central Comm., 489 U.S. 214, 222-223, 103 L. Ed. 2d 271, 109 S. Ct. 1013 (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
content-based
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
[***45] 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, 116 L. Ed. 2d 476, 112 S. Ct. 501 (1991) (quoting
Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (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, 505 U.S. 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] limited to the favored topics, for example, would have precisely the same
beneficial effect."
Ante, 505 U.S. 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
[***46] of strict scrutiny review, a fundamental tool of
First Amendment analysis. n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 The majority relies on
Boos v. Barry, 485 U.S. 312, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988), in arguing that the availability of content-neutral alternatives
"'undercuts
significantly'" a claim that
content-based legislation is
"'necessary to serve the asserted [compelling] interest.'"
Ante, 505 U.S. at 395 (quoting
Boos, 485 U.S. at 329, and
Burson v. Freeman, 504 U.S. 191, 199, 119 L. Ed. 2d 5, 112 S. Ct. 1846 (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. Paul lawmakers. 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, 505 U.S. at 384-385.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***47]
This abandonment of the doctrine is inexplicable in light of our decision in
Burson v. Freeman, 504 U.S. 191, 119 L. Ed. 2d 5, 112 S. Ct. 1846 (1992), which was handed down just a month ago. n6 In
Burson, seven of the
[**2555] 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.,
[*405] dissenting). n7 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 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, 116 L. Ed. 2d 476, 112 S. Ct. 501 (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.
n7 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).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***48] 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
[***49] expressions of
violence: (1) enact a sweeping prohibition on an entire class of speech (thereby
requiring
"regulation 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,
[*406] at 395, to achieve the State's
interest in regulating polling place premises. n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 JUSTICE 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
content-based
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, 103 L. Ed. 2d 271, 109 S. Ct. 1013 (1989) (quoting
Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 28 L. Ed. 2d 35, 91 S. Ct. 621 (1971)).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***50] 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, 505 U.S. 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,
[**2556]
"
ibid., would unquestionably fail rational-basis review. n9
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 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, 505 U.S. at 384-385, n.4. While decisions such as
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (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 need not resort to
First Amendment principles to conclude that the sort of improbable legislation the majority
hypothesizes is based on senseless distinctions.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*407]
[***51] 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, 505 U.S. 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,
505 U.S. 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
[***52] 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, 22 L. Ed. 2d 664, 89 S. Ct. 1399 (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 others. n10
[*408] See
ante,
505 U.S. 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 Indeed, such a
law is content based in and of itself because it distinguishes between
threatening and nonthreatening speech.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
To save the statute, the majority has engrafted the following
[***53] 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, 505 U.S. 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
[**2557] a mode of communication, rather than a
content-based category, and that the St. Paul
ordinance has not singled out a particularly objectionable
[***54] mode of communication.
Ante, 505 U.S. 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
[*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,
505 U.S. at 389, which the majority treats as encompassing instances in which
"words can . . . violate laws directed not against speech but against conduct .
. .,"
ibid. n11 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 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, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), present another question that I fear will haunt us and the lower
courts in the aftermath of the majority's opinion.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Title VII of the Civil Rights Act of 1964
[***55] 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
"unwelcome 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 topic" of sexual harassment.
Ante, 505 U.S. at 391. In this way, Title VII is similar to the St. Paul
ordinance that the majority condemns because it
"imposes special prohibitions on those speakers who express views on
disfavored subjects."
Ibid. Under the broad principle the Court uses to decide the present case,
[*410] 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
[***56]
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, 505 U.S. 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, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (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, 505 U.S. 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, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968). If the relationship between the broader statute and specific
[***57]
[**2558]
regulation is sufficient 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, 505 U.S. at 390. As I have demonstrated,
[*411] this case does not concern the official suppression of ideas. See
505 U.S. at 401. The majority discards this notion out of hand.
Ante, 505 U.S. 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.
[***58] 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, 413 U.S. 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, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980);
Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 92 S. Ct. 1103 (1972).
