Lead Opinion
delivered the opinion of the Court.
In the predawn hours of June 21,1990, petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been pun
“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.
HH
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,
We have sometimes said that these categories of expression are “not within the area of constitutionally protected speech,” Roth, supra, at 483; Beauharnais, supra, at 266; Chaplinsky, supra, at 571-572, or that the “protection of the First Amendment does not extend” to them, Bose Corp. v. Consumers Union of United States, Inc.,
Our cases surely do not establish the proposition that the First Amendment imposes no obstacle whatsoever to regulation of particular instances of such proseribable expression, so that the government “may regulate [them] freely,” post, at 400 (White, J., concurring in judgment). That would mean that a city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well.
The proposition that a particular instance of speech can be proseribable 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,
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 “non-speech” 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,
Even the prohibition against content discrimination that we assert the First Amendment requires is not absolute. It applies differently in the context of proseribable 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,
When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: A State might choose to prohibit only that obscenity which is the most patently offensive in its '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,
Another valid basis for according differential treatment to even a content-defined subclass of proseribable speech is that the subclass happens to be associated with particular “secondary effects” of the speech, so that the regulation is “justified without reference to the content of the... speech,” Renton v. Playtime Theatres, Inc.,
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,
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,
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— aspersions upon a person’s mother, for example — would seemingly be usable ad libitum in the placards of those arguing in favor of racial, colorj 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-
What we have here, it must be emphasized, is not a prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause); but rather, a prohibition of fighting words that contain (as the Minnesota Supreme Court repeatedly emphasized) messages of “bias-motivated” hatred and in particular, as applied to this case, messages “based on virulent notions of racial supremacy.”
Despite the fact that the Minnesota Supreme Court and St. Paul acknowledge that the ordinance is directed at expression of group hatred, Justice Stevens suggests that this “fundamentally misreads” the ordinance. Post, at 438. It is directed, he claims, not to speech of a particular content, but to particular “injur[ies]” that are “qualitatively different” from other injuries. Post, at 424. This is wordplay. What makes the anger, fear, sense of dishonor, etc., produced by violation of this ordinance distinct from the anger, fear, sense of dishonor, etc., produced by other fighting words is
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 proseribable. As explained earlier, see supra, at 386, the reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression — it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fight
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.,
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,
* * *
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.
Notes
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); § 609.568 (arson) (providing for up to five years and a $10,000 fine, depending on the value of the property intended to be damaged); § 609.695 (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).
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.
Contrary to Justice White’s suggestion, post, at 397-398, n. 1, petitioner’s claim is “fairly included” within the questions presented in the petition for certiorari, see this Court’s Rule 14.1(a). It was clear from the petition and from petitioner’s other filings in this Court (and in the courts below) that his assertion that the St. Paul ordinance “violat[es] over-breadth ... principles of the First Amendment,” Pet. for Cert, i, was not
Justice White concedes that a city council cannot prohibit only those legally obscene works that contain criticism of the city government, post, at 406, but asserts that to be the consequence, not of the First Amendment, but of the Equal Protection Clause. Such content-based discrimination would not, he asserts, “be rationally related to a legitimate government interest.” Ibid. But of course the only reason that government interest is not a “legitimate” one is that it violates the First Amendment. This Court itself has occasionally fused the First Amendment into the Equal Protection Clause in this fashion, but at least with the acknowledgment (which Justice White cannot afford to make) that the First Amendment underlies its analysis. See Police Dept. of Chicago v. Mosley,
Justice Stevens seeks to avoid the point by dismissing the notion of obscene antigovernment speech as “fantastical,” post, at 418, apparently believing that any reference to politics prevents a finding of obscenity. Unfortunately for the purveyors of obscenity, that is obviously false. A shockingly hardcore pornographic movie that contains a model sporting a political tattoo can be found, “taken as a whole, [to] lac[k] serious literary, artistic, political, or scientific value,” Miller v. California,
Although Justice White asserts that our analysis disregards “established principles of First Amendment law,” post, at 416, he cites not a single case (and we are aware of none) that even involved, much less con
Justice Stevens cites a string of opinions as supporting his assertion that “selective regulation of speech based on content” is not presumptively invalid. Post, at 421-422. Analysis reveals, however, that they do not support it. To begin with, three of them did not command a majority of the Court, Young v. American Mini Theatres, Inc.,
St. Paul has not argued in this case that the ordinance merely regulates that subclass of fighting words which is most likely to provoke a violent response. But even if one assumes (as appears unlikely) that the categories selected may be so described, that would not justify selective regulation under a “secondary effects” theory. The only reason why such expressive conduct would be especially correlated with violence is that it conveys a particularly odious message; because the “chain of causation” thus necessarily “run[s] through the persuasive effect of the expressive component” of the conduct, Barnes v. Glen Theatre, Inc.,
A plurality of the Court reached a different conclusion with regard to the Tennessee antieleetioneering statute considered earlier this Term in Burson v. Freeman,
Concurrence Opinion
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 ease could easily be decided within the contours of established First Amendment law by holding, as petitioner argues, that the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expression but expression protected by the First Amendment. See Part II, infra. Instead, “find[ing] it unnecessary” to consider the questions upon which we granted review,
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,
But in the present ease, 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.
