Slip opinion

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 pre-
pared 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

R. A. V. v. CITY OF ST. PAUL, MINNESOTA
 certiorari to the supreme court of minnesota
No. 90-7675.   Argued December 4, 1991"Decided
            June 22, 1992

After allegedly burning a cross on a black family-
's lawn, petitioner R. A. V. was charged under,
inter alia, the St. Paul, Minnesota, Bias-Moti-
vated Crime Ordinance, which prohibits the dis-
play 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, reli-
gion or gender.''  The trial court dismissed this
charge on the ground that the ordinance was
substantially overbroad and impermissibly con-
tent-based, but the State Supreme Court re-
versed.  It rejected the overbreadth claim be-
cause 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 Hamp-
shire, 315 U.S. 568, 572, a category of expres-
sion 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 govern-
mental interest in protecting the community
against bias-motivated threats to public safe-
ty and order.
Held:The ordinance is facially invalid under the
First Amendment.  Pp.2-18.
(a)This Court is bound by the state court's
construction of the ordinance as reaching only
expressions constituting ``fighting words.''
However, R. A. V.'s request that the scope of
the Chaplinsky formulation be modified, thereby
invalidating the ordinance as substantially
overbroad, need not be reached, since the ordi-
nance unconstitutionally prohibits speech on
the basis of the subjects the speech addresses.
Pp.2-3.
(b)A few limited categories of speech, such as
obscenity, defamation, and fighting words, may
be regulated because of their constitutionally
proscribable content.  However, these catego-
ries are not entirely invisible to the Constitu-
tion, and government may not regulate them
based on hostility, or favoritism, towards a
nonproscribable message they contain.  Thus the
regulation of ``fighting words'' may not be based
on nonproscribable content.  It may, however, be
underinclusive, addressing some offensive in-
stances and leaving other, equally offensive,
ones alone, so long as the selective proscrip-
tion is not based on content, or there is no
realistic possibility that regulation of ideas is
afoot.  Pp.4-12.
(c)The ordinance, even as narrowly construed
by the State Supreme Court, is facially uncon-
stitutional because it imposes special prohibi-
tions on those speakers who express views on
the disfavored subjects of ``race, color, creed,
religion or gender.''  At the same time, it per-
mits displays containing abusive invective if
they are not addressed to those topics.  More-
over, in its practical operation the ordinance
goes beyond mere content, to actual viewpoint,
discrimination.  Displays containing ``fighting
words'' that do not invoke the disfavored sub-
jects would seemingly be useable ad libitum by
those arguing in favor of racial, color, etc.
tolerance and equality, but not by their oppo-
nents.  St. Paul's desire to communicate to
minority groups that it does not condone the
``group hatred'' of bias-motivated speech does
not justify selectively silencing speech on the
basis of its content.  Pp.12-15.
(d)The content-based discrimination reflected
in the ordinance does not rest upon the very
reasons why the particular class of speech at
issue is proscribable, it is not aimed only at
the ``secondary effects'' of speech within the
meaning of Renton v. Playtime Theatres, Inc., 475
U.S. 41, and it is not for any other reason the
sort that does not threaten censorship of
ideas.  In addition, the ordinance's content
discrimination is not justified on the ground
that the ordinance is narrowly tailored to
serve a compelling state interest in ensuring
the basic human rights of groups historically
discriminated against, since an ordinance not
limited to the favored topics would have pre-
cisely the same beneficial effect.  Pp.15-18.
464 N.W.2d 507, reversed and remanded.

Scalia, J., delivered the opinion of the Court,
in which Rehnquist, C. J., and Kennedy, Souter,
and Thomas, JJ., joined.  White, J., filed an opinion
concurring in the judgment, in which Blackmun and
O'Connor, JJ., joined, and in which Stevens, J.,
joined except as to Part I-A.  Blackmun, J., filed
an opinion concurring in the judgment.  Stevens,
J., filed an opinion concurring in the judgment, in
Part I of which White and Blackmun, JJ., joined.




Opinion
NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme 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. 90-7675
              --------
   R. A. V., PETITIONER v. CITY OF
              ST. PAUL, MINNESOTA
 on writ of certiorari to the supreme court of
                   minnesota
                [June 22, 1992]

  Justice Scalia delivered the opinion of the
Court.
  In the predawn hours of June 21, 1990, petitioner
and several other teenagers allegedly assembled
a crudely-made cross by taping together broken
chair legs.  They then allegedly burned the cross
inside the fenced yard of a black family that lived
across the street from the house where petition-
er was staying.  Although this conduct could have
been punished under any of a number of laws, 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 prop-
erty a symbol, object, appellation, character-
ization or graffiti, including, but not limited
to, a burning cross or Nazi swastika, which one
knows or has reasonable grounds to know
arouses anger, alarm or resentment in others
on the basis of race, color, creed, religion or
gender commits disorderly conduct and shall be
guilty of a misdemeanor.
Petitioner moved to dismiss this count on the
ground that the St. Paul ordinance was substan-
tially overbroad and impermissibly content-based
and therefore facially invalid under the First
Amendment.  The trial court granted this motion,
but the Minnesota Supreme Court reversed.  That
court rejected petitioner's overbreadth claim
because, as construed in prior Minnesota cases,
see, e.g., In re Welfare of S. L. J., 263 N. W. 2d 412
(Minn. 1978), the modifying phrase  arouses anger,
alarm or resentment in others limited the reach
of the ordinance to conduct that amounts to
 fighting words, i.e.,  conduct that itself in-
flicts injury or tends to incite immediate violence
. . ., In re Welfare of R. A. V., 464 N. W. 2d 507, 510
(Minn. 1991) (citing Chaplinsky v. New Hampshire, 315
U. S. 568, 572 (1942)), and therefore the ordinance
reached only expression  that the first amend-
ment does not protect.  464 N. W. 2d, at 511.  The
court also concluded that the ordinance was not
impermissibly content-based because, in its view,
 the ordinance is a narrowly tailored means
toward accomplishing the compelling governmental
interest in protecting the community against
bias-motivated threats to public safety and
order.  Ibid.  We granted certiorari, 501 U. S. ___
(1991).
                       I
  In construing the St. Paul ordinance, we are
bound by the construction given to it by the
Minnesota court.  Posadas de Puerto Rico Associ-
ates v. Tourism Co. of Puerto Rico, 478 U. S. 328,
339 (1986); New York v. Ferber, 458 U. S. 747, 769,
n. 24 (1982); Terminiello v. Chicago, 337 U. S. 1, 4
(1949).  Accordingly, we accept the Minnesota
Supreme Court's authoritative statement that the
ordinance reaches only those expressions that
constitute  fighting words within the meaning of
Chaplinsky.  464 N. W. 2d, at 510-511.  Petitioner
and his amici urge us to modify the scope of the
Chaplinsky formulation, thereby invalidating the
ordinance as  substantially overbroad, Broadri-
ck 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.
   The First Amendment generally prevents govern-
ment 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. ___, ___ (1991) (slip op.,
at 8-9); id., at ___ (Kennedy, J., concurring in
judgment) (slip op., at 3-4); Consolidated Edison Co.
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 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 limita-
tions.  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 ___ (Kennedy, J.,
concurring in judgment) (slip op., at 4).  Our deci-
sions since the 1960's have narrowed the scope of
the traditional categorical exceptions for defa-
mation, 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 jurispru-
dence.
  We have sometimes said that these categories of
expression are  not within the area of constitu-
tionally protected speech, Roth, supra, at 483;
Beauharnais, supra, at 266; Chaplinsky, supra, at
571-572, or that the  protection of the First
Amendment does not extend to them, Bose Corp. v.
Consumers Union of United States, Inc., 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 regu-
lated because of their constitutionally proscribab-
le 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 content discrimination unrelated to
their distinctively proscribable content.  Thus,
the government may proscribe libel; but it may not
make the further content discrimination of pro-
scribing 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 proposi-
tion 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
4 (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-noth-
ing-at-all approach to First Amendment protec-
tion is at odds with common sense and with our
jurisprudence as well.  It is 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 6; sometimes
they are quite expressive indeed.  We have not
said that they constitute  no part of the expres-
sion of ideas, but only that they constitute  no
essential part of any exposition of ideas.
Chaplinsky, 315 U. S., at 572 (emphasis added).
     The proposition that a particular instance of
speech can be proscribable on the basis of one
feature (e.g., obscenity) but not on the basis of
another (e.g., opposition to the city government)
is commonplace, and has found application in many
contexts.  We have long held, for example, that
nonverbal expressive activity can be banned
because of the action it entails, but not because
of the ideas it expresses"so that burning a flag
in violation of an ordinance against outdoor fires
could be punishable, whereas burning a flag in
violation of an ordinance against dishonoring the
flag is not.  See Johnson, 491 U. S., at 406-407.
See also Barnes v. Glen Theatre, Inc., 501 U. S. ___,
___-___ (1991) (plurality) (slip op., at 4-6); id., at
___-___ (Scalia, J., concurring in judgment) (slip
op., at 5-6); id., at ___-___ (Souter, J., concur-
ring in judgment) (slip op., at 1-2); United States v.
O'Brien, 391 U. S. 367, 376-377 (1968).  Similarly, we
have upheld reasonable  time, place, or manner
restrictions, but only if they are  justified
without reference to the content of the regulated
speech.  Ward v. Rock Against Racism, 491 U. S. 781,
791 (1989) (internal quotation marks omitted); see
also Clark v. Community for Creative Non-Violence,
468 U. S. 288, 298 (1984) (noting that the O'Brien
test differs little from the standard applied to
time, place, or manner restrictions).  And just as
the power to proscribe particular speech on the
basis of a noncontent element (e.g., noise) does
not entail the power to proscribe the same speech
on the basis of a content element; so also, the
power to proscribe it on the basis of one content
element (e.g., obscenity) does not entail the power
to proscribe it on the basis of other content
elements.
  In other words, the exclusion of  fighting words
from the scope of the First Amendment simply
means that, for purposes of that Amendment, the
unprotected features of the words are, despite
their verbal character, essentially a  nonspeech
element of communication.  Fighting words are thus
analogous to a noisy sound truck: Each is, as
Justice Frankfurter recognized, a  mode of
speech, Niemotko v. Maryland, 340 U. S. 268, 282
(1951) (Frankfurter, J., concurring in result); both
can be used to convey an idea; but neither has, in
and of itself, a claim upon the First Amendment.
As with the sound truck, however, so also with
fighting words: The government may not regulate
use based on hostility"or favoritism"towards the
underlying message expressed.  Compare Frisby v.
Schultz, 487 U. S. 474 (1988) (upholding, against
facial challenge, a content-neutral ban on tar-
geted residential picketing) with Carey v. Brown,
447 U. S. 455 (1980) (invalidating a ban on residen-
tial picketing that exempted labor picketing).
  The concurrences describe us as setting forth
a new First Amendment principle that prohibition
of constitutionally proscribable speech cannot be
 underinclusiv[e], post, at 6 (White, J., concur-
ring in judgment)"a First Amendment  absolutism
whereby  within a particular `proscribable' cate-
gory of expression, . . . a government must either
pro-scribe all speech or no speech at all, post,
at 4 (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 prohibi-
tion of proscribable speech.  There is no problem
whatever, for example, with a State's prohibiting
obscenity (and other forms of proscribable ex-
pression) only in certain media or markets, for
although that prohibition would be  underinclusi-
ve, 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) (1988),
which prohibits obscene telephone communications).

