R.A.V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992)

JUSTICE SCALIA delivered the opinion of the Court.

[After allegedly burning a cross on a black family's lawn, petitioner R.A.V. was charged under, inter alia, the St. Paul, Minnesota, Bias-Motivated Crime Ordinance, which prohibits the display of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge on the ground that the ordinance was substantially overbroad and impermissibly content based, but the State Supreme Court reversed. It rejected the overbreadth claim because the phrase "arouses anger, alarm or resentment in others" had been construed in earlier state cases to limit the ordinance's reach to "fighting words" within the meaning of this Court's decision in Chaplinsky v. New Hampshire,315 U.S. 568, 572, a category of expression unprotected by the First Amendment. The court also concluded that the ordinance was not impermissibly content based, because it was narrowly tailored to serve a compelling governmental interest in protecting the community against bias-motivated threats to public safety and order.  The U.S. Supreme Court reversed.]

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 [505 U.S. 377, 380] under any of a number of laws,1 one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis.Code 292.02 (1990), which provides:

"Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."

In construing the St. Paul ordinance, we are bound by the construction given to it by the Minnesota court. *** Accordingly, we accept the Minnesota Supreme Court's authoritative statement that the ordinance reaches only those expressions that constitute "fighting words" within the meaning of Chaplinsky. 464 N.W.2d, at 510-511. Petitioner and his amici urge us to modify the scope of the Chaplinsky formulation, thereby invalidating the ordinance as "substantially overbroad," Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). We find it unnecessary to consider this issue. Assuming, arguendo, that all of the expression reached by the ordinance is proscribable under the "fighting words" doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.3[505 U.S. 377, 382]

The First Amendment generally prevents government from proscribing speech, see, e.g., Cantwell v. Connecticut, 310 U.S. 296, 309-311 (1940), or even expressive conduct, see, e.g., Texas v. Johnson, 491 U.S. 397, 406 (1989), because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991); id., at 124 (KENNEDY, J., concurring in judgment); Consolidated Edison of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 536 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972). From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few [505 U.S. 377, 383] limited areas, which are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky, supra, at 572. We have recognized that "the freedom of speech" referred to by the First Amendment does not include a freedom to disregard these traditional limitations. See, e.g., Roth v. United States, 354 U.S. 476 (1957) (obscenity); Beauharnais v. Illinois, 343 U.S. 250 (1952) (defamation); Chaplinsky v. New Hampshire, supra ("`fighting' words"); see generally Simon & Schuster, supra, at 124 (KENNEDY, J., concurring in judgment). Our decisions since the 1960's have narrowed the scope of the traditional categorical exceptions for defamation, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); see generally Milkovich v. Lorain Journal Co., 497 U.S. 1, 13-17 (1990), and for obscenity, see Miller v. California, 413 U.S. 15 (1973), but a limited categorical approach has remained an important part of our First Amendment jurisprudence.

We have sometimes said that these categories of expression are "not within the area of constitutionally protected speech," Roth, supra, at 483; Beauharnais, supra, at 266; Chaplinsky, 315 U.S., at 571-572; or that the "protection of the First Amendment does not extend" to them, Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 504 (1984); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 124 (1989). Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity "as not being speech at all," Sunstein, Pornography and the First Amendment, 1986 Duke L.J. 589, 615, n. 146. 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 [505 U.S. 377, 384] content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government. We recently acknowledged this distinction in Ferber, 458 U.S., at 763, where, in upholding New York's child pornography law, we expressly recognized that there was no "question here of censoring a particular literary theme. . . ." See also id., at 775 (O'CONNOR, J., concurring) ("As drafted, New York's statute does not attempt to suppress the communication of particular ideas").

Our cases surely do not establish the proposition that the First Amendment imposes no obstacle whatsoever to regulation of particular instances of such proscribable expression, so that the government "may regulate [them] freely," post, at 400 (WHITE, J., concurring in judgment). That would mean that a city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well.4 It is [505 U.S. 377, 385] not true that "fighting words" have at most a "de minimis" expressive content, ibid., or that their content is in all respects "worthless and undeserving of constitutional protection," post, at 401; sometimes they are quite expressive indeed. We have not said that they constitute "no part of the expression of ideas," but only that they constitute "no essential part of any exposition of ideas." Chaplinsky, supra, at 572 (emphasis added). ***

In other words, the exclusion of "fighting words" from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a "nonspeech" element of communication. Fighting words are thus analogous to a noisy sound truck: each is, as Justice Frankfurter recognized, a "mode of speech," Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (opinion concurring in result); both can be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment. As with the sound truck, however, so also with fighting words: the government may not regulate use based on hostility - or favoritism - towards the underlying message expressed. ***

The concurrences describe us as setting forth a new First Amendment principle that prohibition of constitutionally proscribable speech cannot be "underinclusiv[e]," post, at 402 (WHITE, J., concurring in judgment) - a First Amendment "absolutism" whereby "[w]ithin a particular `proscribable' category of expression, . . . a government must either proscribe all speech or no speech at all," post, at 419 (STEVENS, J., concurring in judgment). That easy target is of the concurrences' own invention. In our view, the First Amendment imposes not an "underinclusiveness" limitation, but a "content discrimination" limitation, upon a State's prohibition of proscribable speech. There is no problem whatever, for example, with a State's prohibiting obscenity (and other forms of proscribable expression) only in certain media or markets, for although that prohibition would be "underinclusive," it would not discriminate on the basis of content. See, e.g., Sable Communications, 492 U.S., at 124-126 (upholding 47 U.S.C. 223(b)(1), which prohibits obscene telephone communications). ***
 