A
This Court’s decisions have plainly stated that expression falling within certain limited categories so lacks the values the First Amendment was designed to protect that the Constitution affords no protection to that expression. Chaplinsky v. New Hampshire,
“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id., at 571-572.
See also Bose Corp. v. Consumers Union of United States, Inc.,
Thus, as the majority concedes, see ante, at 383-384, this Court has long held certain discrete categories of expression to be proscribable on the basis of their content. For instance, the Court has held that the individual who falsely shouts “fire” in a crowded theater may not claim the protection of the First Amendment. Schenck v. United States,
Today, however, the Court announces that earlier Courts did not mean their repeated statements that certain categories of expression are “not within the area of constitutionally protected speech.” Roth, supra, at 483. See ante, at 383, citing Beauharnais v. Illinois,
To the contrary, those statements meant precisely what they said: The categorical approach is a firmly entrenched part of our First Amendment jurisprudence. Indeed, the Court in Roth reviewed the guarantees of freedom of expression in effect at the time of the ratification of the Constitution and concluded, “In light of this history, it is apparent that the unconditional phrasing of the First Amendment was
In its decision today, the Court points to “[njothing ... in this Court’s precedents warranting] disregard of this longstanding tradition.” Burson,
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, at 384. It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil, Ferber, supra, at 763-764; but that the government may not treat a subset of that category differently without violating the First Amendment; the content of the subset is by definition worthless and undeserving of constitutional protection.
The majority’s observation that fighting words are “quite expressive indeed,” ante, at 385, is no answer. Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Chaplinsky,
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.
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 and is narrowly drawn to achieve that end/ ” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd.,
“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, at 395-396.
Under the majority’s view, a narrowly drawn, content-based ordinance could never pass constitutional muster if the object of that legislation could be accomplished by banning a wider category of speech. This appears to be a general renunciation of strict scrutiny review, a fundamental tool of First Amendment analysis.
This abandonment of the doctrine is inexplicable in light of our decision in Burson v. Freeman,
Significantly, the statute in Burson did not proscribe all speech near polling places; it restricted only political speech. Id., at 197. The Burson plurality, which included The ChieF Justice and Justice Kennedy, concluded that the distinction between types of speech required application of strict scrutiny, but it squarely rejected the proposition that the legislation failed First Amendment review because it could have been drafted in broader, content-neutral terms:
“States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist .” Id., at 207 (emphasis added).
This reasoning is in direct conflict with the majority’s analysis in the present case, which leaves two options to lawmakers attempting to regulate expressions of violence: (1) enact a sweeping prohibition on an entire class of speech (thereby requiring “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,
As with its rejection of the Court’s categorical analysis, the majority offers no reasoned basis for discarding our firmly established strict scrutiny analysis at this time. The majority appears to believe that its doctrinal revisionism is necessary to prevent our elected lawmakers from prohibiting libel against members of one political party but not another and from enacting similarly preposterous laws. Ante, at 884. The majority is misguided.
Although the First Amendment does not apply to categories of unprotected speech, such as fighting words, the Equal Protection Clause requires that the regulation of unprotected speech be rationally related to a legitimate government interest. A defamation statute that drew distinctions on the basis of political affiliation or “an ordinance prohibiting only those legally obscene works that contain criticism of the city government,” ibid., would unquestionably fail rational-basis review.
