 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

BURSON, ATTORNEY GENERAL AND REPORTER
       FOR TENNESSEE v. FREEMAN
certiorari to the supreme court of tennessee
No. 901056.   Argued October 8, 1991"Decided May 26, 1992

Respondent Freeman, while the treasurer for a political campaign in
Tennessee, filed an action in the Chancery Court, alleging, among
other things, that 27111(b) of the Tennessee Code"which prohib-
its the solicitation of votes and the display or distribution of cam-
paign materials within 100 feet of the entrance to a polling
place"limited her ability to communicate with voters in violation of,
inter alia, the First and Fourteenth Amendments.  The court dis-
missed her suit, but the State Supreme Court reversed, ruling that
the State had a compelling interest in banning such activities within
the polling place itself but not on the premises around the polling
place. Thus, it concluded, the 100-foot limit was not narrowly tailored
to protect, and was not the least restrictive means to serve, the
State's interests.
Held:The judgment is reversed, and the case is remanded.
802 S.W. 2d 210, reversed and remanded.
Justice Blackmun, joined by The Chief Justice, Justice White,
and Justice Kennedy, concluded that 27111(b) does not violate
the First and Fourteenth Amendments.  Pp.420.
(a)The section is a facially content-based restriction on political
speech in a public forum and, thus, must be subjected to exacting
scrutiny:  The State must show that the regulation is necessary to
serve a compelling state interest and that it is narrowly drawn to
achieve that end.  This case presents a particularly difficult reconcili-
ation, since it involves a conflict between the exercise of the right to
engage in political discourse and the fundamental right to vote, which
is at the heart of this country's democracy.  Pp.47.
(b)Section 27111(b) advances Tennessee's compelling interests
in preventing voter intimidation and election fraud.  There is a
substantial and long-lived consensus among the 50 States that some
restricted zone around polling places is necessary to serve the inter-
est in protecting the right to vote freely and effectively.  The real
question then is how large a restricted zone is permissible or suffi-
ciently tailored.  A State is not required to prove empirically that an
election regulation is perfectly tailored to secure such a compelling
interest.  Rather, legislatures should be permitted to respond to
potential deficiencies in the electoral process with foresight, provided
that the response is reasonable and does not significantly impinge on
constitutionally protected rights.  Munro v. Socialist Workers Party,
479 U.S. 189, 195196.  Section 27111(b)'s minor geographical
limitation does not constitute such a significant impingement.  While
it is possible that at some measurable distance from the polls govern-
mental regulation of vote solicitation could effectively become an
impermissible burden on the First Amendment, Tennessee, in estab-
lishing its 100-foot boundary, is on the constitutional side of the line.
Pp.720.
Justice Scalia concluded that 27111 is constitutional because
it is a reasonable, viewpoint-neutral regulation of a nonpublic forum.
The environs of a polling place, including adjacent streets and
sidewalks, have traditionally not been devoted to assembly and
debate and therefore do not constitute a traditional public forum.  Cf.
Greer v. Spock, 424 U.S. 828.  Thus, speech restrictions such as
those in 27111 need not be subjected to ``exacting scrutiny''
analysis.  Pp.14.

Blackmun, J., announced the judgment of the Court and delivered
an opinion, in which, Rehnquist, C. J., and White and Kennedy, JJ.,
joined.  Kennedy, J., filed a concurring opinion.  Scalia, J., filed an
opinion concurring in the judgment.  Stevens, J., filed a dissenting
opinion, in which O'Connor and Souter, JJ., joined.  Thomas, J., took
no part in the consideration or decision of the case.


  NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
         SUPREME COURT OF THE UNITED STATES
                       No. 90-1056
 
         CHARLES W. BURSON, ATTORNEY GENERAL AND
               REPORTER FOR TENNESSEE, PETITIONER v.
                       MARY REBECCA FREEMAN
           on writ of certiorari to the supreme court of
                    tennessee, middle division
                          [May 26, 1992]