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, 902 F.2d 513, 517 (CA7 1990), cert. denied, 498 U.S. 1041 (1991). And the Federal Government can criminalize only those threats of violence that are directed against the President, see 18 U.S.C. 871 - since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President. See Watts v. United States, 394 U.S. 705, 707 (1969) (upholding the facial validity of 871 because of the "overwhelmin[g] interest in protecting the safety of [the] Chief Executive and in allowing him to perform his duties without interference from threats of physical violence"). But the Federal Government may not criminalize only those threats against the President that mention his policy on aid to inner cities. And to take a final example (one mentioned by JUSTICE STEVENS, post, at 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 [505 U.S. 377, 389] State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-7726 (1976)) is in its view greater there. Cf. Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) (state regulation of airline advertising); Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978) (state regulation of lawyer advertising). But a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion. See, e.g., Los Angeles Times, Aug. 8, 1989, section 4, p. 6, col. 1.

Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular "secondary effects" of the speech, so that the regulation is "justified without reference to the content of the . . . speech," Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (quoting, with emphasis, Virginia State Bd. of Pharmacy, supra, at 771); see also Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, n. 34 (1976) (plurality opinion); id., at 80-82 (Powell, J., concurring); Barnes, 501 U.S., at 586 (SOUTER, J., concurring in judgment). A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech. but against conduct (a law against treason, for example, is violated by telling the enemy the Nation's defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct, rather than speech. See id., at 571 (plurality opinion); id., at 577 (SCALIA, J., concurring in judgment); id., at 582 (SOUTER, J., concurring in judgment); FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 425-432 (1990); O'Brien, 391 U.S., at 376-377. Thus, for example, sexually derogatory "fighting words," among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices, 42 U.S.C. 2000e-2; 29 CFR 1604.11 (1991). See also 18 U.S.C. 242; [505 U.S. 377, 390] 42 U.S.C. 1981, 1982. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.

These bases for distinction refute the proposition that the selectivity of the restriction is "even arguably `conditioned upon the sovereign's agreement with what a speaker may intend to say.'" Metromedia, Inc. v. San Diego, 453 U.S. 490, 555 (1981) (STEVENS, J., dissenting in part) (citation omitted). There may be other such bases as well. Indeed, to validate such selectivity (where totally proscribable speech is at issue), it may not even be necessary to identify any particular "neutral" basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot. (We cannot think of any First Amendment interest that would stand in the way of a State's prohibiting only those obscene motion pictures with blue-eyed actresses.) Save for that limitation, the regulation of "fighting words," like the regulation of noisy speech, may address some offensive instances and leave other, equally offensive, instances alone. See Posadas de Puerto Rico, 478 U.S. at 342-343.6[505 U.S. 377, 391]

Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas - to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality - are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. See Simon & Schuster, 502 U.S., at 116; Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 229-230 (1987).

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, 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 [505 U.S. 377, 392] "anti-Catholic bigots" are misbegotten; but not that all "papists" are, for that would insult and provoke violence "on the basis of religion." St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.

What we have here, it must be emphasized, is not a prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause); but rather, a prohibition of fighting words that contain (as the Minnesota Supreme Court repeatedly emphasized) messages of "bias-motivated" hatred and, in particular, as applied to this case, messages "based on virulent notions of racial supremacy." 464 N.W.2d, at 508, 511. One must wholeheartedly agree with the Minnesota Supreme Court that "[i]t is the responsibility, even the obligation, of diverse communities to confront such notions in whatever form they appear," ibid., but the manner of that confrontation cannot consist of selective limitations upon speech. St. Paul's brief asserts that a general "fighting words" law would not meet the city's needs, because only a content-specific measure can communicate to minority groups that the "group hatred" aspect of such speech "is not condoned by the majority." Brief for Respondent 25. The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.

Despite the fact that the Minnesota Supreme Court and St. Paul acknowledge that the ordinance is directed at expression of group hatred, JUSTICE STEVENS suggests that this "fundamentally misreads" the ordinance. Post, at 433. 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 [505 U.S. 377, 393] nothing other than the fact that it is caused by a distinctive idea, conveyed by a distinctive message. The First Amendment cannot be evaded that easily. It is obvious that the symbols which will arouse "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender" are those symbols that communicate a message of hostility based on one of these characteristics. St. Paul concedes in its brief that the ordinance applies only to "racial, religious, or gender-specific symbols" such as "a burning cross, Nazi swastika or other instrumentality of like import." Brief for Respondent 8. Indeed, St. Paul argued in the Juvenile Court that "[t]he burning of a cross does express a message, and it is, in fact, the content of that message which the St. Paul Ordinance attempts to legislate." ***

The content-based discrimination reflected in the St. Paul ordinance comes within neither any of the specific exceptions to the First Amendment prohibition we discussed earlier nor a more general exception for content discrimination that does not threaten censorship of ideas. It assuredly does not fall within the exception for content discrimination based on the very reasons why the particular class of speech at issue (here, fighting words) is proscribable. As explained earlier, see supra, at 8, 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 fighting [505 U.S. 377, 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.