However, we have consistently held that,
[***59] 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,"
Broadrick,
[*412] 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, 96 L. Ed. 2d 500, 107 S. Ct. 2568 (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
[***60] if it is
[**2559] 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, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983);
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, n.5, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982). n12
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n12 Petitioner can derive no support from our statement in
Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 397, 98 L. Ed. 2d 782, 108 S. Ct. 636 (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, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (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.
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[***61] 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.
[*413] See,
e. g.,
Lewis v. New Orleans, 415 U.S. 130, 132-133, 39 L. Ed. 2d 214, 94 S. Ct. 970 (1974);
Gooding, 405 U.S. 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
[***62] lawless action,"
Brandenburg v. Ohio, 395 U.S. 444, 449, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (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
"injuries" 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] therefore understand the court to have ruled that St. Paul may
constitutionally prohibit expression that
"by its very utterance"
[***63] 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, 110 L. Ed. 2d 287, 110 S. Ct. 2404 (1990);
Texas v. Johnson, 491 U.S. 397, 409, 414, 105 L. Ed. 2d 342,
[**2560] 109 S. Ct. 2533 (1989);
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988);
FCC v. Pacifica Foundation, 438 U.S. 726, 745, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978);
Hess v. Indiana, 414 U.S. 105, 107-108, 38 L. Ed. 2d 303, 94 S. Ct. 326 (1973);
Cohen v. California, 403 U.S. 15, 20, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971);
Street v. New York, 394 U.S. 576, 592, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969);
Terminiello v. Chicago, 337 U.S. 1, 93 L. Ed. 1131, 69 S. Ct. 894 (1949).
In the
First Amendment context,
"criminal 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, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1987) (citation omitted). The St. Paul antibias
ordinance is such a law. Although the
ordinance reaches conduct that
[***64] 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, 415 U.S. at 132. n13 The
ordinance is
therefore fatally
overbroad and
invalid on its face.
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n13 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, 101 L. Ed. 2d 420, 108 S. Ct. 2495 (1988);
FCC v. Pacifica Foundation, 438 U.S. 726, 748-749, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978). And expression may be limited when it merges into conduct.
United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968); cf.
Meritor Savings Bank, F. S. B. v. Vinson, 477 U.S. 57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*415] III
Today, the Court has disregarded
[***65] 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
content-based 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
[***66] 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
[**2561] are of greater harm than other
fighting words. I fear that the Court has been distracted from its
[*416] 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
[***67] 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,
[***68] or
gender hostility -- the
ordinance raises two quite different
First Amendment questions. Is the
ordinance
"overbroad" because
[*417] 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,
505 U.S. at 400 (WHITE, J., concurring in judgment); and second, that
"content-based
regulations [of expression] are presumptively
invalid,"
ante,
505 U.S. 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 approach to
First Amendment jurisprudence.
"There are certain well-defined
[***69] 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, 86 L. Ed. 1031, 62 S. Ct. 766 (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, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957).
[*418]
[**2562] 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
[***70] may be
regulated because it is
obscene, but not because it is antigovernment.
Ante, 505 U.S. 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
"appeal to the prurient interest, . . . depict or describe, in a patently
offensive way, sexual conduct, [and], taken as a whole,
lack serious literary, artistic, political, or scientific value."
Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973) (emphasis added).
"Obscene antigovernment" speech, then, is a contradiction in terms: If expression is anti-government, it does not
"lack serious . . . political . . . value" and cannot be
obscene.