  Even the prohibition against content discrimina-
tion that we assert the First Amendment requires
is not absolute.  It applies differently in the
context of proscribable speech than in the area
of fully protected speech.  The rationale of the
general prohibition, after all, is that content
discrimination  rais[es] the specter that the
Government may effectively drive certain ideas or
viewpoints from the marketplace, Simon & Schust-
er, 502 U. S., at ___ (slip op., at 9); Leathers v.
Medlock, 499 U. S. ___, ___ (1991); FCC v. League of
Women Voters of California, 468 U. S. 364, 383-384
(1984); Consolidated Edison Co., 447 U. S., at 536;
Police Dept. of Chicago v. Mosley, 408 U. S., at
95-98.  But content discrimination among various
instances of a class of proscribable speech often
does not pose this threat.
  When the basis for the content discrimination
consists entirely of the very reason the entire
class of speech at issue is proscribable, no
significant danger of idea or viewpoint discrimi-
nation exists.  Such a reason, having been ad-
judged 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 illus-
trate: 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. ___ (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  overwhel-
min[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 6-7), 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 Pharmacy Bd. v.
Virginia Citizens Consumer Council, Inc., 425 U. S.
748, 771-772 (1976)) is in its view greater there.
Cf. Morales v. Trans World Airlines, Inc., 504 U. S.
___ (1992) (state regulation of airline advertis-
ing); 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., L. A. Times, Aug. 8, 1989, sec-
tion 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 Pharmacy Bd., supra, at 771); see also
Young v. American Mini Theatres, Inc., 427 U. S. 50,
71, n. 34 (1976) (plurality); id., at 80-82 (Powell, J.,
concurring); Barnes, 501 U. S., at ___-___ (Souter,
J., concurring in judgment) (slip op., at 3-7).
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 ___ (plurality) (slip op.,
at 4); id., at ___ (Scalia, J., concurring in judg-
ment) (slip op., at 5-6); id., at ___ (Souter, J.,
concurring in judgment) (slip op., at 1-2); 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 viola-
tion 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; 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 proposi-
tion 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 total-
ly 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.
                    II
  Applying these principles to the St. Paul ordi-
nance, we conclude that, even as narrowly con-
strued 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 vio-
lence,  on the basis of race, color, creed, religion
or gender.  Displays containing abusive invec-
tive, no matter how vicious or severe, are per-
missible 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 Amend-
ment 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 ___ (slip op., at 8-9); Arkansas Writers'
Project, Inc. v. Ragland, 481 U. S. 221, 229-230
(1987).
  In its practical operation, moreover, the ordi-
nance goes even beyond mere content discrimina-
tion, 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 them-
selves 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 that speaker's opponents.  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.  St. Paul has
no such authority to license one side of a debate
to fight freestyle, while requiring the other to
follow Marquis of Queensbury 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 prohibi-
tion of fighting words that contain (as the Minne-
sota Supreme Court repeatedly emphasized) mes-
sages of  bias-motivated hatred and in particu-
lar, 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, Jus-
tice Stevens suggests that this  fundamentally
misreads the ordinance.  Post, at 18-19.  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 9.  This is word-play.  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 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 Respon-dent 8.  Indeed, St. Paul argued in the
Juvenile Court that  [t]he burning of a cross does
express a message and it is, in fact, the content
of that message which the St. Paul Ordinance
attempts to legislate.  Memorandum from the
Ramsey County Attorney to the Honorable Charles
A. Flinn, Jr., dated July 13, 1990, in In re Welfare
of R. A. V., No. 89-D-1231 (Ramsey Cty. Juvenile
Ct.), p. 1, reprinted in App. to Brief for Petitioner
C-1.
  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 within 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 proscri-bable.  As explained
earlier, see supra, at 8, the reason why fighting
words are categorically excluded from the protec-
tion of the First Amendment is not that their
content communicates any particular idea, but
that their content embodies a particularly intol-
erable (and socially unnecessary) mode of ex-
pressing 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 threa-
tening (as opposed to a merely obnoxious) manner.
Rather, it has proscribed fighting words of what-
ever 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  pro-
tect 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 Re-
spondent 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 second-
ary effects within the meaning of Renton.  As we
said in Boos v. Barry, 485 U. S. 312 (1988),
 [l]isteners' 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.).
    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 confirma-
tion of, that suspicion.
  Finally, St. Paul and its amici defend the conclu-
sion of the Minnesota Supreme Court that, even if
the ordinance regulates expression based on
hostility towards its protected ideological
content, this discrimination is nonetheless
justified because it is narrowly tailored to serve
compelling state interests.  Specifically, they
assert that the ordinance helps to ensure the
basic human rights of members of groups that have
historically been subjected to discrimination,
including the right of such group members to live
in peace where they wish.  We do not doubt that
these interests are compelling, and that the
ordinance can be said to promote them.  But the
 danger of censorship presented by a facially
content-based statute, Leathers v. Medlock, 499
U. S. ___, ___ (1991) (slip op., at 8), requires that
that weapon be employed only where it is  neces-
sary to serve the asserted [compelling] interest,
Burson v. Freeman, 504 U. S. ___, ___ (1992) (plural-
ity) (slip op., at 8) (emphasis added); Perry Educa-
tion Assn. v. Perry Local Educators' Assn., 460 U. S.
37, 45 (1983).  The existence of adequate content-
neutral alternatives thus  undercut[s] signifi-
cantly any defense of such a statute, Boos v.
Barry, supra, at 329, casting considerable doubt
on the government's protestations that  the
asserted justification is in fact an accurate
description of the purpose and effect of the law,
Burson, supra, at ___ (Kennedy, J., concurring)
(slip op., at 2).  See Boos, supra, at 324-329; cf.
Minneapolis Star & Tribune Co. v. Minnesota Comm'r
of Revenue, 460 U. S. 575, 586-587 (1983).  The
dispositive question in this case, therefore, is
whether content discrimination is reasonably
necessary to achieve St. Paul's compelling inter-
ests; it plainly is not.  An ordinance not limited to
the favored topics, for example, would have
precisely the same beneficial effect.  In fact the
only interest distinctively served by the content
limitation is that of displaying the city council's
special hostility towards the particular biases
thus singled out.  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 limita-
tions upon speakers who (however benightedly)
disagree.
                 *     *     *
  Let there be no mistake about our belief that
burning a cross in someone's front yard is repre-
hensible.  But St. Paul has sufficient means at its
disposal to prevent such behavior without adding
the First Amendment to the fire.
  The judgment of the Minnesota Supreme Court is
reversed, and the case is remanded for proceed-
ings not inconsistent with this opinion.