St. Paul argues that the ordinance comes within another of the specific exceptions we mentioned, the one that allows content discrimination aimed only at the "secondary effects" of the speech, see Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). According to St. Paul, the ordinance is intended, "not to impact on [sic] the right of free expression of the accused," but rather to "protect against the victimization of a person or persons who are particularly vulnerable because of their membership in a group that historically has been discriminated against." Brief for Respondent 28. Even assuming that an ordinance that completely proscribes, rather than merely regulates, a specified category of speech can ever be considered to be directed only to the secondary effects of such speech, it is clear that the St. Paul ordinance is not directed to secondary effects within the meaning of Renton. As we said in Boos v. Barry, 485 U.S. 312 (1988), "Listeners' reactions to speech are not the type of `secondary effects' we referred to in Renton." Id., at 321. "The emotive impact of speech on its audience is not a `secondary effect.'" Ibid. See also id., at 334 (opinion of Brennan, J.).7[505 U.S. 377, 395]

It hardly needs discussion that the ordinance does not fall within some more general exception permitting all selectivity that for any reason is beyond the suspicion of official suppression of ideas. The statements of St. Paul in this very case afford ample basis for, if not full confirmation of, that suspicion.

Finally, St. Paul and its amici defend the conclusion of the Minnesota Supreme Court that, even if the ordinance regulates expression based on hostility towards its protected ideological content, this discrimination is nonetheless justified because it is narrowly tailored to serve compelling state interests. Specifically, they assert that the ordinance helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish. *** The existence of adequate content-neutral alternatives thus "undercut[s] significantly" any defense of such a statute. ***, 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" *** . *** In fact, the only interest distinctively served by the content limitation is that of displaying the city council's special hostility towards the particular biases thus singled out.8 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.

* * * *

The judgment of the Minnesota Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

Footnotes

[Footnote 1] The conduct might have violated Minnesota statutes carrying significant penalties. See, e.g., Minn.Stat. 609.713(1) (1987) (providing for up to five years in prison for terroristic threats); 609.563 (arson) (providing for up to five years and a $10,000 fine, depending on the value of the property intended to be damaged); 609.595 (Supp. 1992) (criminal damage to property) (providing for up to one year and a $3,000 fine, depending upon the extent of the damage to the property).

[Footnote 2] Petitioner has also been charged, in Count I of the delinquency petition, with a violation of Minn.Stat. 609.2231(4) (Supp. 1990) (racially motivated assaults). Petitioner did not challenge this count.

[Footnote 4] 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, 408 U.S. 92, 95 (1972) (ordinance prohibiting only nonlabor picketing violated the Equal Protection Clause because there was no "appropriate governmental interest" supporting the distinction, inasmuch as "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content"); Carey v. [505 U.S. 377, 385] Brown, 447 U.S. 455 (1980). See generally Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 124 (1991) (KENNEDY, J., concurring in judgment).

JUSTICE STEVENS seeks to avoid the point by dismissing the notion of obscene antigovernment speech as "fantastical," post, at 418, apparently believing that any reference to politics prevents a finding of obscenity. Unfortunately for the purveyors of obscenity, that is obviously false. A shockingly 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, 413 U.S. 15, 24 (1973) (emphasis added). Anyway, it is easy enough to come up with other illustrations of a content-based restriction upon "unprotected speech" that is obviously invalid: the antigovernment libel illustration mentioned earlier, for one. See supra, at 5. And of course the concept of racist fighting words is, unfortunately, anything but a "highly speculative hypothetica[l]," post, at 419.

[Footnote 7] St. Paul has not argued in this case that the ordinance merely regulates that subclass of fighting words which is most likely to provoke a violent response. But even if one assumes (as appears unlikely) that the categories selected may be so described, that would not justify selective regulation under a "secondary effects" theory. The only reason why such expressive conduct would be especially correlated with violence is that it conveys a particularly odious message, because the "chain of causation" thus necessarily "run[s] through the persuasive effect of the expressive component" of the conduct, Barnes v. Glen Theatre, 501 U.S. 560, 586 (1991) (SOUTER, J., concurring in judgment), it is clear that the St. Paul [505 U.S. 377, 395] ordinance regulates on the basis of the "primary" effect of the speech - i.e., its persuasive (or repellant) force. 
 
 
 

JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join, and with whom JUSTICE STEVENS joins except as to Part I-A, concurring in the judgment.

I agree with the majority that the judgment of the Minnesota Supreme Court should be reversed. However, our agreement ends there.