       Justice Blackmun announced the judgment of the Court
and delivered an opinion, in which The Chief Justice,
Justice White, and Justice Kennedy join.
       Twenty-six years ago, this Court, in a majority opinion
written by Justice Hugo L. Black, struck down a state law
that made it a crime for a newspaper editor to publish an
editorial on election day urging readers to vote in a particu-
lar way.  Mills v. Alabama, 384 U.S. 214 (1966).  While the
Court did not hesitate to denounce the statute as an
``obvious and flagrant abridgment'' of First Amendment
rights, id., at 219, it was quick to point out that its holding
``in no way involve[d] the extent of a State's power to
regulate conduct in and around the polls in order to
maintain peace, order and decorum there.''  Id., at 218.
       Today, we confront the issue carefully left open in Mills.
The question presented is whether a provision of the
Tennessee Code, which prohibits the solicitation of votes
and the display or distribution of campaign materials
within 100 feet of the entrance to a polling place, violates
the First and Fourteenth Amendments.                                 I
       The State of Tennessee has carved out an election-day
``campaign-free zone'' through 27111(b) of its election
code.  That section reads in pertinent part:
                    ``Within the appropriate boundary as established in
         subsection (a) [100 feet from the entrances], and the
         building in which the polling place is located, the
         display of campaign posters, signs or other campaign
         materials, distribution of campaign materials, and
         solicitation of votes for or against any person or
         political party or position on a question are prohibited.''
         Tenn. Code Ann. 27111(b) (Supp. 1991).
Violation of 27111(b) is a Class C misdemeanor
punishable by a term of imprisonment not greater than 30
days or a fine not to exceed $50, or both.  Tenn. Code Ann.
219119 and 4035111(e)(3) (1990).
                                II
       Respondent Mary Rebecca Freeman has been a candidate
for office in Tennessee, has managed local campaigns, and
has worked actively in state-wide elections.  In 1987, she
was the treasurer for the campaign of a city-council
candidate in Metropolitan Nashville-Davidson County.
Asserting that 27111(b) and 219119 limited her
ability to communicate with voters, respondent brought a
facial challenge to these statutes in Davidson County
Chancery Court.  She sought a declaratory judgment that
the provisions were unconstitutional under both the United
States and the Tennessee Constitutions.  She also sought a
permanent injunction against their enforcement.
       The Chancellor ruled that the statutes did not violate the
United States or Tennessee Constitutions and dismissed
respondent's suit.  App. 50.  He determined that
27111(b) was a content-neutral and reasonable time,
place, and manner restriction; that the 100-foot boundary
served a compelling state interest in protecting voters from
interference, harassment, and intimidation during the
voting process; and that there was an alternative channel
for respondent to exercise her free-speech rights outside the
100-foot boundary.  App. to Pet. for Cert. 1a.
       The Tennessee Supreme Court, by a 4-to-1 vote, reversed.
802 S. W. 2d 210 (1990).  The court first held that
27111(b) was content-based ``because it regulates a
specific subject matter, the solicitation of votes and the
display or distribution of campaign materials, and a certain
category of speakers, campaign workers.''  Id., at 213.  The
court then held that such a content-based statute could not
be upheld unless (i) the burden placed on free-speech rights
is justified by a compelling state interest and (ii) the means
chosen bear a substantial relation to that interest and are
the least intrusive to achieve the State's goals.  While the
Tennessee Supreme Court found that the State unquestion-
ably had shown a compelling interest in banning solicita-
tion of voters and distribution of campaign materials within
the polling place itself, it concluded that the State had not
shown a compelling interest in regulating the premises
around the polling place.  Accordingly, the court held that
the 100-foot limit was not narrowly tailored to protect the
demonstrated interest.  The court also held that the statute
was not the least restrictive means to serve the State's
interests.  The court found less restrictive the current
Tennessee statutes prohibiting interference with an election
or the use of violence or intimidation to prevent voting.  See
Tenn. Code Ann. 219101 and 219115 (Supp. 1991).
Finally, the court noted that if the State were able to show
a compelling interest in preventing congestion and disrup-
tion at the entrances to polling places, a shorter radius
``might perhaps pass constitutional muster.''  802 S.W.2d,
at 214.
       Because of the importance of the issue, we granted
certiorari.  498 U.S. ___ (1991).  We now reverse the
Tennessee Supreme Court's judgment that the statute
violates the First Amendment of the United States Consti-
tution.
                                III
       The First Amendment provides that ``Congress shall
make no law . . . abridging the freedom of speech . . . .''
This Court in Thornhill v. Alabama, 310 U.S. 88, 95 (1940),
said: ``The freedom of speech . . . which [is] secured by the
First Amendment against abridgment by the United States,
[is] among the fundamental personal rights and liberties
which are secured to all persons by the Fourteenth Amend-
ment against abridgment by a State.''
       The Tennessee statute implicates three central concerns
in our First Amendment jurisprudence: regulation of
political speech, regulation of speech in a public forum, and
regulation based on the content of the speech.  The speech
restricted by 27111(b) obviously is political speech.
``Whatever differences may exist about interpretations of
the First Amendment, there is practically universal
agreement that a major purpose of that Amendment was to
protect the free discussion of governmental affairs.''  Mills
v. Alabama, 384 U.S., at 218.  ``For speech concerning
public affairs is more than self-expression; it is the essence
of self-government.''  Garrison v. Louisiana, 379 U.S. 64,
7475 (1964).  Accordingly, this Court has recognized that
``the First Amendment `has its fullest and most urgent
application' to speech uttered during a campaign for
political office.''  Eu v. San Francisco Democratic Comm.,
489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v.
Roy, 401 U.S. 265, 272 (1971)).
       The second important feature of 27111(b) is that it
bars speech in quintessential public forums.  These forums
include those places ``which by long tradition or by govern-
ment fiat have been devoted to assembly and debate,'' such
as parks, streets, and sidewalks.  Perry Education Assn. v.
Perry Local Educators' Assn., 460 U.S. 37, 45 (1983).
``Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights, and
liberties of citizens.''  Hague v. CIO, 307 U.S. 496, 515
(1939) (opinion of Roberts, J.).  At the same time, however,
expressive activity, even in a quintessential public forum,
may interfere with other important activities for which the
property is used.  Accordingly, this Court has held that the
government may regulate the time, place, and manner of
the expressive activity, so long as such restrictions are
content-neutral, are narrowly tailored to serve a significant
governmental interest, and leave open ample alternatives
for communication.  United States v. Grace, 461 U.S. 171,
177 (1983).  See also Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989).
       The Tennessee restriction under consideration, however,
is not a facially content-neutral time, place, or manner
restriction.  Whether individuals may exercise their free-
speech rights near polling places depends entirely on
whether their speech is related to a political campaign.  The
statute does not reach other categories of speech, such as
commercial solicitation, distribution, and display.  This
Court has held that the First Amendment's hostility to
content-based regulation extends not only to a restriction on
a particular viewpoint, but also to a prohibition of public
discussion of an entire topic.  See, e.g., Consolidated Edison
Co. v. Public Service Comm'n of New York, 447 U.S. 530,
537 (1980).  Accord, Simon & Schuster, Inc. v. New York
Crime Victims Bd., __ U.S. __, __ (1991) (slip op. 9) (statute
restricting speech about crime is content-based).
       As a facially content-based restriction on political speech
in a public forum, 27111(b) must be subjected to
exacting scrutiny: The State must show that the ``regulation
is necessary to serve a compelling state interest and that it
is narrowly drawn to achieve that end.''  Perry Education
Assn. v. Perry Local Educators' Assn., 460 U.S., at 45.
Accord, Board of Airport Comm'rs of Los Angeles v. Jews for
Jesus, Inc., 482 U.S. 569, 573 (1987); Cornelius v. NAACP
Legal Defense and Ed. Fund, Inc., 473 U.S. 788, 800 (1985);
United States v. Grace, 461 U.S., at 177.
       Despite the ritualistic ease with which we state this now-
familiar standard, its announcement does not allow us to
avoid the truly difficult issues involving the First Amend-
ment.  Perhaps foremost among these serious issues are
cases that force us to reconcile our commitment to free
speech with our commitment to other constitutional rights
embodied in government proceedings.  See, e.g., Sheppard
v. Maxwell, 384 U.S. 333, 361363 (1966) (outlining restric-
tions on speech of trial participants that courts may impose
to protect an accused's right to a fair trial).  This case
presents us with a particularly difficult reconciliation:the
accommodation of the right to engage in political
discourse with the right to vote"a right at the heart of our
democracy.
                                IV
       Tennessee asserts that its campaign-free zone serves two
compelling interests.  First, the State argues that its
regulation serves its compelling interest in protecting the
right of its citizens to vote freely for the candidates of their
choice.  Second, Tennessee argues that its restriction
protects the right to vote in an election conducted with
integrity and reliability.