The Court attempts to bolster its argument by likening its novel analysis
[***71] 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 pro-Republican; 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 analogies
[*419] 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,
[***72] while the Court rejects the
"all-or-nothing-at-all" nature of the
categorical approach,
ante,
505 U.S. 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. n1 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
[**2563]
First Amendment jurisprudence, and disrupts well-settled principles of
First Amendment law.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 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, 505 U.S. 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*420]
[***73] 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, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (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 else-where, 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,
[***74] 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 doctrine n2 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, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976) (plurality opinion); see also
Musser v. Utah, 333 U.S. 95, 100-103, 92 L. Ed. 562, 68 S. Ct. 397 (1948) (Rutledge, J., dissenting).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 See
Mine Workers v. Pennington, 381 U.S. 657, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1965);
Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*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,
[***75] 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, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), and
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 86 L. Ed. 2d 593, 105 S. Ct. 2939 (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, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978) (plurality opinion), we upheld a restriction on the broadcast of
specific indecent words. In
Lehman v.
[***76] Shaker Heights, 418 U.S. 298, 41 L. Ed. 2d 770, 94 S. Ct. 2714 (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, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973), we
[**2564] 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, 90 L. Ed. 888, 66 S. Ct. 758 (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, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969).
[*422] It is also beyond question that the Government may choose to limit
advertisements for cigarettes, see
15 U. S. C. §§ 1331-1340, n3 but not for cigars; choose to regulate airline advertising, see
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 119 L. Ed. 2d 157, 112 S. Ct. 2031 (1992), but not bus advertising; or choose to monitor solicitation by lawyers, see
Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (1978), but not by doctors.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 See also
Packer Corp. v. Utah, 285 U.S. 105, 76 L. Ed. 643, 52 S. Ct. 273 (1932) (Brandeis, J.) (upholding a statute that prohibited the advertisement of
cigarettes on bill-boards and streetcar placards).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***77] 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
[***78] 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
[*423] matter, the Court does just that. n4 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, 505 U.S. 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,
[**2565] 504 U.S. 191, 195, 196,
[***79] 119 L. Ed. 2d 5, 112 S. Ct. 1846 (1992).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 The Court states that the prohibition on
content-based
regulations
"applies differently in the context of
proscribable speech" than in the context of other speech,
ante,
505 U.S. 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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
"when the basis for the content discrimination consists entirely of the very
reason the entire class of speech . . . is
proscribable."
Ante, 505 U.S. at 388. In
[***80] a pivotal passage, the Court writes:
"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
[*424] 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
[***81] 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.
"One 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."
Chaplinsky, 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
[***82]
fighting words that are directed at certain persons or groups . . . would be facially
valid."
Ante, 505 U.S. 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, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (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
[***83] difference: What matters is whether the legislature's selection is based
[**2566] on a legitimate, neutral, and reasonable distinction.
In sum, the central premise of the Court's ruling -- that
"content-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 recognizes
[*426] 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, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (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
[***84]
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, 51 L. Ed. 2d 260, 97 S. Ct. 990 (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, 69 L. Ed. 2d 517, 101 S. Ct. 2676 (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
[***85] the importance of
context. The meaning of any expression and the legitimacy of its
regulation can only be determined
[*427] in context. n5 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, 52 L. Ed. 2d 324, 97 S. Ct. 1756 (1977) (STEVENS,
J., dissenting). The
categorical approach sweeps too broadly when it declares
[**2567] that all such expression is beyond the protection of the
First Amendment.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5
"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, 62 L. Ed. 372, 38 S. Ct. 158 (1918); see also
Jacobellis v. Ohio, 378 U.S. 184, 201, 12 L. Ed. 2d 793, 84 S. Ct. 1676 (1964) (Warren, C. J., dissenting).
- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
[***86] 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
"libelous utterances [are] not . . . within the area of constitutionally
protected speech,"
Beauharnais v. Illinois, 343 U.S. 250, 266, 96 L. Ed. 919, 72 S. Ct. 725 (1952), our rulings in
New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964);
Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), and
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 86 L. Ed. 2d 593, 105 S. Ct. 2939 (1985), have substantially qualified this
[*428] 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, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1987);
Lewis v. New Orleans, 415 U.S. 130, 39 L. Ed. 2d 214, 94 S. Ct. 970 (1974);
Cohen v. California, 403 U.S. 15,
[***87] 29 L. Ed. 2d 284, 91 S. Ct. 1780 (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, 86 L. Ed. 1262, 62 S. Ct. 920 (1942), was expressly repudiated in
Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (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
[***88] 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, 82 L. Ed. 2d 278, 104 S. Ct. 3106
[***89] (1984),
"First Amendment protection is 'at its zenith,'"
Meyer v. Grant, 486 U.S. 414, 425, 100 L. Ed. 2d 425,
[**2568] 108 S. Ct. 1886 (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, 92 L. Ed. 2d 266, 106 S. Ct. 2968 (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, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978). The character of
expressive activity also weighs in our consideration of its constitutional status. As we
have frequently noted,
"the 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, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989); see also
United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968).