C
The Court has patched up its argument with an apparently nonexhaustive list of ad hoc exceptions, in what can be viewed either as an attempt to confine the effects of its decision to the facts of this case, see post, at 415 (Blackmun, J., concurring in judgment), or as an effort to anticipate some of the questions that will arise from its radical revision of First Amendment law.
For instance, if the majority were to give general application to the rule on which it decides this case, today’s decision would call into question the constitutionality of the statute making it illegal to threaten the life of the President. 18 U.S.C. §871. See Watts v. United States,
To save the statute, the majority has engrafted the following exception onto its newly announced First Amendment rule: Content-based distinctions may be drawn within an unprotected category of speech if the basis for the distinctions is “the very reason the entire class of speech at issue is proscribable.” Ante, at 388. Thus, the argument goes, the statute making it illegal to threaten the life of the President is constitutional, “since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President.” Ibid.
The exception swallows the majority’s rule. Certainly, it should apply to the St. Paul ordinance, since “the reasons why [fighting words] are outside the First Amendment. . . have special force when applied to [groups that have historically been subjected to discrimination].”
To avoid the result of its own analysis, the Court suggests that fighting words are simply a mode of communication, rather than a content-based category, and that the St. Paul ordinance has not singled out a particularly objectionable mode of communication. Ante, at 386,393. Again, the majority confuses the issue. A prohibition on fighting words is not a time, place, or manner restriction; it is a ban on a class of speech that conveys an overriding message of personal injury and imminent violence, Chaplinsky,
As its second exception, the Court posits that certain content-based regulations will survive under the new regime if the regulated subclass “happens to be associated with particular ‘secondary effects’ of the speech . . .,” ante, at 389, which the majority treats as encompassing instances in which “words can... violate laws directed not against speech but against conduct. . . ,” ibid.
Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate “because of [an] individual’s race, color, religion, sex, or national origin,” 42 U. S. C. § 2000e-2(a)(l), and the regulations covering hostile workplace claims forbid “sexual harassment,” which includes “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that create “an intimidating, hostile, or offensive working environment,” 29 CFR § 1604.11(a) (1991). The regulation does not prohibit workplace harassment generally; it focuses on what the majority would characterize as the “disfavored topi[e]” of sexual harassment. Ante, at 391. In this way, Title VII is similar to the St. Paul ordinance that the majority condemns because it “impose[sJ special prohibitions on those speakers who express views on disfavored subjects.” Ibid. Under the broad principle the Court uses to decide the present ease,
Hence, the majority’s second exception, which the Court indicates would insulate a Title VII hostile work environment claim from an underinclusiveness challenge because “sexually derogatory ‘fighting words’... may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices.” Ante, at 389. But application of this exception to a hostile work environment claim does not hold up under close examination.
First, the hostile work environment regulation is not keyed to the presence or absence of an economic quid pro quo, Meritor Savings Bank, F. S. B. v. Vinson, 477 U. S. 57, 65 (1986), but to the impact of the speech on the victimized worker. Consequently, the regulation would no more fall within a secondary effects exception than does the St. Paul ordinance. Ante, at 394. Second, the majority’s focus on the statute’s general prohibition on discrimination glosses over the language of the specific regulation governing hostile working environment, which reaches beyond any “incidental” effect on speech. United States v. O’Brien,
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 deci-sional theory. This final exception would apply in cases in which “there is no realistic possibility that official suppression of ideas is afoot.” Ante, at 390. As I have demon
As I see it, the Court’s theory does not work and will do nothing more than confuse the law. Its selection of this ease 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.
HH ] — I
Although I disagree with the Court s analysis, I do agree with its conclusion: The St. Paul ordinance is unconstitutional. However, I would decide the case on overbreadth grounds.
We have emphasized time and again that overbreadth doctrine is an exception to the established principle that “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma,
However, we have consistently held that, because over-breadth analysis is “strong medicine,” it may be invoked to strike an entire statute only when the overbreadth of the statute is not only “real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep,” Broad
Petitioner contends that the St. Paul ordinance is not susceptible to a narrowing construction and that the ordinance therefore should be considered as written, and not as construed by the Minnesota Supreme Court. Petitioner is wrong. Where a state court has interpreted a provision of state law, we cannot ignore that interpretation, even if it is not one that we would have reached if we were construing the statute in the first instance. Ibid.; Kolender v. Lawson,
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.