                             It is so ordered.


Concur 1
      SUPREME COURT OF THE UNITED STATES--------
              No. 90-7675
              --------
   R. A. V., PETITIONER v. CITY OF
              ST. PAUL, MINNESOTA
 on writ of certiorari to the supreme court of
                   minnesota
                [June 22, 1992]

  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 crimin-
alizes not only unprotected expression but ex-
pression protected by the First Amendment.  See
Part II, infra.  Instead,  find[ing] it unnecessary
to consider the questions upon which we granted
review, ante, at 3, the Court holds the ordi-
nance facially unconstitutional on a ground that
was never presented to the Minnesota Supreme
Court, a ground that has not been briefed by the
parties before this Court, a ground that requires
serious departures from the teaching of prior
cases and is inconsistent with the plurality
opinion in Burson v. Freeman, 504 U. S. --- (1992),
which was joined by two of the five Justices in the
majority in the present case.
  This Court ordinarily is not so eager to abandon
its precedents.  Twice within the past month, the
Court has declined to overturn longstanding but
controversial decisions on questions of constitu-
tional law.  See Allied Signal, Inc. v. Director,
Division of Taxation, 504 U. S. " (1992); Quill Corp.
v. North Dakota, 504 U. S. " (1992).  In each case, we
had the benefit of full briefing on the critical
issue, so that the parties and amici had the
opportunity to apprise us of the impact of a
change in the law.  And in each case, the Court
declined to abandon its precedents, invoking the
principle of stare decisis.  Allied Signal, Inc., su-
pra, at " (slip op., at 12); Quill Corp., supra, at "
(slip op., at17-18).
   But in the present case, the majority casts
aside long-established First Amendment doctrine
without the benefit of briefing and adopts an
untried theory.  This is hardly a judicious way of
proceeding, and the Court's reasoning in reaching
its result is transparently wrong.
                       I
                       A
  This Court's decisions have plainly stated that
expression falling within certain limited catego-
ries so lacks the values the First Amendment was
designed to protect that the Constitution affords
no protection to that expression.  Chaplinsky v.
New Hampshire, 315 U. S. 568 (1942), made the point
in the clearest possible terms:
 There are certain well-defined and narrowly
limited classes of speech, the prevention and
punishment of which have never been thought
to raise any Constitutional problem. . . .  It
has been well observed that such utterances
are no essential part of any exposition of
ideas, and are of such slight social value as a
step to truth that any benefit that may be
derived from them is clearly outweighed by the
social interest in order and morality.  Id., at
571-572.
See also Bose Corp. v. Consumers Union of United
States, Inc., 466 U. S. 485, 504 (1984) (citing
Chaplinsky).
  Thus, as the majority concedes, see ante, at 5,
this Court has long held certain discrete catego-
ries 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 theatre may not claim the protection of
the First Amendment.  Schenck v. United States,
249 U. S. 47, 52 (1919).  The Court has concluded
that neither child pornography, nor obscenity, is
protected by the First Amendment.  New York v.
Ferber, 458 U. S. 747, 764 (1982); Miller v. Califor-
nia, 413 U. S. 15, 20 (1973); Roth v. United States,
354 U. S. 476, 484-485 (1957).  And the Court has
observed that,  [l]eaving aside the special con-
siderations when public officials [and public
figures] are the target, a libelous publication is
not protected by the Constitution.  Ferber,
supra, at 763 (citations omitted).
  All of these categories are content based.  But
the Court has held that 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 de-
parted from this principle, emphasizing repeatedly
that,  within the confines of [these] given classi-
fication[s], the evil to be restricted so over-
whelmingly 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 distin-
guishing between expression that the government
may regulate freely and that which it may regu-
late on the basis of content only upon a showing
of compelling need.