The protection afforded expression turns as well on the context of the
regulated speech. We have noted, for example, that
"any assessment of the precise scope of employer expression, of course, must be
made
[***90] 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]
Widmar v. Vincent, 454 U.S. 263, 277-280, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981) (STEVENS, J., concurring in judgment), or a
secondary school environment, see
Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 98 L. Ed. 2d 592, 108 S. Ct. 562 (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). n6 Perhaps the most familiar embodiment of the relevance
of context is our
"fora" jurisprudence, differentiating the levels of protection afforded speech in
different locations.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 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").
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***91] The nature of a contested restriction
of speech also informs our evaluation of its constitutionality. Thus, for
example,
"any 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, 9 L. Ed. 2d 584, 83 S. Ct. 631 (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, 74 L. Ed. 2d 794, 103 S. Ct. 948 (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, 26 L. Ed. 2d 44, 90 S. Ct. 1555
[***92] (1970).
"Especially where . . . the legislature's suppression of speech suggests an
attempt
[*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, 55 L. Ed. 2d 707, 98 S. Ct. 1407 (1978). Thus, although a
regulation that on its face regulates speech by
subject matter may in some
[**2569] instances effectively suppress particular
viewpoints, see,
e. g.,
Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 546-547, 65 L. Ed. 2d 319, 100 S. Ct. 2326 (1980) (STEVENS, J., concurring in judgment), in general, viewpoint-based
restrictions on expression require greater scrutiny than subject-matter-based
restrictions. n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Although the Court has sometimes suggested that subject-matter-based and
viewpoint-based
regulations are equally problematic, see,
e. g.,
Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. at 537, our
decisions belie such claims.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Finally, in considering
[***93] 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 conflated 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."
[*432] In applying this analysis to the St. Paul
ordinance,
[***94] 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
[***95] 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. n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 The Court makes much of St. Paul's
description of the
ordinance as regulating
"a
message."
Ante, 505 U.S. 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 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*433]
[***96]
[**2570] 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,
505 U.S. at 391 (emphasis supplied), as policing
"disfavored
subjects," ibid. (emphasis supplied), and as
"prohibiting . . . speech solely on the basis of the
subjects the speech addresses,"
ante,
505 U.S. 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. n9
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
[*434]
gender." In this regard, the
ordinance resembles the child pornography law at issue in
Ferber, which in effect singled out child pornography
[***97] because those publications caused far greater harms than pornography involving
adults.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 The Court contends that this distinction is
"wordplay," reasoning that
"what 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, 505 U.S. 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***98] 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, 69 L. Ed. 2d 800, 101 S. Ct. 2882 (1981) (STEVENS,
J., dissenting in part). Indeed,
[***99] some subject-matter restrictions are a functional necessity in contemporary
governance:
"The
First Amendment does not require States to regulate for problems that do not exist."
Burson v. Freeman, 504 U.S. at 207.
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
[**2571] 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, 505 U.S. 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
[***100] 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. n10
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 Cf.
FCC v. League of Women Voters of Cal., 468 U.S. 364, 418, 82 L. Ed. 2d 278, 104 S. Ct. 3106 (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").
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*436]
[***101] 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
"'raise the specter that the Government may effectively drive certain ideas or
viewpoints from the marketplace.'"
Ante, 505 U.S. 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
[***102] 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.