This case could easily be decided within the contours of established First Amendment law by holding, as petitioner argues, that the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expression but expression protected by the First Amendment. See Part II, infra. Instead, "find[ing] it unnecessary" to consider the questions upon which we granted review,1 ante, at 381, the[505 U.S. 377, 398] Court holds the ordinance facially unconstitutional on a ground that was never presented to the Minnesota Supreme Court ***
 

*** [T]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. [505 U.S. 377, 399]

This Court's decisions have plainly stated that expression falling within certain limited categories so lacks the values the First Amendment was designed to protect that the Constitution affords no protection to that expression. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), made the point in the clearest possible terms:

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Id., at 571-572. ***

Thus, as the majority concedes, see ante, at 383-384, this Court has long held certain discrete categories of expression to be proscribable on the basis of their content. For instance, the Court has held that the individual who falsely shouts "fire" in a crowded theater may not claim the protection of the First Amendment. Schenck v. United States, 249 U.S. 47, 52 (1919). The Court has concluded that neither child pornography nor obscenity is protected by the First Amendment. *** And the Court has observed that, "[l]eaving aside the special considerations when public officials [and public figures] are the target, a libelous publication is not protected by the Constitution." ***

All of these categories are content-based. But the Court has held that the First Amendment does not apply to them, because their expressive content is worthless or of de minimis value to society. Chaplinsky, supra, at 571-572. We have not departed from this principle, emphasizing repeatedly that, "within the confines of [these] given classification[s], the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required." Ferber, supra, at 763-764; Bigelow v. Virginia, 421 U.S. 809, 819 (1975). This categorical approach has provided a principled and narrowly focused means for distinguishing between expression that the government may regulate freely and that which it may regulate on the basis of content only upon a showing of compelling need.2. ***

*** Nevertheless, the majority holds that the First Amendment protects those narrow categories of expression long held to be undeserving of First Amendment protection - at least to the extent that lawmakers may not regulate some fighting words more strictly than others because of their content. The Court announces that such content-based distinctions violate the First Amendment because "[t]he government may not regulate use based on hostility - or favoritism - towards the underlying message expressed." *** 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, 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, *** but that the government may not treat a subset of that category differently without violating the First Amendment; the content of the subset is, by definition, worthless and undeserving of constitutional protection.

The majority's observation that fighting words are "quite expressive indeed," ante, at 385, is no answer. Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Chaplinsky, 315 U.S., at 572. Therefore, a ban on all fighting words or on a subset of the fighting words category would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace. ***

Therefore, the Court's insistence on inventing its brand of First Amendment underinclusiveness puzzles. *** Instead, it permits, indeed invites, the continuation of expressive conduct that, in this case, is evil and worthless in First Amendment terms *** 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."

*** 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. ***.

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., 502 U.S. 105, 118 (1991) (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987)). St. Paul has urged that its ordinance, in the words of the majority, "helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination. . . ." Ante, at 395. The Court expressly concedes that this interest is compelling, and is promoted by the ordinance. Ibid. Nevertheless, the Court treats strict scrutiny analysis as irrelevant to the constitutionality of the legislation:

"The dispositive question . . . is whether content discrimination is reasonably necessary in order to achieve St. Paul's compelling interests; it plainly is not. An ordinance not [505 U.S. 377, 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.5
 

*** "States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist." Id., at 207 (emphasis added).

This reasoning is in direct conflict with the majority's analysis in the present case, which leaves two options to lawmakers attempting to regulate expressions of violence: (1) enact a sweeping prohibition on an entire class of speech (thereby requiring "regulat[ion] for problems that do not exist"); or (2) not legislate at all. ***

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 *** or as an effort to anticipate some of the questions that will arise from its radical revision of First Amendment law.

For instance, if the majority were to give general application to the rule on which it decides this case, today's decision would call into question the constitutionality of the statute making it illegal to threaten the life of the President. 18 U.S.C. 871. See Watts v. United States, 394 U.S. 705 (1969) (per curiam). Surely, this statute, by singling out certain threats, incorporates a content-based distinction; it indicates that the Government especially disfavors threats against the President, as opposed to threats against all others.10[505 U.S. 377, 408] See ante, at 391. But because the Government could prohibit all threats, and not just those directed against the President, under the Court's theory, the compelling reasons justifying the enactment of special legislation to safeguard the President would be irrelevant, and the statute would fail First Amendment review.

To save the statute, the majority has engrafted the following exception onto its newly announced First Amendment rule: content-based distinctions may be drawn within an unprotected category of speech if the basis for the distinctions is "the very reason the entire class of speech at issue is proscribable." Ante, at 388. Thus, the argument goes, the statute making it illegal to threaten the life of the President is constitutional, since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President." Ibid.

The exception swallows the majority's rule. Certainly, it should apply to the St. Paul ordinance, since "the reasons why [fighting words] are outside the First Amendment . . . have special force when applied to [groups that have historically been subjected to discrimination]."

To avoid the result of its own analysis, the Court suggests that fighting words are simply a mode of communication, rather than a content-based category, and that the St. Paul ordinance has not singled out a particularly objectionable mode of communication. Ante, at 386, 393. Again, the majority confuses the issue. A prohibition on fighting words is not a time, place, or manner restriction; it is a ban on a class of speech that conveys an overriding message of personal injury and imminent violence, Chaplinsky, 315 U.S., at 572, a message that is at its ugliest when directed against groups [505 U.S. 377, 409] that have long been the targets of discrimination. Accordingly, the ordinance falls within the first exception to the majority's theory.