  Today, however, the Court announces that
earlier Courts did not mean their repeated statements that
certain categories of expression are  not within
the area of constitutionally protected speech.
Roth, supra, at 483.  See ante, at 5, citing Beauha-
rnais v. Illinois, 343 U. S. 250, 266 (1952); Chaplin-
sky, supra, at 571-572; Bose Corp., supra, at 504;
Sable Communications of Cal., Inc. v. FCC, 492 U. S.
115, 124 (1989).  The present Court submits that
such clear statements  must be taken in context
and are not  literally true.  Ante, at 5.
  To the contrary, those statements meant pre-
cisely what they said:  The categorical approach
is a firmly entrenched part of our First Amend-
ment jurisprudence.  Indeed, the Court in Roth
reviewed the guarantees of freedom of expression
in effect at the time of the ratification of the
Constitution and concluded,  [i]n light of this
history, it is apparent that the unconditional
phrasing of the First Amendment was not intended
to protect every utterance.  354 U. S., at 482-4-
83.
  In its decision today, the Court points to
 [n]othing . . . in this Court's precedents war-
rant[ing] disregard of this longstanding tradi-
tion.  Burson, 504 U. S., at --- (slip op., at 3)
(Scalia, J., concurring in judgment); Allied Signal,
Inc., supra, at --- (slip op., at 12).  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 strict-
ly than others because of their content.  The
Court announces that such content-based distinc-
tions violate the First Amendment because  the
government may not regulate use based on hostil-
ity"or favoritism"towards the underlying message
expressed.  Ante, at 8.  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 6.  It is
inconsistent to hold that the government may
proscribe an entire category of speech because
the content of that speech is evil, Ferber, supra,
at 763-764; but that the government may not
treat a subset of that category differently
without violating the First Amendment; the con-
tent 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 7, is no
answer.  Fighting words are not a means of ex-
changing views, rallying supporters, or register-
ing a protest; they are directed against individu-
als to provoke violence or to inflict injury.
Chaplinsky, 315 U. S., at 572.  Therefore, a ban on
all fighting words or on a subset of the fighting
words category would restrict only the social evil
of hate speech, without creating the danger of
driving viewpoints from the marketplace.  See
ante, at 9.
  Therefore, the Court's insistence on inventing
its brand of First Amendment underinclusiveness
puzzles me.  The overbreadth doctrine has the
redeeming virtue of attempting to avoid the
chilling of protected expression, Broadrick v.
Oklahoma, 413 U. S. 601, 612 (1973); Osborne v. Ohio,
495 U. S. 103, 112, n. 8 (1990); Brockett v. Spokane
Arcades, Inc., 472 U. S. 491, 503 (1985); Ferber,
supra, at 772, but the Court's new  underbreadth
creation serves no desirable function.  Instead,
it permits, indeed invites, the continuation of
expressive conduct that in this case is evil and
worthless in First Amendment terms, see Ferber,
supra, at 763-764; Chaplinsky, supra, at 571-572,
until the city of St. Paul cures the underbreadth
by adding to its ordinance a catch-all phrase such
as  and all other fighting words that may consti-
tutionally be subject to this ordinance.
  Any contribution of this holding to First Amend-
ment jurisprudence is surely a negative one,
since it necessarily signals that expressions of
violence, such as the message of intimidation and
racial hatred conveyed by burning a cross on
someone's lawn, are of sufficient value to out-
weigh the social interest in order and morality
that has traditionally placed such fighting words
outside the First Amendment.  Indeed, by char-
acterizing fighting words as a form of `'debate,''
ante, at 13, the majority legitimates hate speech
as a form of public discussion.
  Furthermore, the Court obscures the line
between speech that could be regulated freely on
the basis of content (i.e., the narrow categories
of expression falling outside the First Amendment)
and that which could be regulated on the basis of
content only upon a showing of a compelling state
interest (i.e., all remaining expression).  By
placing fighting words, which the Court has long
held to be valueless, on at least equal constitu-
tional footing with political discourse and other
forms of speech that we have deemed to have the
greatest social value, the majority devalues the
latter category.  See Burson v. Freeman, supra, at
--- (slip op., at 4-5); Eu v. San Francisco County
Democratic Central Comm., 489 U. S. 214, 222-223
(1989).
                       B
  In a second break with precedent, the Court
refuses to sustain the ordinance even though it
would survive under the strict scrutiny applica-
ble to other protected expression.  Assuming,
arguendo, that the St. Paul ordinance is a con-
tent-based regulation of protected expression, it
nevertheless would pass First Amendment review
under settled law upon a showing that the regula-
tion  `is necessary to serve a compelling state
interest and is narrowly drawn to achieve that end.'
Simon & Schuster, Inc. v. New York Crime Victims
Board, 502 U. S. ---, --- (1991) (slip op., at 11)
(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 17.  The Court
expressly concedes that this interest is compel-
ling 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 neces-
sary in order to achieve St. Paul's compelling
interests; it plainly is not.  An ordinance not
limited to the favored topics would have
precisely the same beneficial effect.  Ibid.
Under the majority's view, a narrowly drawn,
content-based ordinance could never pass consti-
tutional muster if the object of that legislation
could be accomplished by banning a wider category
of speech.  This appears to be a general renuncia-
tion of strict scrutiny review, a fundamental tool
of First Amendment analysis.
    This abandonment of the doctrine is inexplicable
in light of our decision in Burson v. Freeman, supra,
which was handed down just a month ago.  In
Burson, seven of the eight participating members
of the Court agreed that the strict scrutiny
standard applied in a case involving a First
Amendment challenge to a content-based statute.
See id., at ___ (slip op., at 6) (plurality); id., at
--- (slip op., at 1) (Stevens, J., dissenting).
The statute at issue prohibited the solicitation
of votes and the display or distribution of cam-
paign materials within 100 feet of the entrance to
a polling place.  The plurality concluded that the
legislation survived strict scrutiny because the
State had asserted a compelling interest in
regulating electioneering near polling places and
because the statute at issue was narrowly tai-
lored to accomplish that goal.  Id., at --- (slip
op., at 17-18).
  Significantly, the statute in Burson did not
proscribe all speech near polling places; it re-
stricted only political speech.  Id., at --- (slip
op., at 5).  The Burson plurality, which included The
Chief Justice and Justice Kennedy, concluded
that the distinction between types of speech
required application of strict scrutiny, but it
squarely rejected the proposition that the
legislation failed First Amendment review because
it could have been drafted in broader, content-
neutral terms:
 States adopt laws to address the problems
that confront them.  The First Amendment does
not require States to regulate for problems that
do not exist.  Id., at --- (slip op., at 16)
(emphasis added).
This reasoning is in direct conflict with the
majority's analysis in the present case, which
leaves two options to lawmakers attempting to
regulate expressions of violence:  (1) enact a
sweeping prohibition on an entire class of speech
(thereby requiring  regulat[ion] for problems that
do not exist); or (2) not legislate at all.
  Had the analysis adopted by the majority in the
present case been applied in Burson, the chal-
lenged election law would have failed constitu-
tional review, for its content-based distinction
between political and nonpolitical speech could
not have been characterized as  reasonably
necessary, ante, at 17, to achieve the State's
interest in regulating polling place premises.
   As with its rejection of the Court's categorical
analysis, the majority offers no reasoned basis
for discarding our firmly established strict
scrutiny analysis at this time.  The majority
appears to believe that its doctrinal revisionism
is necessary to prevent our elected lawmakers
from prohibiting libel against members of one
political party but not another and from enacting
similarly preposterous laws.  Ante, at 5-6.  The
majority is misguided.
  Although the First Amendment does not apply to
categories of unprotected speech, such as fight-
ing words, the Equal Protection Clause requires
that the regulation of unprotected speech be
rationally related to a legitimate government
interest.  A defamation statute that drew dis-
tinctions on the basis of political affiliation or
 an ordinance prohibiting only those legally
obscene works that contain criticism of the city
government, ante, at 6, would unquestionably fail
rational basis review.
    Turning to the St. Paul ordinance and assuming
arguendo, as the majority does, that the ordinance
is not constitutionally overbroad (but see Part
II, infra), there is no question that it would pass
equal protection review.  The ordinance pro-
scribes a subset of  fighting words, those that
injure  on the basis of race, color, creed, reli-
gion or gender.  This selective regulation re-
flects the City's judgment that harms based on
race, color, creed, religion, or gender are more
pressing public concerns than the harms caused by
other fighting words.  In light of our Nation's long
and painful experience with discrimination, this
determination is plainly reasonable.  Indeed, as
the majority concedes, the interest is compelling.
Ante, at 17.
                       C
  The Court has patched up its argument with an
apparently nonexhaustive list of ad hoc excep-
tions, in what can be viewed either as an attempt
to confine the effects of its decision to the
facts of this case, see post, at --- (slip op., at
1-2) (Blackmun, J., concurring in judgment), or as
an effort to anticipate some of the questions
that will arise from its radical revision of First
Amendment law.
  For instance, if the majority were to give
general application to the rule on which it decides
this case, today's decision would call into ques-
tion 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.  See ante, at 13.  But because the Gov-
ernment 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 stat-
ute 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 9.  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.''
Ante, at 10.
  The exception swallows the majority's rule.
Certainly, it should apply to the St. Paul ordi-
nance, since ``the reasons why [fighting words] are
outside the First Amendment . . .  have special
force when applied to [groups that have histori-
cally 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 8, 15.  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, supra, at 572,
a message that is at its ugliest when directed
against groups 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 `sec-
ondary effects' of the speech . . .,'' ante, at 10,
which the majority treats as encompassing in-
stances in which ``words can . . . violate laws
directed not against
speech but against conduct . . .''  Ante, at 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 uncon-
stitutional.
  Title VII 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 which creates  an
intimidating, hostile, or offensive working envi-
ronment.  29 CFR 1604.11(a) (1991).  The regulation
does not prohibit workplace harassment generally;
it focuses on what the majority would character-
ize as the  disfavored topi[c] of sexual harass-
ment.  Ante, at 13.  In this way, Title VII is similar
to the St. Paul ordinance that the majority con-
demns because it  impose[s] special prohibitions
on those speakers who express views on disfavor-
ed subjects.  Ibid.  Under the broad principle the
Court uses to decide the present case, hostile
work environment claims based on sexual harass-
ment 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 underincl-
usiveness challenge because ``sexually derogatory
`fighting words'. . . may produce a violation of
Title VII's general prohibition against sexual
discrimination in employment practices.''  Ante, at
11.  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 v.
Vinson, 477 U. S. 57, 65 (1986), but to the impact of
the speech on the victimized worker.  Consequent-
ly, the regulation would no more fall within a
secondary effects exception than does the St.
Paul ordinance.  Ante, at 15-16.  Second, the
majority's focus on the statute's general prohibi-
tion 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 relation-
ship between the broader statute and specific
regulation is sufficent to bring the Title VII
regulation within O'Brien, then all St. Paul need do
to bring its ordinance within this exception is to
add some prefatory language concerning discrimi-
nation generally.
  As 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
12.  As I have demonstrated, this case does not
concern the official suppression of ideas.  See
supra, at 6.  The majority discards this notion
out-of-hand.  Ante, at 16.
  As I see it, the Court's theory does not work and
will do nothing more than confuse the law.  Its
selection of this case to rewrite First Amendment
law is particularly inexplicable, because the whole
problem could have been avoided by deciding this
case under settled First Amendment principles.