       The interests advanced by Tennessee obviously are
compelling ones.  This Court has recognized that the ``right
to vote freely for the candidate of one's choice is of the
essence of a democratic society.''  Reynolds v. Sims, 377
U.S. 533, 555 (1964).  Indeed,
          No right is more precious in a free country than that
         of having a choice in the election of those who make
         the laws under which, as good citizens, they must live.
         Other rights, even the most basic, are illusory if the
         right to vote is undermined.''  Wesberry v. Sanders, 376
         U.S. 1, 17 (1964).
Accordingly, this Court has concluded that a State has a
compelling interest in protecting voters from confusion and
undue influence.  See Eu, 489 U.S., at 228229.
    The Court also has recognized that a State ``indisputably
has a compelling interest in preserving the integrity of its
election process.''  Id., at 231.  The Court thus has ``upheld
generally applicable and evenhanded restrictions that
protect the integrity and reliability of the electoral process
itself.''  Anderson v. Celebrezze, 460 U.S. 780, 788, n. 9
(1983) (collecting cases).  In other words, it has recognized
that a State has a compelling interest in ensuring that an
individual's right to vote is not undermined by fraud in the
election process.
       To survive strict scrutiny, however, a State must do more
than assert a compelling state interest"it must demon-
strate that its law is necessary to serve the asserted
interest.  While we readily acknowledge that a law rarely
survives such scrutiny, an examination of the evolution of
election reform, both in this country and abroad, demon-
strates the necessity of restricted areas in or around polling
places.
       During the colonial period, many government officials
were elected by the viva voce method or by the showing of
hands, as was the custom in most parts of Europe.  That
voting scheme was not a private affair, but an open, public
decision, witnessed by all and improperly influenced by
some.  The opportunities that the viva voce system gave for
bribery and intimidation gradually led to its repeal.  See
generally, E. Evans, A History of the Australian Ballot
System in the United States 16 (1917) (Evans); J. Harris,
Election Administration in the United States 1516 (1934)
(Harris); J. Rusk, The Effect of the Australian Ballot
Reform on Split Ticket Voting, 18761888, 811 (1968)
(Rusk).
       Within 20 years of the formation of the Union, most
States had incorporated the paper ballot into their electoral
system.  Initially, this paper ballot was a vast improvement.
Individual voters made their own handwritten ballots,
marked them in the privacy of their homes, and then
brought them to the polls for counting.  But the effort of
making out such a ballot became increasingly more complex
and cumbersome.  See generally, S. Albright, The American
Ballot 1419 (1942) (Albright); Evans 5; Rusk 914.
       Wishing to gain influence, political parties began to
produce their own ballots for voters.  These ballots were
often printed with flamboyant colors, distinctive designs,
and emblems so that they could be recognized at a distance.
State attempts to standardize the ballots were easily
thwarted"the vote-buyer could simply place a ballot in the
hands of the bribed voter and watch until he placed it in
the polling box.  Thus, the evils associated with the earlier
viva voce system reinfected the election process; the failure
of the law to secure secrecy opened the door to bribery and
intimidation.  See generally, Albright 1920; Evans 7, 11;
Harris 17, 151152; V. Key, Politics, Parties, and Pressure
Groups 649 (1952); J. Reynolds, Testing Democracy:
Electoral Behavior and Progressive Reform in New Jersey,
18801920, 36 (1988); Rusk 1423.
       Approaching the polling place under this system was akin
to entering an open auction place.  As the elector started
his journey to the polls, he was met by various party ticket
peddlers ``who were only too anxious to supply him with
their party tickets.''  Evans 9.  Often the competition
became heated when several such peddlers found an
uncommitted or wavering voter.  See L. Fredman, The
Australian Ballot:  The Story of an American Reform 24
(1968) (Fredman); Rusk 17.  Sham battles were frequently
engaged in to keep away elderly and timid voters of the
opposition.  See Fredman 24, 2627; 115 North American
Review 628629 (cited in Evans 16).  In short, these early
elections ``were not a very pleasant spectacle for those who
believed in democratic government.''  Evans 10.
       The problems with voter intimidation and election fraud
that the United States was experiencing were not unique.
Several other countries were attempting to work out
satisfactory solutions to these same problems.  Some
Australian provinces adopted a series of reforms intended
to secure the secrecy of an elector's vote.  The most famous
feature of the Australian system was its provision for an
official ballot, encompassing all candidates of all parties on
the same ticket.  But this was not the only measure
adopted to preserve the secrecy of the ballot.  The Austra-
lian system also provided for the erection of polling booths
(containing several voting compartments) open only to
election officials, two ``scrutinees'' for each candidate, and
electors about to vote.  See J. Wigmore, The Australian
Ballot System as Embodied in the Legislation of Various
Countries 69, 71, 78, 79 (1889) (Wigmore) (excerpting
provisions adopted by South Australia and Queensland).
See generally, Albright 23; Evans 17; Rusk 2324.
       The Australian system was enacted in England in 1872
after a study by the committee of election practices identi-
fied Australia's ballot as the best possible remedy for the
existing situation.  See Wigmore 1416.  Belgium followed
England's example in 1877.  Like the Australian provinces,
both England and Belgium excluded the general public from
the entire polling room.  See Wigmore 94, 105.  See general-
ly, Albright 2324; Evans 1718; Rusk 2425.
       One of the earliest indications of the reform movement in
this country came in 1882 when the Philadelphia Civil
Service Reform Association urged its adoption in a pam-
phlet entitled ``English Elections.''  Many articles were
written praising its usefulness in preventing bribery,
intimidation, disorder, and inefficiency at the polls.
Commentators argued that it would diminish the growing
evil of bribery by removing the knowledge of whether it had
been successful.  Another argument strongly urged in favor
of the reform was that it would protect the weak and
dependent against intimidation and coercion by employers
and creditors.  The inability to determine the effectiveness
of bribery and intimidation accordingly would create order
and decency at the polls.  See generally, Albright 2426;
Evans 2123; Rusk 2529, 4243.
       After several failed attempts to adopt the Australian
system in Michigan and Wisconsin, the Louisville, Ken-
tucky, municipal government, the Commonwealth of
Massachusetts and the State of New York adopted the
Australian system in 1888.  The Louisville law prohibited
all but voters, candidates or their agents, and electors from
coming within 50 feet of the voting room inclosure.  The
Louisville law also provided that candidates' agents within
the restricted area ``were not allowed to persuade, influence,
or intimidate any one in the choice of his candidate, or to
attempt doing so . . . .''  Wigmore 120.  The Massachusetts
and New York laws differed somewhat from the previous
acts in that they excluded the general public only from the
area encompassed within a guard rail constructed six feet
from the voting compartments.  See id., at 47, 128.  This
modification was considered an improvement because it
provided additional monitoring by members of the general
public and independent candidates, who in most States
were not allowed to be represented by separate inspectors.
Otherwise, ``in order to perpetrate almost every election
fraud it would only be necessary to buy up the election
officers of the other party.''  Id., at 52.  Finally, New York
also prohibited any person from ``electioneering on election
day within any polling-place, or within one hundred feet of
any polling place.''  Id., at 131.  See generally, Evans 1821;
Rusk 26.
       The success achieved through these reforms was immedi-
ately noticed and widely praised.  See generally, Evans
2124; Rusk 2631, 4243.  One commentator remarked of
the New York law of 1888:
                    ``We have secured secrecy; and intimidation by
         employers, party bosses, police officers, saloonkeepers
         and others has come to an end.
                              In earlier times our polling places were fre-
quently, to quote the litany, `scenes of battle,
             murder, and sudden death.'  This also has come to
             an end, and until nightfall, when the jubilation
             begins, our election days are now as peaceful as
             our Sabbaths.
                              ``The new legislation has also rendered impossi-
ble the old methods of frank, hardy, straightfor-
ward and shameless bribery of voters at the polls.''
             W. Ivins, The Electoral System of the State of New York,
             Proceedings of the 29th Annual Meetin.g of
             the New York State Bar Association 316 (1906).
       The triumphs of 1888 set off a rapid and widespread
adoption of the Australian system in the United States.  By
1896, almost 90 percent of the States had adopted the
Australian system.  This accounted for 92 percent of the
national electorate.  See Rusk 3031.  See also Albright
2628; Evans 27; Justice Scalia, Concurring in Judgment,
post, at 2, n. 1 (citations to statutes passed before 1900).
       The roots of Tennessee's regulation can be traced back to
two provisions passed during this period of rapid reform.
Tennessee passed the first relevant provision in 1890 as
part of its switch to an Australian system.  In its effort to
``secur[e] the purity of elections,'' Tennessee provided that
only voters and certain election officials were permitted
within the room where the election was held or within 50
feet of the entrance.  The act did not provide any penalty
for violation and applied only in the more highly populated
counties and cities.  1890 Tenn. Pub. Acts, ch. 24, 12 and