As its second exception, the Court posits that certain content-based regulations will survive under the new regime if the regulated subclass "happens to be associated with particular `secondary effects' of the speech . . . ," ante, at 389, which the majority treats as encompassing instances in which "words can . . . violate laws directed not against speech, but against conduct . . . ," ibid.11 Again, there is a simple explanation for the Court's eagerness to craft an exception to its new First Amendment rule: under the general rule the Court applies in this case, Title VII hostile work environment claims would suddenly be unconstitutional.

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate "because of [an] individual's race, color, religion, sex, or national origin," 42 U.S.C. 2000e-2(a) (1), and the regulations covering hostile workplace claims forbid "sexual harassment," which includes "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" that create "an intimidating, hostile, or offensive working environment," 29 CFR 1604.11(a) (1991). The regulation does not prohibit workplace harassment generally; it focuses on what the majority would characterize as the "disfavored topi[c]" of sexual harassment. Ante, at 391. In this way, Title VII is similar to the St. Paul ordinance that the majority condemns because it "impose[s] special prohibitions on those speakers who express views on disfavored subjects." Ibid. Under the broad principle the Court uses to decide the present case, [505 U.S. 377, 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 First Amendment.

Hence, the majority's second exception, which the Court indicates would insulate a Title VII hostile work environment claim from an underinclusiveness challenge because "sexually derogatory `fighting words' . . . may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices." Ante, at 389. But application of this exception to a hostile work environment claim does not hold up under close examination.

First, the hostile work environment regulation is not keyed to the presence or absence of an economic quid pro quo, Meritor Savings Bank, F.S.B. v. Vinson, 477 U.S. 57, 65 (1986), but to the impact of the speech on the victimized worker. Consequently, the regulation would no more fall within a secondary effects exception than does the St. Paul ordinance. Ante, at 394. Second, the majority's focus on the statute's general prohibition on discrimination glosses over the language of the specific regulation governing hostile working environment, which reaches beyond any "incidental" effect on speech. United States v. O'Brien, 391 U.S. 367, 376 (1968). If the relationship between the broader statute and specific regulation is 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, at 390. As I have demonstrated, [505 U.S. 377, 411] this case does not concern the official suppression of ideas. See supra, at 401. The majority discards this notion out of hand. Ante, at 395. ***
 

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.

.

*** 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 the First Amendment context, [c]riminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application. *** The St. Paul antibias ordinance is such a law. Although the ordinance reaches conduct that is unprotected, it also makes criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the First Amendment. Cf. Lewis, supra, at 132.13 The ordinance is therefore fatally overbroad and invalid on its face. ***

[Footnote 10] Indeed, such a law is content-based in and of itself, because it distinguishes between threatening and nonthreatening speech.

[Footnote 13] Although the First Amendment protects offensive speech, Johnson v. Texas, 491 U.S., at 414, it does not require us to be subjected to such expression at all times, in all settings. We have held that such expression may be proscribed when it intrudes upon a "captive audience." Frisby v. Schultz, 487 U.S. 474, 484-485 (1988); FCC v. Pacifica Foundation, 438 U.S. 726, 748-749 (1978). And expression may be limited when it merges into conduct. United States v. O'Brien, 391 U.S. 367 (1968); cf. Meritor Savings Bank, F.S.B. v. Vinson, 477 U.S. 57, 65 (1986). However, because of the manner in which the Minnesota Supreme Court construed the St. Paul ordinance, those issues are not before us in this case.
 
 

JUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE BLACKMUN join as to Part I, concurring in the judgment.

Conduct that creates special risks or causes special harms may be prohibited by special rules. Lighting a fire near an ammunition dump or a gasoline storage tank is especially dangerous; such behavior may be punished more severely than burning trash in a vacant lot. Threatening someone because of her race or religious beliefs may cause particularly severe trauma or touch off a riot, and threatening a high public official may cause substantial social disruption; such threats may be punished more severely than threats against someone based on, say, his support of a particular athletic team. There are legitimate, reasonable, and neutral justifications for such special rules.

This case involves the constitutionality of one such ordinance. Because the regulated conduct has some communicative content - a message of racial, religious, or gender hostility - the ordinance raises two quite different First Amendment questions. Is the ordinance "overbroad" because it prohibits too much speech? If not, is it "underbroad" [505 U.S. 377, 417] because it does not prohibit enough speech?

In answering these questions, my colleagues today wrestle with two broad principles: first, that certain "categories of expression [including `fighting words'] are `not within the area of constitutionally protected speech,'" ante, at 400 (WHITE, J., concurring in judgment); and second, that "[c]ontent-based regulations [of expression] are presumptively invalid," ante, at 382 (majority opinion). Although, in past opinions, the Court has repeated both of these maxims, it has - quite rightly - adhered to neither with the absolutism suggested by my colleagues. Thus, while I agree that the St. Paul ordinance is unconstitutionally overbroad for the reasons stated in Part II of JUSTICE WHITE's opinion, I write separately to suggest how the allure of absolute principles has skewed the analysis of both the majority and JUSTICE WHITE's opinions.