I agree with petitioner that the ordinance is invalid on its face. Although the ordinance as construed reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that — however repugnant — is shielded by the First Amendment.
In attempting to narrow the scope of the St. Paul antibias ordinance, the Minnesota Supreme Court relied upon two of the categories of speech and expressive conduct that fall outside the First Amendment’s protective sphere: words that incite “imminent lawless action,” Brandenburg v. Ohio,
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 “injúr[ies]” inflicted by the expression that St. Paul sought to regulate. Indeed, the Minnesota court emphasized (tracking the language of the ordinance) that “the ordinance censors only those displays that one knows or should know will create anger, alarm or resentment based on racial, ethnic, gender or religious bias.” In re Welfare of R. A. V.,
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,
In the First Amendment context, “[e]rrminal 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,
Today, the Court has disregarded two established principles of First Amendment law without providing a coherent replacement theory. Its decision is an arid, doctrinaire interpretation, driven by the frequently irresistible impulse of judges to tinker with the First Amendment. The decision is mischievous at best and will surely confuse the lower courts. I join the judgment, but not the folly of the opinion.
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 over-broad content-based restraint of expression be saved by a limiting construction, like that used to save the vague and overbroad content-neutral laws, restricting its application to 'fighting words’ or ‘imminent lawless action?’” Pet. for Cert. i.
It has long been the rule of this Court that “[o]nly the questions set forth in the petition, or fairly included therein, will be considered by the Court.” This Court's Rule 14.1(a). This Rule has served to focus the issues presented for review. But the majority reads the Rule so expansively that any First Amendment theory would appear to be “fairly included” within the questions quoted above.
Contrary to the impression the majority attempts to create through its selective quotation of petitioner’s briefs, see ante, at 381-382, n. 3, petitioner did not present to this Court or the Minnesota Supreme Court anything approximating the novel theory the majority adopts today. Most certainly petitioner did not “reiterat[e]” such a claim at argument; he responded to a question from the bench, Tr. of Oral Arg. 8. Previously, this Court has shown the restraint to refrain from deciding cases on the basis*398 of its own theories when they have not been pressed or passed upon by a state court of last resort. See, e. g., Illinois v. Gates,462 U. S. 213 , 217-224 (1983).
Given this threshold issue, it is my view that the Court lacks jurisdiction to decide the case on the majority rationale. Cf. Arkansas Electric Cooperative Corp. v. Arkansas Pub. Serv. Comm’n,461 U. S. 375 , 382, n. 6 (1983). Certainly the preliminary jurisdictional and prudential concerns are sufficiently weighty that we would never have granted certiorari had petitioner sought review of a question based on the majority’s decisional theory.
“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.,
The assortment of exceptions the Court attaches to its rule belies the majority’s claim, see ante, at 387, that its new theory is truly concerned with content discrimination. See Part I-C, infra (discussing the exceptions).
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,
The majority relies on Boos v. Barry,
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, at 384-385.
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.,
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.
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.,
The majority is mistaken in stating that a ban on obscene works critical of government would fail equal protection review only because the ban would violate the First Amendment. Ante, at 384-385, n. 4. While decisions such as Police Dept. of Chicago v. Mosley,
Indeed, such a law is content based in and of itself because it distinguishes between threatening and nonthreatening speech.
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,
Petitioner can derive no support from our statement in Virginia v. American Booksellers Assn., Inc.,
Although the First Amendment protects offensive speech, Johnson v. Texas,
Concurrence Opinion
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 advertising the level of protection customarily granted political speech. If we are forbidden to categorize, as the Court has done here, we shall reduce protection across the board. It is sad that in its effort to reach a satisfying result in this case, the Court is willing to weaken First Amendment protections.
In the second instance is the possibility that this case will not significantly alter First Amendment jurisprudence but, instead, will be regarded as an aberration — a case where the Court manipulated doctrine to strike down an ordinance whose premise it opposed, namely, that racial threats and verbal assaults are of greater harm than other fighting words. I fear that the Court has been distracted from its
I see no First Amendment values that are compromised by a law that prohibits hoodlums from driving minorities out of their homes by burning crosses on their lawns, but I see great harm in preventing the people of Saint Paul from specifically punishing the race-based fighting words that so prejudice their community.