13.
       The second relevant provision was passed in 1901 as an
amendment to Tennessee's ``Act to preserve the purity of
elections, and define and punish offenses against the
elective franchise.''  The original act, passed in 1897, made
it a misdemeanor to commit various election offenses,
including the use of bribery, violence or intimidation in
order to induce a person to vote or refrain from voting for
any particular person or measure.  1897 Tenn. Pub. Acts,
ch. 14.  The 1901 amendment made it a misdemeanor for
any person, except the officers holding the elections, to
approach nearer than 30 feet to any voter or ballot box.
This provision applied to all Tennessee elections.  1901
Tenn. Pub. Acts, ch. 142.
       These two laws remained relatively unchanged until
1967, when Tennessee added yet another proscription to its
secret ballot law.  This amendment prohibited the distribu-
tion of campaign literature ``on the same floor of a building,
or within one hundred (100) feet thereof, where an election
is in progress.''  1967 Tenn. Pub. Acts, ch. 85.
       In 1972, the State enacted a comprehensive code to
regulate the conduct of elections.  The code included a
section that proscribed the display and the distribution of
campaign material and the solicitation of votes within 100
feet of the entrance to a polling place.  The 1972 ``campaign-
free zone'' is the direct precursor of the restriction chal-
lenged in the present litigation.
       Today, all 50 States limit access to the areas in or around
polling places.  See App. to Pet. for Cert 26a-50a; Note,
Defoliating the Grassroots: Election Day Restrictions on
Political Speech, 77 Geo. L.J. 2137 (1989) (summarizing
statutes as of 1989).  The National Labor Relations Board
also limits activities at or near polling places in union-
representation elections.
       In sum, an examination of the history of election regula-
tion in this country reveals a persistent battle against two
evils:  voter intimidation and election fraud.  After an
unsuccessful experiment with an unofficial ballot system,
all 50 States, together with numerous other Western
democracies, settled on the same solution: a secret ballot
secured in part by a restricted zone around the voting
compartments.  We find that this wide-spread and time-
tested consensus demonstrates that some restricted zone is
necessary in order to serve the States' compelling interest
in preventing voter intimidation and election fraud.
       Respondent and the dissent advance three principal chal-
lenges to this conclusion.  First, respondent argues that
restricted zones are overinclusive because States could
secure these same compelling interests with statutes that
make it a misdemeanor to interfere with an election or to
use violence or intimidation to prevent voting.  See, e.g.,
Tenn. Code Ann. 219101 and 219115 (Supp. 1991).
We are not persuaded.  Intimidation and interference laws
fall short of serving a State's compelling interests because
they ``deal with only the most blatant and specific attempts''
to impede elections.  Cf. Buckley v. Valeo, 424 U.S. 1, 28
(1976) (existence of bribery statute does not preclude need
for limits on contributions to political campaigns).  More-
over, because law enforcement officers generally are barred
from the vicinity of the polls to avoid any appearance of
coercion in the electoral process, see Tenn. Code Ann.
27103 (1985), many acts of interference would go
undetected.  These undetected or less than blatant acts may
nonetheless drive the voter away before remedial action can
be taken.
       Second, respondent and the dissent argue that
Tennessee's statute is underinclusive because it does not
restrict other types of speech, such as charitable and
commercial solicitation or exit polling, within the 100foot
zone.  We agree that distinguishing among types of speech
requires that the statute be subjected to strict scrutiny.  We
do not, however, agree that the failure to regulate all
speech renders the statute fatally underinclusive.  In fact,
as one early commentator pointed out, allowing members of
the general public access to the polling place makes it more
difficult for political machines to buy off all the monitors.
See Wigmore 52.  But regardless of the need for such
additional monitoring, there is, as summarized above,
ample evidence that political candidates have used cam-
paign workers to commit voter intimidation or electoral
fraud.  In contrast, there is simply no evidence that political
candidates have used other forms of solicitation or exit
polling to commit such electoral abuses.  States adopt laws
to address the problems that confront them.  The First
Amendment does not require States to regulate for prob-
lems that do not exist.
       Finally, the dissent argues that we confuse history with
necessity.  Yet the dissent concedes that a secret ballot was
necessary to cure electoral abuses.  Contrary to the
dissent's contention, the link between ballot secrecy and
some restricted zone surrounding the voting area is not
merely timing"it is common sense.  The only way to
preserve the secrecy of the ballot is to limit access to the
area around the voter.  Accordingly, we hold that some
restricted zone around the voting area is necessary to
secure the State's compelling interest.
       The real question then is how large a restricted zone is
permissible or sufficiently tailored.  Respondent and the
dissent argue that Tennessee's 100-foot boundary is not
narrowly drawn to achieve the State's compelling interest
in protecting the right to vote.  We disagree.
       As a preliminary matter, the long, uninterrupted and
prevalent use of these statutes makes it difficult for States
to come forward with the sort of proof the dissent wishes to
require.  The majority of these laws were adopted originally
in the 1890s, long before States engaged in extensive
legislative hearings on election regulations.  The prevalence
of these laws, both here and abroad, then encouraged their
reenactment without much comment.  The fact that these
laws have been in effect for a long period of time also
makes it difficult for the States to put on witnesses who can
testify as to what would happen without them.  Finally, it
is difficult to isolate the exact effect of these laws on voter
intimidation and election fraud.  Successful voter intimida-
tion and election fraud is successful precisely because it is
difficult to detect.
       Furthermore, because a government has such a compel-
ling interest in securing the right to vote freely and
effectively, this Court never has held a State ``to the burden
of demonstrating empirically the objective effects on
political stability that [are] produced'' by the voting regula-
tion in question.  Munro v. Socialist Workers Party, 479
U.S. 189, 195 (1986).  Elections vary from year to year,
and place to place.  It is therefore difficult to make specific
findings about the effects of a voting regulation.  Moreover,
the remedy for a tainted election is an imperfect one.
Rerunning an election would have a negative impact on
voter turnout.  Thus, requiring proof that a 100-foot
boundary is perfectly tailored to deal with voter intimida-
tion and election fraud
         ``would necessitate that a State's political system
         sustain some level of damage before the legislature
         could take corrective action.  Legislatures, we think,
         should be permitted to respond to potential deficiencies
         in the electoral process with foresight rather than
         reactively, provided that the response is reasonable and
         does not significantly impinge on constitutionally
         protected rights.''  Id., at 195196 (emphasis added).
       We do not think that the minor geographic limitation
prescribed by 27111(b) constitutes such a significant
impingement.  Thus, we simply do not view the question
whether the 100-foot boundary line could be somewhat
tighter as a question of ``constitutional dimension.''  Munro
v. Socialist Workers Party, 479 U.S., at 197.  Reducing the
boundary to 25 feet, as suggested by the Tennessee Su-
preme Court, 802 S.W.2d, at 214, is a difference only in
degree, not a less restrictive alternative in kind.  Buckley v.
Valeo, 424 U.S., at 30.  As was pointed out in the dissenting
opinion in the Tennessee Supreme Court, it ``takes approxi-
mately 15 seconds to walk 75 feet.''  802 S.W.2d, at 215.
The State of Tennessee has decided that these last 15
seconds before its citizens enter the polling place should be
their own, as free from interference as possible.  We do not
find that this is an unconstitutional choice.
      At some measurable distance from the polls, of course,
governmental regulation of vote solicitation could effectively
become an impermissible burden akin to the statute struck
down in Mills v. Alabama, supra.  See also Meyer v. Grant,
486 U.S. 414 (1988) (invalidating absolute bar against the
use of paid circulators).  In reviewing challenges to specific
provisions of a State's election laws, however, this Court
has not employed any ```litmus-paper test' that will separate
valid from invalid restrictions.''  Anderson v. Celebrezze, 460
U.S., at 789 (quoting Storer v. Brown, 415 U.S. 724, 730
(1974)).  Accordingly, it is sufficient to say that in establish-
ing a 100-foot boundary, Tennessee is on the constitutional
side of the line.
       In conclusion, we reaffirm that it is the rare case in
which we have held that a law survives strict scrutiny.
This, however, is such a rare case.  Here, the State, as
recognized administrator of elections, has asserted that the
exercise of free speech rights conflicts with another funda-
mental right, the right to cast a ballot in an election free
from the taint of intimidation and fraud.  A long history, a
substantial consensus, and simple common sense show that
some restricted zone around polling places is necessary to
protect that fundamental right.  Given the conflict between
these two rights, we hold that requiring solicitors to stand
100 feet from the entrances to polling places does not
constitute an unconstitutional compromise.
       The judgment of the Tennessee Supreme Court is re-
versed and the case is remanded for further proceedings not
inconsistent with this opinion.
                                           It is so ordered.