***"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942).

We have, as JUSTICE WHITE observes, often described such categories of expression as "not within the area of constitutionally protected speech." Roth v. United States, 354 U.S. 476, 483 (1957). [505 U.S. 377, 418]

The Court today revises this categorical approach. ***

*** 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 *** it promptly embraces an absolutism of its own: Within a particular "proscribable" category of expression, the Court holds, a government must either proscribe all speech or no speech at all.1 This aspect of the Court's ruling fundamentally misunderstands the role and constitutional status of content-based regulations on speech, conflicts with the very nature of First Amendment jurisprudence, and disrupts well-settled principles of First Amendment law. [505 U.S. 377, 420]

Although the Court has, on occasion, declared that content-based regulations of speech are "never permitted," Police Dept. of Chicago v. Mosley, 408 U.S. 92, 99 (1972), such claims are overstated. Indeed, in Mosley itself, the Court indicated that Chicago's selective proscription of nonlabor picketing was not per se unconstitutional, but rather could be upheld if the city demonstrated that nonlabor picketing was "clearly more disruptive than [labor] picketing." Id., at 100. Contrary to the broad dicta in Mosley and elsewhere, our decisions demonstrate that content-based distinctions, far from being presumptively invalid, are an inevitable and indispensable aspect of a coherent understanding of the First Amendment.

This is true at every level of First Amendment law. In broadest terms, our entire First Amendment jurisprudence creates a regime based on the content of speech. The scope of the First Amendment is determined by the content of expressive activity: although the First Amendment broadly protects "speech," it does not protect the right to "fix prices, breach contracts, make false warranties, place bets with bookies, threaten, [or] extort." Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand.L.Rev. 265, 270 (1981). **

Likewise, whether speech falls within one of the categories of "unprotected" or "proscribable" expression is determined, in part, by its content. Whether a magazine is obscene, a gesture a fighting word, or a photograph child pornography, is determined, in part, by its content. ***

Consistent with this general premise, we have frequently upheld content-based regulations of speech. For example, in Young v. American Mini Theatres, the Court upheld zoning ordinances that regulated movie theaters based on the content of the films shown. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (plurality opinion), we upheld a restriction on the broadcast of specific indecent words. In Lehman v. Shaker Heights, 418 U.S. 298 (1974) (plurality opinion), we upheld a city law that permitted commercial advertising, but prohibited political advertising, on city buses. In Broadrick v. Oklahoma, 413 U.S. 601 (1973), we upheld a state law that restricted the speech of state employees, but only as concerned partisan political matters. We have long recognized the power of the Federal Trade Commission to regulate misleading advertising and labeling, see, e.g., Jacob Siegel Co. v. FTC, 327 U.S. 608 (1946), and the National Labor Relations Board's power to regulate an employer's election-related speech on the basis of its content, see, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 616-618 (1969). [505 U.S. 377, 422] It is also beyond question that the Government may choose to limit advertisements for cigarettes, see 15 U.S.C. 1331-1340,3 but not for cigars; choose to regulate airline advertising, see Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), but not bus advertising; or choose to monitor solicitation by lawyers, see Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), but not by doctors.

***

Perhaps because the Court recognizes these perversities, it quickly offers some ad hoc limitations on its newly extended prohibition on content-based regulations. First, the Court states that a content-based regulation is valid "[w]hen the content discrimination is based upon the very reason the entire class of speech . . . is proscribable." In 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 [505 U.S. 377, 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." Ante, at 388.

As I understand this opaque passage, Congress may choose from the set of unprotected speech (all threats) to proscribe only a subset (threats against the President), because those threats are particularly likely to cause "fear of violence," "disruption," and actual "violence."

Precisely this same reasoning, however, compels the conclusion that St. Paul's ordinance is constitutional. Just as Congress may determine that threats against the President entail more severe consequences than other threats, so St. Paul's City Council may determine that threats based on the target's race, religion, or gender cause more severe harm to both the target and to society than other threats. This latter judgment - that harms caused by racial, religious, and gender-based invective are qualitatively different from that caused by other fighting words - seems to me eminently reasonable and realistic.

Next, the Court recognizes that a State may regulate advertising in one industry, but not another, because "the risk of fraud (one of the characteristics . . . that justifies depriving [commercial speech] of full First Amendment protection . . .)" in the regulated industry is "greater" than in other industries. Ibid.. Again, the same reasoning demonstrates the constitutionality of St. Paul's ordinance. "[O]ne of the characteristics that justifies" the constitutional status of fighting words is that such words, "by their very utterance, inflict injury or tend to incite an immediate breach of the peace." Chaplinsky, 315 U.S,. at 572. Certainly a legislature that may determine that the risk of fraud is greater in the legal [505 U.S. 377, 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.

*** St. Paul has determined - reasonably in my judgment - that fighting-word injuries "based on race, color, creed, religion or gender" are qualitatively different and more severe than fighting-word injuries based on other characteristics. Whether the selective proscription of proscribable speech is defined by the protected target ("certain persons or groups") or the basis of the harm (injuries "based on race, color, creed, religion or gender") makes no constitutional difference: What matters is whether the legislature's selection is based on a legitimate, neutral, and reasonable distinction.

In sum, the central premise of the Court's ruling - that "[c]ontent-based regulations are presumptively invalid" - has simplistic appeal, but lacks support in our First Amendment jurisprudence. To make matters worse, the Court today extends this overstated claim to reach categories of hitherto unprotected speech and, in doing so, wreaks havoc in an area of settled law. Finally, although the Court recognizes [505 U.S. 377, 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.