I coneur 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.
Concurrence Opinion
Justice Stevens,
concurring in the
judgment.
Conduct that creates special risks or causes special harms may be prohibited by special rules. Lighting a fire near an ammunition dump or a gasoline storage tank is especially dangerous; such behavior may be punished more severely than burning trash in a vacant lot. Threatening someone because of her race or religious beliefs may cause particularly severe trauma or touch off a riot, and threatening a high public official may cause substantial social disruption; such threats may be punished more severely than threats against someone based on, say, his support of a particular athletic team. There are legitimate, reasonable, and neutral justifications for such special rules.
This case involves the constitutionality of one such ordinance. Because the regulated conduct has some communicative content — a message of racial, religious, or gender hostility — the ordinance raises two quite different First Amendment questions. Is the ordinance “overbroad” be
In answering these questions, my colleagues today wrestle with two broad principles: first, that certain “categories of expression [including ‘fighting words’] are ‘not within the area of constitutionally protected speech,”’ ante, at 400 (White, J., concurring in judgment); and second, that “[e]ontent-based regulations [of expression] are presumptively invalid,” ante, at 382 (majority opinion). Although in past opinions the Court has repeated both of these maxims, it has — quite rightly — adhered to neither with the absolutism suggested by my colleagues. Thus, while I agree that the St. Paul ordinance is unconstitutionally overbroad for the reasons stated in Part II of Justice White’s opinion, I write separately to suggest how the allure of absolute principles has skewed the analysis of both the majority and Justice White’s opinions.
I
Fifty years ago, the Court articulated a categorical approach to First Amendment jurisprudence.
“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire,315 U. S. 568 , 571-572 (1942).
We have, as Justice White observes, often described such categories of expression as “not within the area of constitutionally protected speech.” Roth v. United States,
As an initial matter, the Court’s revision of the categorical approach seems to me something of an adventure in a doctrinal wonderland, for the concept of “obscene antigovernment” speech is fantastical. The category of the obscene is very narrow;’to be obscene, expression must be found by the trier of fact to “appea[l] to the prurient interest,... depie[t] or deserib[e], in a patently offensive way, sexual conduct, [and], taken as a whole, lac[k] serious literary, artistic, 'political, or scientific value.” Miller v. California,
The Court attempts to bolster its argument by likening its novel analysis to that applied to restrictions on the time, place, or manner of expression or on expressive conduct. It is true that loud speech in favor of the Republican Party can be regulated because it is loud, but not because it is 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 anal
I am, however, even more troubled by the second step of the Court’s analysis — namely, its conclusion that the St. Paul ordinance is an unconstitutional content-based regulation of speech. Drawing on broadly worded dicta, the Court establishes a near-absolute ban on content-based regulations of expression and holds that the First Amendment prohibits the regulation of fighting words by subject matter. Thus, while the Court rejects the “all-or-nothing-at-all” nature of the categorical approach, ante, at 384, it promptly embraces an absolutism of its own: Within a particular “proscribable” category of expression, the Court holds, a government must either proscribe all speech or no speech at all.
This is true at every level of First Amendment law. In broadest terms, our entire First Amendment jurisprudence creates a regime based on the content of speech. The scope of the First Amendment is determined by the content of expressive activity: Although the First Amendment broadly protects “speech,” it does not protect the right to “fix prices, breach contracts, make false warranties, place bets with bookies, threaten, [or] extort.” Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 270 (1981). Whether an agreement among competitors is a violation of the Sherman Act or protected activity under the Noerr-Pennington doctrine
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,
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 ease law, the Court today goes beyond even the overstatement in Mosley and applies the prohibition on content-based regulation to speech that the Court had until today considered wholly “unprotected” by the First Amendment — namely, fighting words. This new absolutism in the prohibition of content-based regulations severely contorts the fabric of settled First Amendment law.
Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and fighting words receive the least protection of all. Assuming that the Court is correct that this last class of speech is not wholly “unprotected,” it certainly does not follow that fighting words and obscenity receive the same sort of protection afforded core political speech. Yet in ruling that proseribable speech cannot be regulated based on subject
Perhaps because the Court recognizes these perversities, it quickly offers some ad hoe limitations on its newly extended prohibition on content-based regulations. First, the Court states that a content-based regulation is valid “[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech ... is proscribable.” Ante, at 388. In a pivotal passage, the Court writes:
“[T]he Federal Government can criminalize only those threats of violence that are directed against the President, see 18 U. S. C. § 871 — since the reasons why*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 by racial, religious, and gender-based invective are qualitatively different from that caused by other fighting words — seems to me eminéntly 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. “[Q]ne of the characteristics that justifies” the constitutional status of fighting words is that such words “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky,
Similarly, it is impossible to reconcile the Court’s analysis of the St. Paul ordinance with its recognition that “a prohibition of fighting words that are directed at certain persons or groups ... would be facially valid.” Ante, at 392 (emphasis deleted). A selective proscription of unprotected expression designed to protect “certain persons or groups” (for example, a law proscribing threats directed at the elderly) would be constitutional if it were based on a legitimate determination that the harm created by the regulated expression differs from that created by the unregulated expression (that is, if the elderly are more severely injured by threats than are the nonelderly). Such selective protection is no different from a law prohibiting minors (and only minors) from obtaining obscene publications. See Ginsberg v. New York,
In sum, the central premise of the Court’s ruling — that “[cjontent-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 reeog-
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,
Admittedly, the categorical approach to the First Amendment has some appeal: Either expression is protected or it is not — the categories create safe harbors for governments and speakers alike. But this approach sacrifices subtlety for clarity and is, I am convinced, ultimately unsound. As an initial matter, the concept of “categories” fits poorly with the complex reality of expression. New dividing lines in First Amendment law are straight and unwavering, and efforts at categorization inevitably give rise oiily to fuzzy boundaries. Our definitions of “obscenity,” see, e. g., Marks v. United States,
Moreover, the categorical approach does not take seriously the importance of context. The meaning of any expression and the legitimacy of its regulation can only be determined
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 “[ljibelous utterances [are] not... within the area of constitutionally protected speech,” Beauharnais v. Illinois,
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.
Ill
As the foregoing suggests, I disagree with both the Court’s and part of Justice White’s analysis of the constitutionality of the St. Paul ordinance. Unlike the Court, I do not believe that all content-based regulations are equally infirm and presumptively invalid; unlike Justice White, I do not believe that fighting words are wholly unprotected by the First Amendment. To the contrary, I believe our decisions establish a more complex and subtle analysis, one that considers the content and context of the regulated speech, and the nature and scope of the restriction on speech. Applying this analysis and assuming, arguendo, (as the Court does) that the St. Paul ordinance is not overbroad, I conclude that such a selective, subject-matter regulation on proscribable speech is constitutional.
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.,
The protection afforded expression turns as well on the context of the regulated speech. We have noted, for example, that “[a]ny assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting . .. [and] must take into account the economic dependence of the employees on their employers.” NLRB v. Gissel Packing Co.,
The nature of a contested restriction of speech also informs our evaluation of its constitutionality. Thus, for example, “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan,
Finally, in considering the validity of content-based regulations we have also looked more broadly at the scope of the restrictions. For example, in Young v. American Mini Theatres,
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.”
Looking to the context of the regulated activity, it is again significant that the ordinance (by hypothesis) regulates only fighting words. Whether words are fighting words is determined in part by their context. Fighting words are not words that merely cause offense; fighting words must be directed at individuals so as to “by their very utterance inflict injury.” By hypothesis, then, the St. Paul ordinance restricts speech in confrontational and potentially violent situations. The case at hand is illustrative. The cross burning in this case — directed as it was to a single African-American family trapped in their home — was nothing more than a crude form of physical intimidation. That this cross burning sends a message of racial hostility does not automatically endow it with complete constitutional protection.
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,
Contrary to the suggestion of the majority, the St. Paul ordinance does not regulate expression based on viewpoint. The Court contends that the ordinance requires proponents of racial intolerance to “follow the Marquis of Queensberry rules” while allowing advocates of racial tolerance to “fight freestyle.” The law does no such thing.