       Justice Thomas took no part in the consideration or
decision of this case.



                 SUPREME COURT OF THE UNITED STATES
                       No. 90-1056
 
         CHARLES W. BURSON, ATTORNEY GENERAL AND
               REPORTER FOR TENNESSEE, PETITIONER v.
                       MARY REBECCA FREEMAN
           on writ of certiorari to the supreme court of
                    tennessee, middle division
                          [May 26, 1992]

       Justice Kennedy, concurring.
       Earlier this Term, I questioned the validity of the Court's
recent First Amendment precedents suggesting that a State
may restrict speech based on its content in the pursuit of a
compelling interest.  Simon & Schuster, Inc. v. New York
Crime Victims Bd., 502 U. S. ___, ______ (1991) (Kennedy,
J., concurring in judgment).  Under what I deem the proper
approach, neither a general content-based proscription of
speech nor a content-based proscription of speech in a
public forum can be justified unless the speech falls within
one of a limited set of well-defined categories.  See ibid.
Today's case warrants some elaboration on the meaning of
the term ``content-based'' as used in our jurisprudence.
       In Simon & Schuster, my concurrence pointed out the
seeming paradox that notwithstanding ``our repeated
statement that `above all else, the First Amendment means
that government has no power to restrict expression
because of its message, its ideas, its subject matter, or its
content,' '' id., at ______ (slip op., at 34), (quoting Police
Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972)), we had
fallen into the practice of suggesting that content-based
limits on speech can be upheld if confined in a narrow way
to serve a compelling state interest.   I continue to believe
that our adoption of the compelling interest test was
accomplished by accident, id., at ___ (slip op., at 2), and as
a general matter produces a misunderstanding that has the
potential to encourage attempts to suppress legitimate
expression.
       The test may have a legitimate role, however, in sorting
out what is and what is not a content-based restriction.  See
Simon & Schuster, supra, at ___ (slip op., at 5) (``we cannot
avoid the necessity of deciding . . . whether the regulation
is in fact content-based or content-neutral'').  As the Court
has recognized in the context of regulations of the time,
place, or manner of speech, ``[g]overnment regulation of
expressive activity is content neutral so long as it is
`justified without reference to the content of the regulated
speech.' ''  Ward v. Rock Against Racism, 491 U. S. 781, 791
(1989) (quoting Clark v. Community for Creative Non-
Violence, 468 U. S. 288, 293 (1984)) (emphasis added in
Ward).  In some cases, the fact that a regulation is content-
based and invalid because outside any recognized category
permitting suppression will be apparent from its face.  In
my view that was true of the New York statute we consid-
ered in Simon & Schuster, and no further inquiry was
necessary.  To read the statute was sufficient to strike it
down as an effort by government to restrict expression
because of its content.
       Discerning the justification for a restriction of expression,
however, is not always so straightforward as it was, or
should have been, in Simon & Schuster.  In some cases, a
censorial justification will not be apparent from the face of
a regulation which draws distinctions based on content, and
the government will tender a plausible justification unrelat-
ed to the suppression of speech or ideas.  There the compel-
ling interest test may be one analytical device to detect, in
an objective way, whether the asserted justification is in
fact an accurate description of the purpose and effect of the
law.  This explanation of the compelling interest analysis is
not explicit in our decisions; yet it does appear that in time,
place, and manner cases, the regulation's justification is a
central inquiry.  See, e.g., Ward v. Rock Against Racism,
supra, at 791; Clark v. Community for Creative Non-
Violence, supra, at 293; Heffron v. International Society for
Krishna Consciousness, Inc., 452 U. S. 640, 648649, and
n.12 (1981).  And in those matters we do not apply as strict
a requirement of narrow tailoring as in other contexts,
Ward v. Rock Against Racism, supra, at 797, although this
may be because in cases like Ward, Clark, and Heffron,
content neutrality was evident on the face of the regula-
tions once the justification was identified and became itself
the object of examination.
     The same use of the compelling interest test is adopted
today, not to justify or condemn a category of suppression
but to determine the accuracy of the justification the State
gives for its law.  The outcome of that analysis is that the
justification for the speech restriction is to protect another
constitutional right.  As I noted in Simon & Schuster, there
is a narrow area in which the First Amendment permits
freedom of expression to yield to the extent necessary for
the accommodation of another constitutional right.  502
U. S., at ___ (slip op. at 12, 5).  That principle can apply
here without danger that the general rule permitting no
content restriction will be engulfed by the analysis; for
under the statute the State acts to protect the integrity of
the polling place where citizens exercise the right to vote.
Voting is one of the most fundamental and cherished
liberties in our democratic system of government.  The
State is not using this justification to suppress legitimate
expression.  With these observations, I concur in the
opinion of Justice Blackmun and the judgment of the
Court.