Although I agree with much of JUSTICE WHITE's analysis, I do not join Part I-A of his opinion because I have reservations about the "categorical approach" to the First Amendment. These concerns, which I have noted on other occasions, see, e.g., New York v. Ferber, 458 U.S. 747, 778 (1982) (opinion concurring in judgment), lead me to find JUSTICE WHITE's response to the Court's analysis unsatisfying.

Admittedly, the categorical approach to the First Amendment has some appeal: Either expression is protected or it is not - the categories create safe harbors for governments and speakers alike. But this approach sacrifices subtlety for clarity, and is, I am convinced, ultimately unsound. As an initial matter, the concept of "categories" fits poorly with the complex reality of expression. Few dividing lines in First Amendment law are straight and unwavering, and efforts at categorization inevitably give rise only to fuzzy boundaries. *** The quest for doctrinal certainty through the definition of categories and subcategories is, in my opinion, destined to fail.

Moreover, the categorical approach does not take seriously the importance of context. The meaning of any expression and the legitimacy of its regulation can only be determined [505 U.S. 377, 427] in context.5 Whether, for example, a picture or a sentence is obscene cannot be judged in the abstract, but rather only in the context of its setting, its use, and its audience. Similarly, although legislatures may freely regulate most nonobscene child pornography, such pornography that is part of "a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device" may be entitled to constitutional protection; the "question whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context." Ferber, 458 U.S., at 778 (STEVENS, J., concurring in judgment); see also Smith v. United States, 431 U.S. 291, 311-321 (1977) (STEVENS, J., dissenting). The categorical approach sweeps too broadly when it declares that all such expression is beyond the protection of the First Amendment. ***
 

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. [505 U.S. 377, 429] ***

First, as suggested above, the scope of protection provided expressive activity depends in part upon its content and character. We have long recognized that, when government regulates political speech or "the expression of editorial opinion on matters of public importance," FCC v. League of Women Voters of Cal., 468 U.S. 364, 375-376 (1984), "First Amendment protectio[n] is `at its zenith,'" Meyer v. Grant, 486 U.S. 414, 425 (1988). In comparison, we have recognized that "commercial speech receives a limited form of First Amendment protection," Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340 (1986), and that "society's interest in protecting [sexually explicit films] is of a wholly different, and lesser, magnitude than [its] interest in untrammeled political debate," Young v. American Mini Theatres, 427 U.S., at 70; see also FCC v. Pacifica Foundation, 438 U.S. 726 (1978). The character of expressive activity also weighs in our consideration of its constitutional status. As we have frequently noted, "[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word." Texas v. Johnson, 491 U.S. 397, 406 (1989); see also United States v. O'Brien, 391 U.S. 367 (1968).

The protection afforded expression turns as well on the context of the regulated speech. We have noted, for example, that "[a]ny assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting . . . [and] must take into account the economic dependence of the employees on their employers." NLRB v. Gissel Packing Co., 395 U.S., at 617. Similarly, the distinctive character of a university environment, see [505 U.S. 377, 430] Widmar v. Vincent, 454 U.S. 263, 277-280 (1981) (STEVENS, J., concurring in judgment), or a secondary school environment, see Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988), influences our First Amendment analysis. The same is true of the presence of a "'captive audience[, one] there as a matter of necessity, not of choice.'" Lehman v. Shaker Heights, 418 U.S., at 302 (citation omitted).6 Perhaps the most familiar embodiment of the relevance of context is our "fora" jurisprudence, differentiating the levels of protection afforded speech in different locations.

The nature of a contested restriction of speech also informs our evaluation of its constitutionality. *** More particularly to the matter of content-based regulations, we have implicitly distinguished between restrictions on expression based on subject matter and restrictions based on viewpoint, indicating that the latter are particularly pernicious. "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S., at 414. "Viewpoint discrimination is censorship in its purest form," Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 62 (1983) (Brennan, J., dissenting), and requires particular scrutiny, in part because such regulation often indicates a legislative effort to skew public debate on an issue, see, e.g., Schacht v. United States, 398 U.S. 58, 63 (1970). "Especially where . . . the legislature's suppression of speech suggests an attempt [505 U.S. 377, 431] to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended." First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 785-786 (1978). Thus, although a regulation that, on its face, regulates speech by subject matter may, in some instances, effectively suppress particular viewpoints *** [and] in general, viewpoint-based restrictions on expression require greater scrutiny than subject-matter-based restrictions.7

*** All of these factors play some role in our evaluation of content-based regulations on expression. Such a multi-faceted 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." [505 U.S. 377, 432]

In applying this analysis to the St. Paul ordinance, I assume, arguendo - as the Court does - that the ordinance regulates only fighting words, and therefore is not overbroad. Looking to the content and character of the regulated activity, two things are clear. First, by hypothesis, the ordinance bars only low-value speech, namely, fighting words. By definition, such expression constitutes "no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality." Chaplinsky, 315 U.S., at 572. Second, the ordinance regulates "expressive conduct, [rather] than . . . the written or spoken word." Texas v. Johnson, 491 U.S., at 406.