“One could hold up a sign saying, for example, that all ‘anti-Catholic bigots’ are misbegotten; but not that all ‘papists’ are, for that would insult and provoke violence ‘on the basis of religion.’ ” Ante, at 391-392.
This may be true, but it hardly proves the Court’s point. The Court’s reasoning is asymmetrical. The response to a sign saying that “all [religious] bigots are misbegotten” is a sign saying that “all advocates of religious tolerance are misbegotten.” Assuming such signs could be fighting words (which seems to me extremely unlikely), neither sign would be banned by the ordinance for the attacks were not “based on . . . religion” but rather on one’s beliefs about tolerance. Conversely (and again assuming such signs are fighting words), just as the ordinance would prohibit a Muslim from hoisting a sign claiming that all Catholics were misbegotten, so the ordinance would bar a Catholic from hoisting a similar sign attacking Muslims.
The St. Paul ordinance is evenhanded. In a battle between advocates of tolerance and advocates of intolerance, the ordinance does not prevént 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.
In sum, the St. Paul ordinance (as construed by the Court) regulates expressive activity that is wholly proseribable and does so not on the basis of viewpoint, but rather in recognition of the different harms caused by such activity. Taken together, these several considerations persuade me that the St. Paul ordinance is not an unconstitutional content-based regulation of speech. Thus, were the ordinance not over-broad, I would vote to uphold it.
The Court disputes this characterization because it has crafted two exceptions, one for “certain media or markets” and the other for content discrimination based upon “the very reason that the entire class of speech at issue is proscribable.” Ante, at 388. These exceptions are, at best, ill defined. The Court does not tell us whether, with respect to the former, fighting words such as cross burning could be proscribed only in certain neighborhoods where the threat of violence is particularly severe, or whether, with respect to the second category, fighting words that create a particular risk of harm (such as a race riot) would be proscribable. The hypothetical and illusory category of these two exceptions persuades me that either my description of the Court’s analysis is accurate or that the Court does not in fact mean much of what it says in its opinion.
See Mine Workers v. Pennington,
See also Packer Corp. v. Utah,
The Court states that the prohibition on content-based regulations “applies differently in the context of proseribable speech” than in the context of other speech, ante, at 387, but its analysis belies that claim. The Court strikes down the St. Paul ordinance because it regulates fighting words based on subject matter, despite the fact that, as demonstrated above, we have long upheld regulations of commercial speech based on subject matter. The Court’s self-description is inapt: By prohibiting the regulation of fighting words based on its subject matter, the Court provides the same protection to fighting words as is currently provided to core political speech.
“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.” Towns v. Eisner,
Cf. In re Chase,
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.,
The Court makes much of St. Paul’s description of the ordinance as regulating “a message.” Ante, at 393. As always, however, St. Paul’s argument must be read in context:
“Finally, we ask the Court to reflect on the‘content’ of the ‘expressive conduct’ represented by a ‘burning cross.’ It is no less than the first step in an act of racial violence. It was and unfortunately still is the equivalent of [the] waving of a knife before the thrust, the pointing of a gun before it is fired, the lighting of the match before the arson, the hanging of the noose before the lynching. It is not a political statement, or even*433 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 victimas] head. It is perhaps the ultimate expression of ‘fighting words.’ ” App. to Brief for Petitioner C-6.
The Court contends that this distinction is “wordplay,” reasoning that “[w]hat makes [the harms caused by race-based threats] distinct from [the harms] produced by other fighting words is ... the fact that [the former are] caused by a distinctive idea.” Ante, at 392-393 (emphasis added). In this way, the Court concludes that regulating speech based on the injury it causes is no different from regulating speech based on its subject matter. This analysis fundamentally miscomprehends the role of “race, color, creed, religion [and] gender” in contemporary American society. One need look no further than the recent social unrest in the Nation’s cities to see that race-based threats may cause more harm to society and to individuals than other threats. Just as the statute prohibiting threats against the President is justifiable because of the place of the President in our social and political order, so a statute prohibiting race-based threats is justifiable because of the place of race in our social and political order. Although it is regrettable that race occupies such a place and is so incendiary an issue, until the Nation matures beyond that condition, laws such as St. Paul’s ordinance will remain reasonable and justifiable.
Cf. FCC v. League of Women Voters of Cal.,