               SUPREME COURT OF THE UNITED STATES
                       No. 90-1056
 
         CHARLES W. BURSON, ATTORNEY GENERAL AND
               REPORTER FOR TENNESSEE, PETITIONER v.
                       MARY REBECCA FREEMAN
           on writ of certiorari to the supreme court of
                    tennessee, middle division
                          [May 26, 1992]

       Justice Scalia, concurring in the judgment.
       If the category of  traditional public forum is to be a tool
of analysis rather than a conclusory label, it must remain
faithful to its name and derive its content from tradition.
Because restrictions on speech around polling places on
election day are as venerable a part of the American
tradition as the secret ballot, Tenn. Code Ann. 27111
(Supp. 1991) does not restrict speech in a traditional public
forum, and the  exacting scrutiny that the Court purports
to apply, ante, at 6, is inappropriate.  Instead, I believe that
27111, though content-based, is constitutional because
it is a reasonable, viewpoint-neutral regulation of a non-
public forum.  I therefore concur in the judgment of the
Court.
       As the Court correctly notes, the 100-foot zone established
by 27111 sometimes encompasses streets and sidewalks
adjacent to the polling places.  Ante, at 5, n. 2.  The Court's
determination that 27111 is subject to strict scrutiny is
premised on its view that these areas are  quintessential
public forums, having  `by long tradition . . . been devoted
to assembly and debate.'  Ante, at 5 (emphasis added).
Insofar as areas adjacent to functioning polling places are
concerned, that is simply not so.  Statutes such as
27111 have an impressively long history of general use.
Ever since the widespread adoption of the secret ballot in
the late 19th century, viewpoint-neutral restrictions on
election-day speech within a specified distance of the polling
place"or on physical presence there"have been common-
place, indeed prevalent.  By 1900, at least 34 of the 45
States (including Tennessee) had enacted such restric-
tions.  It is noteworthy that most of the statutes banning
election-day speech near the polling place specified the
same distance set forth in 27111 (100 feet), and it is
clear that the restricted zones often encompassed streets
and sidewalks.  Thus, the streets and sidewalks around
polling places have traditionally not been devoted to
assembly and debate.
       Nothing in the public forum doctrine or in this Court's
precedents warrants disregard of this longstanding tradi-
tion.   Streets and sidewalks are not public forums in all
places, see Greer v. Spock, 424 U.S. 828 (1976) (streets and
sidewalks on military base are not a public forum), and the
long usage of our people demonstrates that the portions of
streets and sidewalks adjacent to polling places are not
public forums at all times either.  This unquestionable
tradition could be accommodated, I suppose, by holding
laws such as 27111 to be covered by our doctrine of
permissible  time, place, and manner restrictions upon
public forum speech"which doctrine is itself no more than
a reflection of our traditions, see Perry Education Assn. v.
Perry Local Educators' Assn., 460 U.S. 37, 45 (1983).  The
problem with this approach, however, is that it would
require some expansion of (or a unique exception to) the
 time, place, and manner doctrine, which does not permit
restrictions that are not content-neutral (27111 prohibits
only electioneering speech).  Ibid.  It is doctrinally less
confusing to acknowledge that the environs of a polling
place, on election day, are simply not a  traditional public
forum"which means that they are subject to speech
restrictions that are reasonable and viewpoint-neutral.  Id.,
at 46.
       For the reasons that the Court believes 27111
survives exacting scrutiny, ante, at 720, I believe it is at
least reasonable; and respondent does not contend that it is
viewpoint-discriminatory.  I therefore agree with the
judgment of the Court that 27111 is constitutional.




                 SUPREME COURT OF THE UNITED STATES
                       No. 90-1056
 
         CHARLES W. BURSON, ATTORNEY GENERAL AND
               REPORTER FOR TENNESSEE, PETITIONER v.
                       MARY REBECCA FREEMAN
           on writ of certiorari to the supreme court of
                    tennessee, middle division
                          [May 26, 1992]