                      II
  Although I disagree with the Court's analysis, I
do agree with its conclusion: The St. Paul ordi-
nance is unconstitutional.  However, I would
decide the case on overbreadth grounds.
  We have emphasized time and again that over-
breadth doctrine is an exception to the estab-
lished principle that  a person to whom a statute
may constitutionally be applied will not be heard
to challenge that statute on the ground that it
may conceivably be applied unconstitutionally to
others, in other situations not before the Court.
Broadrick v. Oklahoma, 413 U. S., at 610; Brockett v.
Spokane Arcades, Inc., 472 U. S., at 503-504.  A
defendant being prosecuted for speech or expres-
sive conduct may challenge the law on its face if
it reaches protected expression, even when that
person's activities are not protected by the
First Amendment.  This is because  the possible
harm to society in permitting some unprotected
speech to go unpunished is outweighed by the
possibility that protected speech of others may
be muted.  Broadrick, supra, at 612; Osborne v.
Ohio, 495 U. S., at 112, n. 8; New York v. Ferber,
supra, at 768-769; Schaumburg v. Citizens for a
Better Environment, 444 U. S. 620, 634 (1980);
Gooding v. Wilson, 405 U. S. 518, 521 (1972).
  However, we have consistently held that, be-
cause overbreadth analysis is  strong medicine,
it may be invoked to strike an entire statute only
when the overbreadth of the statute is not only
 real, but substantial as well, judged in relation
to the statute's plainly legitimate sweep, Broad-
rick, 413 U. S., at 615, and when the statute is not
susceptible to limitation or partial invalidation.
Id., at 613; Board of Airport Comm'rs of Los Angeles
v. Jews for Jesus, Inc., 482 U. S. 569, 574 (1987).
 When a federal court is dealing with a federal
statute challenged as overbroad, it should . . .
construe the statute to avoid constitutional
problems, if the statute is subject to a limiting
construction.  Ferber, 458 U. S., at 769, n. 24.  Of
course,  [a] state court is also free to deal with
a state statute in the same way.  Ibid.  See, e.g.,
Osborne, 495 U. S. at 113-114.
  Petitioner contends that the St. Paul ordinance
is not susceptible to a narrowing construction
and that the ordinance therefore should be
considered as written, and not as construed by
the Minnesota Supreme Court.  Petitioner is wrong.
Where a state court has interpreted a provision
of state law, we cannot ignore that interpreta-
tion, even if it is not one that we would have
reached if we were construing the statute in the
first instance.  Ibid.; Kolender v. Lawson, 461 U. S.
352, 355 (1983); Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U. S. 489, 494, n. 5
(1982).
     Of course, the mere presence of a state court
interpretation does not insulate a statute from
overbreadth review.  We have stricken legislation
when the construction supplied by the state court
failed to cure the overbreadth problem.  See, e.g.,
Lewis v. City of New Orleans, 415 U. S. 130, 132-133
(1974); Gooding, supra, at 524-525.  But in such
cases, we have looked to the statute as con-
strued in determining whether it contravened the
First Amendment.  Here, the Minnesota Supreme
Court has provided an authoritative construction
of the St. Paul antibias ordinance.  Consideration
of petitioner's overbreadth claim must be based
on that interpretation.
  I agree with petitioner that the ordinance is
invalid on its face.  Although the ordinance as
construed reaches categories of speech that are
constitutionally unprotected, it also criminalizes
a substantial amount of expression that"however
repugnant"is shielded by the First Amendment.
  In attempting to narrow the scope of the St.
Paul antibias ordinance, the Minnesota Supreme
Court relied upon two of the categories of speech
and expressive conduct that fall outside the
First Amendment's protective sphere:  words that
incite  imminent lawless action, Brandenburg v.
Ohio, 395 U. S. 444, 449 (1969), and  fighting
words, Chaplinsky v. New Hampshire, 315 U. S., at
571-572.  The Minnesota Supreme Court erred in
its application of the Chaplinsky fighting words
test and consequently interpreted the St. Paul
ordinance in a fashion that rendered the ordi-
nance facially overbroad.
  In construing the St. Paul ordinance, the Minne-
sota Supreme Court drew upon the definition of
fighting words that appears in Chaplinsky"words
 which by their very utterance inflict injury or
tend to incite an immediate breach of the peace.
Id., at 572.  However, the Minnesota court was far
from clear in identifying the  injur[ies] inflicted
by the expression that St. Paul sought to regu-
late.  Indeed, the Minnesota court emphasized
(tracking the language of the ordinance) that  the
ordinance censors only those displays that one
knows or should know will create anger, alarm or
resentment based on racial, ethnic, gender or
religious bias.  In re Welfare of R. A. V., 464 N.W.
2d 507, 510 (1991).  I therefore understand the
court to have ruled that St. Paul may constitu-
tionally prohibit expression that  by its very
utterance causes  anger, alarm or resentment.
  Our fighting words cases have made clear,
however, that such generalized reactions are not
sufficient to strip expression of its constitu-
tional protection.  The mere fact that expressive
activity causes hurt feelings, offense, or re-
sentment does not render the expression unpro-
tected.  See United States v. Eichman, 496 U. S. 310,
319 (1990); Texas v. Johnson, 491 U. S. 397, 409, 414
(1989); Hustler Magazine, Inc. v. Falwell, 485 U. S.
46, 55-56 (1988); FCC v. Pacifica Foundation, 438
U. S. 726, 745 (1978); Hess v. Indiana, 414 U. S. 105,
107-108 (1973); Cohen v. California, 403 U. S. 15, 20
(1971); Street v. New York, 394 U. S. 576, 592 (1969);
Terminiello v. Chicago, 337 U. S. 1 (1949).
  In the First Amendment context,  [c]riminal
statutes must be scrutinized with particular
care; those that make unlawful a substantial
amount of constitutionally protected conduct may
be held facially invalid even if they also have
legitimate application.  Houston v. Hill, 482 U. S.
451, 459 (1987) (citation omitted).  The St. Paul
antibias ordinance is such a law.  Although the
ordinance reaches conduct that is unprotected, it
also makes criminal expressive conduct that
causes only hurt feelings, offense, or resent-
ment, and is protected by the First Amendment.  Cf.
Lewis, supra, at 132.  The ordinance is there-
fore fatally overbroad and invalid on its face.
                      III
  Today, the Court has disregarded two estab-
lished principles of First Amendment law without
providing a coherent replacement theory.  Its
decision is an arid, doctrinaire interpretation,
driven by the frequently irresistible impulse of
judges to tinker with the First Amendment.  The
decision is mischievous at best and will surely
confuse the lower courts.  I join the judgment, but
not the folly of the opinion.