Looking to the context of the regulated activity, it is again significant that the statute (by hypothesis) regulates only fighting words. Whether words are fighting words is determined in part by their context. Fighting words are not words that merely cause offense; fighting words must be directed at individuals so as to, "by their very utterance, inflict injury." By hypothesis, then, the St. Paul ordinance restricts speech in confrontational and potentially violent situations. The case at hand is illustrative. The cross burning in this case - directed as it was to a single African-American family trapped in their home - was nothing more than a crude form of physical intimidation. That this cross burning sends a message of racial hostility does not automatically endow it with complete constitutional protection.8[505 U.S. 377, 433]

Significantly, the St. Paul ordinance regulates speech not on the basis of its subject matter or the viewpoint expressed, but rather on the basis of the harm the speech causes. In this regard, the Court fundamentally misreads the St. Paul ordinance. The Court describes the St. Paul ordinance as regulating expression "addressed to one of [several] specified disfavored topics," ante, at 391 (emphasis supplied), as policing "disfavored subjects," ibid. (emphasis supplied), and as "prohibit[ing] . . . speech solely on the basis of the subjects the speech addresses," ante, at 381 (emphasis supplied). Contrary to the Court's suggestion, the ordinance regulates only a subcategory of expression that causes injuries based on "race, color, creed, religion or [505 U.S. 377, 434] gender," not a subcategory that involves discussions that concern those characteristics.9 The ordinance, as construed by the Court, criminalizes expression that "one knows . . . [, by its very utterance, inflicts injury on] others on the basis of race, color, creed, religion or gender." In this regard, the ordinance resembles the child pornography law at issue in Ferber, which, in effect, singled out child pornography because those publications caused far greater harms than pornography involving adults. ***

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. [505 U.S. 377, 435]

The Court writes:

"One could hold up a sign saying, for example, that all "anti-Catholic bigots" are misbegotten; but not that all "papists" are, for that would insult and provoke violence "on the basis of religion." Ante, at 391-392.

This may be true, but it hardly proves the Court's point. The Court's reasoning is asymmetrical. The response to a sign saying that "all [religious] bigots are misbegotten" is a sign saying that "all advocates of religious tolerance are misbegotten." Assuming such signs could be fighting words (which seems to me extremely unlikely), neither sign would be banned by the ordinance, for the attacks were not "based on . . . religion," but rather on one's beliefs about tolerance. Conversely (and again assuming such signs are fighting words), just as the ordinance would prohibit a Muslim from hoisting a sign claiming that all Catholics were misbegotten, so the ordinance would bar a Catholic from hoisting a similar sign attacking Muslims.

The St. Paul ordinance is evenhanded. In a battle between advocates of tolerance and advocates of intolerance, the ordinance does not prevent either side from hurling fighting words at the other on the basis of their conflicting ideas, but it does bar both sides from hurling such words on the basis of the target's "race, color, creed, religion or gender." To extend the Court's pugilistic metaphor, the St. Paul ordinance simply bans punches "below the belt" - by either party. It does not, therefore, favor one side of any debate.10[505 U.S. 377, 436]

Finally, it is noteworthy that the St. Paul ordinance is, as construed by the Court today, quite narrow. The St. Paul ordinance does not ban all "hate speech," nor does it ban, say, all cross burnings or all swastika displays. Rather, it only bans a subcategory of the already narrow category of fighting words. Such a limited ordinance leaves open and protected a vast range of expression on the subjects of racial, religious, and gender equality. As construed by the Court today, the ordinance certainly does not "`rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.'" Ante, at 387. Petitioner is free to burn a cross to announce a rally or to express his views about racial supremacy, he may do so on private property or public land, at day or at night, so long as the burning is not so threatening and so directed at an individual as to, "by its very [execution,] inflict injury." Such a limited proscription scarcely offends the First Amendment.

***

[Footnote 4] 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, 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.

[Footnote 8] The Court makes much of St. Paul's description of the ordinance as regulating "a message." Ante, at 393. As always, however, St. Paul's argument must be read in context:

"Finally, we ask the Court to reflect on the "content" of the "expressive conduct" represented by a "burning cross." It is no less than the first step in an act of racial violence. It was, and unfortunately still is, the equivalent of [the] waving of a knife before the thrust, the pointing of a gun before it is fired, the lighting of the match before the arson, the hanging of the noose before the lynching. It is not a political statement, or even [505 U.S. 377, 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 victim['s] head. It is perhaps the ultimate expression of "fighting words." App. to Brief for Petitioner C-6.

[Footnote 9] The Court contends that this distinction is "wordplay," reasoning that "[w]hat makes[the harms caused by race-based threats] distinct from [the harms] produced by other fighting words is . . . the fact that [the former are] caused by a distinctive idea. Ante, at 392-393 (emphasis added). In this way, the Court concludes that regulating speech based on the injury it causes is no different from regulating speech based on its subject matter. This analysis fundamentally miscomprehends the role of "race, color, creed, religion [and] gender" in contemporary American society. One need look no further than the recent social unrest in the Nation's cities to see that race-based threats may cause more harm to society and to individuals than other threats. Just as the statute prohibiting threats against the President is justifiable because of the place of the President in our social and political order, so a statute prohibiting race-based threats is justifiable because of the place of race in our social and political order. Although it is regrettable that race occupies such a place and is so incendiary an issue, until the Nation matures beyond that condition, laws such as St. Paul's ordinance will remain reasonable and justifiable.