       Justice Stevens, with whom Justice O'Connor and
Justice Souter join, dissenting.
       The speech and conduct prohibited in the campaign-free
zone created by Tenn. Code Ann. 27111 (Supp. 1991) is
classic political expression.  As this Court has long recog-
nized, ``[d]iscussion of public issues and debate on the
qualifications of candidates are integral to the operation of
the system of government established by our Constitution.
The First Amendment affords the broadest protection to
such political expression in order `to assure [the] unfettered
interchange of ideas for the bringing about of political and
social changes desired by the people.'''  Buckley v. Valeo,
424 U. S. 1, 14 (1976) (citation omitted).  Therefore, I fully
agree with the plurality that Tennessee must show that its
```regulation is necessary to serve a compelling state interest
and that it is narrowly drawn to achieve that end.'''  Ante,
at 6 (citations omitted).  I do not agree, however, that
Tennessee has made anything approaching such a showing.

                                 I
       Tennessee's statutory ``campaign-free zone'' raises
con-stitutional concerns of the first magnitude.  The statute
directly regulates political expression and thus implicates
a core concern of the First Amendment.  Moreover, it
targets only a specific subject matter (campaign speech) and
a defined class of speakers (campaign workers) and thus
regulates expression based on its content.  In doing so, the
Tennessee statute somewhat perversely disfavors speech
that normally is accorded greater protection than the kinds
of speech that the statute does not regulate.  For these
reasons, Tennessee unquestionably bears the heavy burden
of demonstrating that its silencing of political expression is
necessary and narrowly tailored to serve a compelling state
interest.
       Statutes creating campaign-free zones outside polling
places serve two quite different functions"they protect
orderly access to the polls and they prevent last-minute
campaigning.  There can be no question that the former
constitutes a compelling state interest and that, in light of
our decision in Mills v. Alabama, 384 U. S. 214 (1966), the
latter does not.  Accordingly, a State must demonstrate that
the particular means it has fashioned to ensure orderly
access to the polls do not unnecessarily hinder last-minute
campaigning.
       Campaign-free zones are noteworthy for their broad, anti-
septic sweep.  The Tennessee zone encompasses at least
30,000 square feet around each polling place; in some
States, such as Kentucky and Wisconsin, the radius of the
restricted zone is 500 feet"silencing an area of over
750,000 square feet.  Even under the most sanguine
scenario of participatory democracy, it is difficult to imagine
voter turnout so complete as to require the clearing of
hundreds of thousands of square feet simply to ensure that
the path to the polling-place door remains opens and that
the curtain that protects the secrecy of the ballot box
remains closed.
       The fact that campaign-free zones cover such a large area
in some States unmistakably identifies censorship of
election-day campaigning as an animating force behind
these restrictions.  That some States have no problem
maintaining order with zones of 50 feet or less strongly
suggests that the more expansive prohibitions are not
necessary to maintain access and order.  Indeed, on its face,
Tennessee's statute appears informed by political concerns.
Although the statute initially established a 100-foot zone,
it was later amended to establish a 300-foot zone in 12 of
the State's 95 counties.  As the State Attorney General
observed, ``there is not a rational basis'' for this special
treatment, for there is no ``discernable reason why an
extension of the boundary . . . is necessary in'' those 12
counties.  Brief in Opposition 4a, Tenn. Att'y Gen. Op. No.
87185.
       Moreover, the Tennessee statute does not merely regu-
late conduct that might inhibit voting; it bars the simple
``display of campaign posters, signs, or other campaign
materials.''  27111(b).  Bumper stickers on parked cars
and lapel buttons on pedestrians are taboo.  The notion that
such sweeping restrictions on speech are necessary to
maintain the freedom to vote and the integrity of the ballot
box borders on the absurd.
       The evidence introduced at trial to demonstrate the
necessity for Tennessee's campaign-free zone was exception-
ally thin.  Although the State's sole witness explained the
need for special restrictions inside the polling place itself,
she offered no justification for a ban on political expression
outside the polling place.  On this record it is far from
surprising that the Tennessee Supreme Court"which
surely is more familiar with the State's electoral practices
and traditions than we are"concluded that the 100-foot
ban outside the polling place was not justified by regulatory
concerns.  This conclusion is bolstered by Tennessee law
which indicates that normal police protection is completely
adequate to maintain order in the area more than 10 feet
from the polling place.
       Perhaps in recognition of the poverty of the record, the
plurality"without briefing, or legislative or judicial
factfinding"looks to history to assess whether Tennessee's
statute is in fact necessary to serve the State's interests.
From its review of the history of electoral reform, the
plurality finds that
         ``all 50 States. . .settled on the same solution:  a secret
         ballot secured in part by a restricted zone around the
         voting compartments.  We find that this wide-spread
         and time-tested consensus demonstrates that some
         restricted zone is necessary in order to serve the States'
         compelling interest in preventing voter intimidation
         and election fraud.''  Ante, at 1415.
       This analysis is deeply flawed; it confuses history with
necessity, and mistakes the traditional for the indis-
pensable.  The plurality's reasoning combines two logical
errors:  First, the plurality assumes that a practice's long
life itself establishes its necessity; and second, the plurality
assumes that a practice that was once necessary remains
necessary until it is ended.
     With regard to the first, the fact that campaign-free zones
were, as the plurality indicates, introduced as part of a
broader package of electoral reforms does not demonstrate
that such zones were necessary.  The abuses that affected
the electoral system could have been cured by the institu-
tion of the secret ballot and by the heightened regulation of
the polling place alone, without silencing the political
speech outside the polling place.  In my opinion, more
than mere timing is required to infer necessity from
tradition.
       We have never regarded tradition as a proxy for necessity
where necessity must be demonstrated.  To the contrary,
our election-law jurisprudence is rich with examples of
traditions that, though longstanding, were later held to be
unnecessary.  For example, ``[m]ost of the early Colonies
had [poll taxes]; many of the States have had them during
much of their histories . . . .''  Harper v. Virginia Bd. of
Elections, 383 U. S. 663, 684 (1966) (Harlan, J., dissenting).
Similarly, substantial barriers to candidacy, such as
stringent petition requirements, see Williams v. Rhodes,
393 U. S. 23 (1968), property-ownership requirements, see
Turner v. Fouche, 396 U. S. 346 (1970), and onerous filing
fees, see Lubin v. Panish, 415 U. S. 709 (1974), were all
longstanding features of the electoral labyrinth.
       In fact, two of our most noted decisions in this area
involve, as does this case, Tennessee's electoral traditions.
Dunn v. Blumstein, 405 U. S. 330 (1972), which invalidated
Tennessee's 1-year residency requirement, is particularly
instructive.  Tennessee's residency requirement was indis-
putably ``traditional,'' having been in place since 1870.  App.
in Dunn v. Blumstein, O.T. 1971, No. 13, p.22.  As in this
case, the State defended its law on the basis of its interest
in ```secur[ing] the freedom of elections and the purity of the
ballot box.'''  Id., at 23.  Again like this case, Dunn involved
a conflict between two rights"the right to travel and the
right to vote.  The Court applied strict scrutiny, ruling that
residency requirements are ``unconstitutional unless the
State can demonstrate that such laws are `necessary to
promote a compelling governmental interest.'''  405 U. S.,
at 342 (emphasis in original) (citation omitted).  Although
we recognized that ``[p]reservation of the `purity of the
ballot box' is a formidable-sounding state interest,'' id., at
345, we rejected the State's argument that a 1-year require-
ment was necessary to promote that interest.  In doing so,
we did not even mention, let alone find determinative, the
fact that Tennessee's requirement was more than 100 years
old.
       In Baker v. Carr, 369 U. S. 186 (1962), we addressed the
apportionment of Tennessee's legislature.  The State's
apportionment regime had remained unchanged since 1901
and was such that, by the time of trial, ``40% of the voters
elect[ed] 63 of the 99 members of the [state] House'' of
Representatives.  Id., at 253 (Clark, J., concurring).
Although, as Justice Frankfurter observed in dissent,
```very unequal' representation'' had been a feature of the
Nation's political landscape since colonial times, id., at
307318, the Court was not bound by this long tradition.
Our other cases resemble Dunn and Baker in this way:
Never have we indicated that tradition was synonymous
with necessity.
       Even if we assume that campaign-free zones were once
somehow ``necessary,'' it would not follow that, 100 years
later, those practices remain necessary.  Much in our
political culture, institutions, and practices has changed
since the turn of the century: Our elections are far less
corrupt, far more civil, and far more democratic today than
100 years ago.  These salutary developments have substan-
tially eliminated the need for what is, in my opinion, a
sweeping suppression of core political speech.
       Although the plurality today blithely dispenses with the
need for factual findings to determine the necessity of
``traditional'' restrictions on speech, courts that have made
such findings with regard to other campaign-free zones
have, without exception, found such zones unnecessary.
See, e.g., Florida Comm. for Liability Reform v. McMillan,
682 F. Supp. 1536, 15411542 (MD Fla. 1988); Clean-Up '84
v. Heinrich, 582 F. Supp. 125 (MD Fla. 1984), aff'd, 759
F.2d 1511 (CA11 1985).  Likewise, courts that have invali-
dated similar restrictions on so-called ``exit polling'' by the
news media have, after careful factfinding, also declined to
find such prohibitions ``necessary.''  See, e.g., Firestone v.
News-Press Publishing Co., 538 So. 2d 457, 459 (Fla. 1989)
(invalidating Florida's 50-foot zone to the extent that it
reaches outside the polling room and noting that ``[a]t the
evidentiary hearing, no witnesses testified of any distur-
bances having occurred within fifty feet of the polling
room. . . . The state's unsubstantiated concern of potential
disturbance is not sufficient to overcome the chilling effect
on first amendment rights.''); Daily Herald Co. v. Munro,
838 F. 2d 380, 385, n.8 (CA9 1988) (observing with regard
to Washington's 300-foot zone that ```[t]here isn't one iota of
testimony about a single voter that was upset, or intimidat-
ed, or threatened''' (quoting trial transcript)); National
Broadcasting Co. v. Cleland, 697 F. Supp. 1204, 12111212
(ND Ga. 1988); CBS Inc. v. Smith, 681 F. Supp. 794, 803
(SD Fla. 1988).  All of these courts, having received evi-
dence on this issue, were far better situated than we are to
assess the contemporary necessity of campaign-free zones.
All of these courts concluded that such suppression of
expression is unnecessary, suggesting that such zones were
something of a social atavism.  To my mind, this recent
history, developed in the context of an adversarial search
for the truth, indicates that, whatever the original historical
basis for campaign-free zones may have been, their contin-
ued ``necessity'' has not been established.  Especially when
we deal with the First Amendment, when the reason for a
restriction disappears, the restriction should as well.
                                II
       In addition to sweeping too broadly in its reach,
Tennessee's campaign-free zone selectively prohibits speech
based on content.  Like the statute the Court found invalid
in First National Bank of Boston v. Bellotti, 435 U. S. 765,
785 (1978), the Tennessee statute regulates ``the subjects
about which persons may speak and the speakers who may
address a public issue.''  Within the zone, 27111 silences
all campaign-related expression, but allows expression on
any other subject: religious, artistic, commercial speech,
even political debate and solicitation concerning issues or
candidates not on the day's ballot.  Indeed, as I read it,
27111 does not prohibit exit polling, which surely
presents at least as great a potential interference with
orderly access to the polls as does the distribution of
campaign leaflets, the display of campaign posters, or the
wearing of campaign buttons.  This discriminatory feature
of the statute severely undercuts the credibility of its
purported law-and-order justification.
       Tennessee's content-based discrimination is particularly
problematic because such a regulation will inevitably favor
certain groups of candidates.  As the testimony in this case
illustrates, several groups of candidates rely heavily onlast-minute
campaigning.  See App. 2223.  Candidates
with fewer resources, candidates for lower visibility offices,
and ``grassroots'' candidates benefit disproportionately from
last-minute campaigning near the polling place.  See Note,
Defoliating the Grassroots: Election Day Restrictions on
Political Speech, 77 Geo. L. J. 2137, 21582160 (1989)
(collecting authorities).
        Although the plurality recognizes that the Tennessee
statute is content-based, see ante, at 56, it does not inquire
into whether that discrimination itself is related to any pur-
ported state interest.  To the contrary, the plurality makes
the surprising and unsupported claim that the selective
regulation of protected speech is justified because,  [t]he
First Amendment does not require States to regulate for
problems that do not exist.  Ante, at 16.  Yet earlier this
Term, the Court rejected an asserted state interest because
that interest ``ha[d] nothing to do with the State's'' content-
based distinctions among expressive activities.  Simon &
Schuster, Inc. v. Members of New York Crime Victims Bd.,
502 U. S. ___, ___ (1991) (slip op., at 13); see also Arkansas
Writers' Project, Inc. v. Ragland, 481 U. S. 221, 231 (1987).
Similarly in Carey v. Brown, 447 U. S. 455, 464465 (1980),
the Court acknowledged Illinois' interest in ``residential
privacy'' but invalidated that State's ban on picketing
because its distinction between labor and non-labor picket-
ing could not be ``justified by reference to the State's
interest in maintaining domestic tranquility.''
       In this case the same is true: Tennessee's differential
treatment of campaign speech furthers no asserted state
interest.  Access to and order around the polls would bejust as
threatened by the congregation of citizens concerned
about a local environmental issue not on the ballot as by
the congregation of citizens urging election of their favored
candidate.  Similarly, assuming that disorder immediately
outside the polling place could lead to the commission of
errors or the perpetration of fraud, such disorder could just
as easily be caused by a religious dispute sparked by a
colporteur as by a campaign-related dispute sparked by a
campaign worker.  In short, Tennessee has failed to point
to any legitimate interest that would justify its selective
regulation of campaign-related expression.