Concur 2
 SUPREME COURT OF THE UNITED STATES--------
             No. 90-7675
              --------
   R. A. V., PETITIONER v. CITY OF
              ST. PAUL, MINNESOTA
 on writ of certiorari to the supreme court of
                   minnesota
                [June 22, 1992]

  Justice Blackmun, concurring in the judgment.
  I regret what the Court has done in this case.
The majority opinion signals one of two possibili-
ties: it will serve as precedent for future cases,
or it will not.  Either result is disheartening.
  In the first instance, by deciding that a State
cannot regulate speech that causes great harm
unless it also regulates speech that does not
(setting law and logic on their heads), the Court
seems to abandon the categorical approach, and
inevitably to relax the level of scrutiny applica-
ble to content-based laws.  As Justice White
points out, this weakens the traditional protecti-
ons of speech.  If all expressive activity must be
accorded the same protection, that protection
will be scant.  The simple reality is that the Court
will never provide child pornography or cigarette
advertising the level of protection customarily
granted political speech.  If we are forbidden from
categorizing, as the Court has done here, we shall
reduce protection across the board.  It is sad
that in its effort to reach a satisfying result in
this case, the Court is willing to weaken First
Amendment protections.
     In the second instance is the possibility that
this case will not significantly alter First Amend-
ment jurisprudence, but, instead, will be regarded
as an aberration"a case where the Court manipu-
lated doctrine to strike down an ordinance whose
premise it opposed, namely, that racial threats
and verbal assaults are of greater harm than
other fighting words.  I fear that the Court has
been distracted from its proper mission by the
temptation to decide the issue over  politically
correct speech and  cultural diversity, neither
of which is presented here.  If this is the meaning
of today's opinion, it is perhaps even more re-
grettable.
  I see no First Amendment values that are com-
promised by a law that prohibits hoodlums from
driving minorities out of their homes by burning
crosses on their lawns, but I see great harm in
preventing the people of Saint Paul from specifi-
cally punishing the race-based fighting words
that so prejudice their community.
  I concur in the judgment, however, because I
agree with Justice White that this particular
ordinance reaches beyond fighting words to
speech protected by the First Amendment.



Concur 3
      SUPREME COURT OF THE UNITED STATES--------
             No. 90-7675
              --------
   R. A. V., PETITIONER v. CITY OF
              ST. PAUL, MINNESOTA
 on writ of certiorari to the supreme court of
                   minnesota
                                       [June 22, 1992]