                                III
       Although the plurality purports to apply ``exacting
scrutiny,'' its three marked departures from that familiar
standard may have greater significance for the future than
its precise holding about campaign-free zones.  First, the
plurality declines to take a hard look at whether a state law
is in fact ``necessary.''  Under the plurality's analysis, a
State need not demonstrate that contemporary demands
compel its regulation of protected expression; it need only
show that that regulation can be traced to a longstanding
tradition.
       Second, citing Munro v. Socialist Workers Party, 479
U. S. 189 (1986), the plurality lightens the State's burden
of proof in showing that a restriction on speech is ``narrowly
tailored.''  In Munro, we upheld a Washington ballot-access
law and, in doing so, observed that we would not ``requir[e]
a State to make a particularized showing of the existence of
voter confusion, ballot overcrowding, or the presence of
frivolous candidacies prior to the imposition of reasonable
restrictions on ballot access.''  Id., at 194195.  We stated
that legislatures ``should be permitted to respond to
potential deficiencies in the electoral process with foresight
rather than reactively, provided that the response is
reasonable and does not significantly impinge on constitu-
tionally protected rights.''  Id., at 195196.  I have substan-
tial doubts about the plurality's extension of Munro's
reasoning to this case, most fundamentally because I
question the plurality's assumption that campaign-free
zones do ``not significantly impinge on constitutionally
protected rights.''  Not only is this the very question before
us, but in light of the sweep of such zones and the vital
First Amendment interests at stake, I do not know how
that assumption can be sound.
       Third, although the plurality recognizes the problematic
character of Tennessee's content-based suppressive regula-
tion, ante, at 56, it nonetheless upholds the statute
because ``there is simply no evidence that commercial or
charitable solicitation outside the polling place poses the
same potential dangers as campaigning outside the polling
place.  Ante, at 16.  This analysis contradicts a core premise
of strict scrutiny"namely, that the heavy burden of
justification is on the State.  The plurality has effectively
shifted the burden of proving the necessity of content
discrimination from the State to the plaintiff.
       In sum, what the plurality early in its opinion calls
``exacting scrutiny,'' ante, at 6, appears by the end of its
analysis to be neither exacting nor scrutiny.  To borrow a
mixed metaphor, the plurality's scrutiny is  toothless.
Mathews v. Lucas, 427 U. S. 495, 510 (1976).

                                IV
       Ours is a Nation rich with traditions.  Those traditions
sometimes support, and sometimes are superseded by,
constitutional rules.  By tradition, for example, presidential
campaigns end on election eve; yet Congress certainly could
not enforce that tradition by enacting a law proscribing
campaigning on election day.  At one time as well, bans on
election-day editorial endorsements were traditional in
some States, but Mills v. Alabama, 384 U. S. 214 (1966),
established that such bans are incompatible with the First
Amendment.
       In Mills, we set aside the conviction of a newspaper editor
who violated such a ban.  In doing so, we declined to accept
the State's analogy between the electoral process and the
judicial process, and its claim that the State could, on
election day, insulate voters from political sentiments and
ideas much the same way as a jury is sequestered.  We
squarely rejected the State's claim that its ban was justified
by the need to protect the public ```from confusive last-
minute charges and countercharges and the distribution of
propaganda in an effort to influence voters on an election
day.'''  Id., at 219 (quoting State v. Mills, 278 Ala. 188,
195196, 176 So. 2d 884, 890 (1965)).  To the contrary, we
recognized that it is precisely on election day that advocacy
and campaigning ``can be most effective.''  Mills, 384 U. S.,
at 219.  Mills stands for the simple proposition that,
tradition notwithstanding, the State does not have a
legitimate interest in insulating voters from election-day
campaigning.  Thus, in light of Mills, the fact that cam-
paign-free zones are ``traditional'' tends to undermine,
rather than to support, the validity of the Tennessee
statute.  In short, we should scrutinize the Tennessee
statute for what it is"a police power regulation that also
silences a substantial amount of protected political expres-
sion.
       In my opinion, the presence of campaign workers outside
a polling place is, in most situations, a minor nuisance.  But
we have long recognized that ```the fact that society may
find speech offensive is not a sufficient reason for suppress-
ing it.'''  Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55
(1988) (citation omitted).  Although we often pay homage to
the electoral process, we must be careful not to confuse
sanctity with silence.  The hubbub of campaign workers
outside a polling place may be a nuisance, but it is also the
sound of a vibrant democracy.
       In silencing that sound, Tennessee ``trenches upon an
area in which the importance of First Amendment protec-
tions is `at its zenith,''' Meyer v. Grant, 486 U. S. 414, 425
(1988) (citation omitted).  For that reason, Tennessee must
shoulder the burden of demonstrating that its restrictions
on political speech are no broader than necessary to protect
orderly access to the polls.  It has not done so.
       I therefore respectfully dissent.
 

 