  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 some-
one 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 ordi-
nance raises two quite different First Amendment
questions.  Is the ordinance  overbroad because
it prohibits too much speech?  If not, is it
 underbroad because it does not prohibit enough
speech?
  In answering these questions, my colleagues
today wrestle with two broad principles:  first,
that certain  categories of expression [including
`fighting words'] are `not within the area of con-
stitutionally protected speech,' ante, at 5
(White, J., concurring in judgment); and second,
that  [c]ontent-based regulations [of expression]
are presumptively invalid.  Ante, at 4 (Opinion of
the Court).  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
concurring opinions.
                       I
  Fifty years ago, the Court articulated a cate-
gorical approach to First Amendment jurispru-
dence.
 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.  Chapl-
insky v. New Hampshire, 315 U. S. 568, 571-572
(1942).
We have, as Justice White observes, often de-
scribed such categories of expression as  not
within the area of constitutionally protected
speech.  Roth v. United States, 354 U. S. 476, 483
(1957).
  The Court today revises this categorical
approach.  It is not, the Court rules, that certain
 categories of expression are  unprotected,
but rather that certain  elements of expression
are wholly  proscribable.  To the Court, an
expressive act, like a chemical compound, consists
of more than one element.  Although the act may be
regulated because it contains a proscribable
element, it may not be regulated on the basis of
another (nonproscribable) element it also con-
tains.  Thus, obscene antigovernment speech may
be regulated because it is obscene, but not
because it is antigovernment.  Ante, at 6.  It is
this revision of the categorical approach that
allows the Court to assume that the St. Paul
ordinance proscribes only fighting words, while at
the same time concluding that the ordinance is
invalid because it imposes a content-based
regulation on expressive activity.
  As an initial matter, the Court's revision of the
categorical approach seems to me something of an
adventure in a doctrinal wonderland, for the
concept of  obscene antigovernment speech is
fantastical.  The category of the obscene is very
narrow; to be obscene, expression must be found
by the trier of fact to  appea[l] to the prurient
interest, . . . depic[t] or describ[e], in a patently
offensive way, sexual conduct, [and] taken as a
whole, lac[k] serious literary, artistic, political
or scientific value.  Miller v. California, 413 U. S.
15, 24 (1973) (emphasis added).   Obscene antigove-
rnment speech, then, is a contradiction in terms:
If expression is antigovernment, it does not
 lac[k] serious . . . political . . . value and cannot
be obscene.
  The Court attempts to bolster its argument by
likening its novel analysis to that applied to
restrictions on the time, place, or manner of
expression or on expressive conduct.  It is true
that loud speech in favor of the Republican Party
can be regulated because it is loud, but not
because it is pro-Republican; and it is true that
the public burning of the American flag can be
regulated because it involves public burning and
not because it involves the flag.  But these
analogies are inapposite.  In each of these exam-
ples, the two elements (e.g., loudness and pro-
Republican orientation) can coexist; in the case of
 obscene antigovernment speech, however, the
presence of one element ( obscenity) by defini-
tion means the absence of the other.  To my mind,
it is unwise and unsound to craft a new doctrine
based on such highly speculative hypotheticals.
  I am, however, even more troubled by the second
step of the Court's analysis"namely, its conclu-
sion that the St. Paul ordinance is an unconstitu-
tional content-based regulation of speech.
Drawing on broadly worded dicta, the Court estab-
lishes a near-absolute ban on content-based
regulations of expression and holds that the
First Amendment prohibits the regulation of
fighting words by subject matter.  Thus, while the
Court rejects the  all-or-nothing-at-all nature
of the categorical approach, ante, at 6, it prompt-
ly embraces an absolutism of its own:  within a
particular  proscribable category of expression,
the Court holds, a government must either pro-
scribe all speech or no speech at all.  This
aspect of the Court's ruling fundamentally misun-
derstands the role and constitutional status of
content-based regulations on speech, conflicts
with the very nature of First Amendment jurispru-
dence, and disrupts well-settled principles of
First Amendment law.
  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 unconstitution-
al, but rather could be upheld if the City demon-
strated that nonlabor picketing was  clearly more
disruptive than [labor] picketing.  Id., at 100.
Contrary to the broad dicta in Mosley and else-
where, our decisions demonstrate that content-
based distinctions, far from being presumptively
invalid, are an inevitable and indispensable
aspect of a coherent understanding of the First
Amendment.
  This is true at every level of First Amendment
law.  In broadest terms, our entire First Amend-
ment jurisprudence creates a regime based on the
content of speech.  The scope of the First Amend-
ment is determined by the content of expressive
activity:  Although the First Amendment broadly
protects  speech, it does not protect the right
to  fix prices, breach contracts, make false
warranties, place bets with bookies, threaten,
[or] extort.  Schauer, Categories and the First
Amendment:  A Play in Three Acts, 34 Vand. L. Rev.
265, 270 (1981).  Whether an agreement among
competitors is a violation of the Sherman Act or
protected activity under the Noerr-Pennington
doctrine hinges upon the content of the
agreement.  Similarly,  the line between permissi-
ble advocacy and impermissible incitation to crime
or violence depends, not merely on the setting in
which the speech occurs, but also on exactly what
the speaker had to say.  Young v. American Mini
Theatres, Inc., 427 U. S. 50, 66 (1976) (plurality
opinion); see also Musser v. Utah, 333 U. S. 95,
100-103 (1948) (Rutledge, J., dissenting).
  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 fight-
ing word, or a photograph child pornography is
determined, in part, by its content.  Even within
categories of protected expression, the First
Amendment status of speech is fixed by its con-
tent.  New York Times Co. v. Sullivan, 376 U. S. 254
(1964), and Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U. S. 749 (1985), establish that
the level of protection given to speech depends
upon its subject matter: speech about public
officials or matters of public concern receives
greater protection than speech about other
topics.  It can, therefore, scarcely be said that
the regulation of expressive activity cannot be
predicated on its content: much of our First
Amendment jurisprudence is premised on the
assumption that content makes a difference.
  Consistent with this general premise, we have
frequently upheld content-based regulations of
speech.  For example, in Young v. American Mini
Theatres, the Court upheld zoning ordinances that
regulated movie theaters based on the content of
the films shown.  In FCC v. Pacifica Foundation, 438
U. S. 726 (1978) (plurality opinion), we upheld a
restriction on the broadcast of specific indecent
words.  In Lehman v. City of 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 regu-
late 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).  It is
also beyond question that the Government may
choose to limit advertisements for cigarettes,
see 15 U. S. C. 1331-1340, but not for cigars;
choose to regulate airline advertising, see
Morales v. Trans World Airlines, 504 U. S. ___
(1992), but not bus advertising; or choose to
monitor solicitation by lawyers, see Ohralik v.
Ohio State Bar Assn., 436 U. S. 447 (1978), but not
by doctors.
  All of these cases involved the selective
regulation of speech based on content"precisely
the sort of regulation the Court invalidates
today.  Such selective regulations are unavoid-
ably content based, but they are not, in my opin-
ion,  presumptively invalid.  As these many
decisions and examples demonstrate, the prohibi-
tion on content-based regulations is not nearly
as total as the Mosley dictum suggests.
  Disregarding this vast body of case law, the
Court today goes beyond even the overstatement
in Mosley and applies the prohibition on content-
based regulation to speech that the Court had
until today considered wholly  unprotected by
the First Amendment"namely, fighting words.  This
new absolutism in the prohibition of content-
based regulations severely contorts the fabric of
settled First Amendment law.
  Our First Amendment decisions have created a
rough hierarchy in the constitutional protection
of speech.  Core political speech occupies the
highest, most protected position; commercial
speech and nonobscene, sexually explicit speech
are regarded as a sort of second-class expres-
sion; obscenity and fighting words receive the
least protection of all.  Assuming that the Court
is correct that this last class of speech is not
wholly  unprotected, it certainly does not follow
that fighting words and obscenity receive the
same sort of protection afforded core political
speech.  Yet in ruling that proscribable speech
cannot be regulated based on subject matter, the
Court does just that.  Perversely, this gives
fighting words greater protection than is afforded
commercial speech.  If Congress can prohibit false
advertising directed at airline passengers with-
out also prohibiting false advertising directed at
bus passengers and if a city can prohibit political
advertisements in its buses while allowing other
advertisements, it is ironic to hold that a city
cannot regulate fighting words based on  race,
color, creed, religion or gender while leaving
unregulated fighting words based on  union mem-
bership or homosexuality.  Ante, at 13.  The Court
today turns First Amendment law on its head:
Communication that was once entirely unprotected
(and that still can be wholly proscribed) is now
entitled to greater protection than commercial
speech"and possibly greater protection than core
political speech.  See Burson v. Freeman, 504 U. S.
___, ___ (1992).
  Perhaps because the Court recognizes these
perversities, it quickly offers some ad hoc limi-
tations 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 physical threats 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 vio-
lence, from the disruption that fear engen-
ders, and from the possibility that the threa-
tened violence will occur) have special force
when applied to the. . .President.  Ante, at 10.
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 con-
stitutional.  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 [commer-
cial speech] of full First Amendment protection
. . .) in the regulated industry is  greater than
in other industries.  Ante, at 10.  Again, the same
reasoning demonstrates the constitutionality of
St. Paul's ordinance.   [O]ne of the characteris-
tics 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 trade than in the medical trade may deter-
mine that the risk of injury or breach of peace
created by race-based threats is greater than
that created by other threats.
  Similarly, it is impossible to reconcile the
Court's analysis of the St. Paul ordinance with its
recognition that ``a prohibition of fighting words
that are directed at certain persons or groups
. . . would be facially valid.''  Ante, at 13 (emphasis
deleted).  A selective proscription of unprotected
expression designed to protect ``certain persons
or groups'' (for example, a law proscribing threats
directed at the elderly) would be constitutional if
it were based on a legitimate determination that
the harm created by the regulated expression
differs from that created by the unregulated
expression (that is, if the elderly are more
severely injured by threats than are the nonelde-
rly).  Such selective protection is no different
from a law prohibiting minors (and only minors)
from obtaining obscene publications.  See Ginsberg
v. New York, 390 U. S. 629 (1968).  St. Paul has
determined"reasonably in my judgment"that
fighting-word injuries ``based on race, color,
creed, religion or gender'' are qualitatively
different and more severe than fighting-word
injuries based on other characteristics.  Whether
the selective proscription of proscribable speech
is defined by the protected target ( certain
persons or groups) or the basis of the harm
(injuries  based on race, color, creed, religion or
gender) makes no constitutional difference: what
matters is whether the legislature's selection is
based on a legitimate, neutral, and reasonable
distinction.
    In sum, the central premise of the Court's
ruling"that  [c]ontent-based regulations are
presumptively invalid"has simplistic appeal, but
lacks support in our First Amendment jurispru-
dence.  To make matters worse, the Court today
extends this overstated claim to reach catego-
ries of hitherto unprotected speech and, in doing
so, wreaks havoc in an area of settled law.
Finally, although the Court recognizes exceptions
to its new principle, those exceptions undermine
its very conclusion that the St. Paul ordinance is
unconstitutional.  Stated directly, the majority's
position cannot withstand scrutiny.                      II
  Although I agree with much of Justice White's
analysis, I do not join Part I-A of his opinion
because I have reservations about the  categori-
cal 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) (Stevens, J., 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 expres-
sion is protected or it is not"the categories
create safe harbors for governments and speak-
ers 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 Amend-
ment law are straight and unwavering, and efforts
at categorization inevitably give rise only to
fuzzy boundaries.  Our definitions of ``obscenity,''
see, e.g., Marks v. United States, 430 U. S. 188, 198
(1977) (Stevens, J., concurring in part and dis-
senting in part), and ``public forum,'' see, e.g.,
United States Postal Service v. Council of Greenbu-
rgh Civic Assns., 453 U. S. 114, 126-131 (1981); id., at
136-140 (Brennan, J., concurring in judgment); id.,
at 147-151 (Marshall, J., dissenting); 152-154
(Stevens, J., dissenting) (all debating the defini-
tion of  public forum), illustrate this all too
well.  The quest for doctrinal certainty through
the definition of categories and subcategories is,
in my opinion, destined to fail.
  Moreover, the categorical approach does not
take seriously the importance of context.  The
meaning of any expression and the legitimacy of
its regulation can only be determined in con-
text.  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 documen-
tary 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 consid-
eration of both its content and its context.''
Ferber, 458 U. S. at 778 (Stevens, J., concurring in
judgment); see also Smith v. United States, 431 U. S.
291, 311-321 (1977) (Stevens, J., dissenting).  The
categorical approach sweeps too broadly when it
declares that all such expression is beyond the
protection of the First Amendment.
  Perhaps sensing the limits of such an all-or-
nothing approach, the Court has applied its
analysis less categorically than its doctrinal
statements suggest.  The Court has recognized
intermediate categories of speech (for example,
for indecent nonobscene speech and commercial
speech) and geographic categories of speech
(public fora, limited public fora, nonpublic fora)
entitled to varying levels of protection.  The
Court has also stringently delimited the catego-
ries of unprotected speech.  While we once de-
clared that  [l]ibelous utterances [are] not . . .
within the area of constitutionally protected
speech, Beauharnais v. Illinois, 343 U. S. 250, 266
(1952), our rulings in New York Times Co. v. Sullivan,
376 U. S. 253 (1964); Gertz v. Robert Welch, Inc., 418
U. S. 323 (1974), and Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U. S. 749 (1985), have
substantially qualified this broad claim.  Similar-
ly, we have consistently construed the  fighting
words exception set forth in Chaplinsky narrowly.
See, e.g., Houston v. Hill, 482 U. S. 451 (1987); Lewis
v. City of New Orleans, 415 U. S. 130 (1974); Cohen v.
California, 403 U. S. 15 (1971).  In the case of
commercial speech, our ruling that  the Constitu-
tion imposes no . . . restraint on government
[regulation] as respects purely commercial adver-
tising, Valentine v. Chrestensen, 316 U. S. 52, 54
(1942), was expressly repudiated in Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U. S. 748 (1976).  In short, the history of
the categorical approach is largely the history of
narrowing the categories of unprotected speech.
  This evolution, I believe, indicates that the
categorical approach is unworkable and the quest
for absolute categories of  protected and
 unprotected speech ultimately futile.  My
analysis of the faults and limits of this approach
persuades me that the categorical approach
presented in Part I-A of Justice White's opinion
is not an adequate response to the novel  under-
breadth analysis the Court sets forth today.
                      III
  As the foregoing suggests, I disagree with both
the Court's and part of Justice White's analysis
of the constitutionality St. Paul ordinance.
Unlike the Court, I do not believe that all con-
tent-based regulations are equally infirm and
presumptively invalid; unlike Justice White, I do
not believe that fighting words are wholly unpro-
tected 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 pro-
scribable speech is constitutional.
  Not all content-based regulations are alike; our
decisions clearly recognize that some content-
based restrictions raise more constitutional
questions than others.  Although the Court's
analysis of content-based regulations cannot be
reduced to a simple formula, we have considered a
number of factors in determining the validity of
such regulations.
  First, as suggested above, the scope of protec-
tion 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 California, 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 expres-
sive conduct than it has in restricting the writ-
ten 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 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. City of Shaker Heights,
418 U. S., at 302 (citation omitted).  Perhaps
the most familiar embodiment of the relevance of
context is our  fora jurisprudence, differenti-
ating the levels of protection afforded speech in
different locations.
  The nature of a contested restriction of speech
also informs our evaluation of its constitution-
ality.  Thus, for example,  [a]ny system of prior
restraints of expression comes to this Court
bearing a heavy presumption against its constitu-
tional validity.  Bantam Books, Inc. v. Sullivan,
372 U. S. 58, 70 (1963).  More particularly to the
matter of content-based regulations, we have
implicitly distinguished between restrictions on
expression based on subject matter and restric-
tions based on viewpoint, indicating that the
latter are particularly pernicious.   If there is
a bedrock principle underlying the First Amend-
ment, 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 Education Assn. v. Perry Local Educators'
Assn., 460 U. S. 37, 62 (1983) (Brennan, J., dissent-
ing), and requires particular scrutiny, in part
because such regulation often indicates a legis-
lative 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 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
National Bank of Boston v. Bellotti, 435 U. S. 765,
785-786 (1978).  Thus, although a regulation that
on its face regulates speech by subject matter
may in some instances effectively suppress
particular viewpoints, see, e.g., Consolidated
Edison Co. of N.Y. v. Public Service Comm'n of N.Y.,
447 U. S. 530, 546-547 (1980) (Stevens, J., concur-
ring in judgment), in general, viewpoint-based
restrictions on expression require greater
scrutiny than subject-matter based restric-
tions.
  Finally, in considering the validity of content-
based regulations we have also looked more
broadly at the scope of the restrictions.  For
example, in Young v. American Mini Theatres, 427
U. S., at 71, we found significant the fact that
 what [was] ultimately at stake [was] nothing more
than a limitation on the place where adult films
may be exhibited.  Similarly, in FCC v. Pacifica
Foundation, the Court emphasized two dimensions
of the limited scope of the FCC ruling.  First, the
ruling concerned only broadcast material which
presents particular problems because it  con-
fronts the citizen . . . in the privacy of the home;
second, the ruling was not a complete ban on the
use of selected offensive words, but rather
merely a limitation on the times such speech could
be broadcast.  438 U. S., at 748-750.
  All of these factors play some role in our
evaluation of content-based regulations on
expression.  Such a 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  unprotect-
ed or to proclaim a regulation  content-based
or  content-neutral.
  In applying this analysis to the St. Paul ordi-
nance, 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 de-
rived 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 activi-
ty, it is again significant that the statute (by
hypothesis) regulates only fighting words.  Wheth-
er 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 con-
frontational 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 intimi-
dation.  That this cross-burning sends a message
of racial hostility does not automatically endow
it with complete constitutional protection.
    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 ordi-
nance.  The Court describes the St. Paul ordinance
as regulating expression ``addressed to one of
[several] specified disfavored topics,'' ante, at 13
(emphasis supplied), as policing ``disfavored
subjects,'' ibid. (emphasis supplied), and as ``pro-
hibit[ing] . . . speech solely on the basis of the
subjects the speech addresses.''  Ante, at 3 (em-
phasis supplied).  Contrary to the Court's sugges-
tion, the ordinance regulates only a subcategory
of expression that causes injuries based on ``race,
color, creed, religion or gender,'' not a subcate-
gory that involves discussions that concern those
characteristics.  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 pornog-
raphy because those publications caused far
greater harms than pornography involving adults.

  Moreover, even if the St. Paul ordinance did
regulate fighting words based on its subject
matter, such a regulation would, in my opinion, be
constitutional.  As noted above, subject-matter
based regulations on commercial speech are
widespread and largely unproblematic.  As we have
long recognized, subject-matter regulations
generally do not raise the same concerns of
government censorship and the distortion of
public discourse presented by viewpoint regula-
tions.  Thus, in upholding subject-matter regula-
tions we have carefully noted that viewpoint-
based discrimination was not implicated.  See
Young v. American Mini Theatres, 427 U. S., at 67
(emphasizing  the need for absolute neutrality by
the government, and observing that the contest-
ed statute was not animated by  hostility for the
point of view of the theatres); FCC v. Pacifica
Foundation, 438 U. S., at 745-746 (stressing that
 government must remain neutral in the market-
place of ideas); see also FCC v. League of Women's
Voters of California, 468 U. S., at 412-417 (Steven-
s, J., dissenting); Metromedia, Inc. v. City of San
Diego, 453 U. S. 490, 554-555 (1981) (Stevens, J.,
dissenting in part).  Indeed, some subject-matter
restrictions are a functional necessity in con-
temporary governance:   The First Amendment does
not require States to regulate for problems that
do not exist.  Burson v. Freeman, 504 U. S. ___, ___
(1992) (slip op., at 16).
  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 intoler-
ance to  follow the Marquis of Queensbury Rules
while allowing advocates of racial tolerance to
 fight freestyle.  The law does no such thing.
  The Court writes:
 One could hold up a sign saying, for example,
that all `anti-Catholic bigots' are misbegot-
ten; but not that all `papists' are, for that
would insult and provoke violence `on the basis
of religion.'  Ante, at 13.
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 misbegot-
ten.  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.  Con-
versely (and again assuming such signs are fight-
ing 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 advo-
cates 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 pugi-
listic metaphor, the St. Paul ordinance simply bans
punches  below the belt"by either party.  It does
not, therefore, favor one side of any debate.

  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 catego-
ry of fighting words.  Such a limited ordinance
leaves open and protected a vast range of ex-
pression on the subjects of racial, religious, and
gender equality.  As construed by the Court
today, the ordinance certainly does not  `raise
the specter that the Government may effectively
drive certain ideas or viewpoints from the marketplace.'
Ante, at 9.  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 proper-
ty or public land, at day or at night, so long as
the burning is not so threatening and so directed
at an individual as to  by its very [execution]
inflict injury.  Such a limited proscription
scarcely offends the First Amendment.
  In sum, the St. Paul ordinance (as construed by
the Court) regulates expressive activity that is
wholly proscribable and does so not on the basis
of viewpoint, but rather in recognition of the
different harms caused by such activity.  Taken
together, these several considerations persuade
me that the St. Paul ordinance is not an unconsti-
tutional content-based regulation of speech.
Thus, were the ordinance not overbroad, I would
vote to uphold it.
