212
Kennedy, J., concurring
one of a limited set of well-defined categories. See ibid. Today's case warrants some elaboration on the meaning of the term "content based" as used in our jurisprudence.
In Simon & Schuster, my concurrence pointed out the seeming paradox that notwithstanding "our repeated statement that 'above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,' " id., at 126 (quoting Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972)), we had fallen into the practice of suggesting that content-based limits on speech can be upheld if confined in a narrow way to serve a compelling state interest. I continue to believe that our adoption of the compelling-interest test was accomplished by accident, 502 U. S., at 125, and as a general matter produces a misunderstanding that has the potential to encourage attempts to suppress legitimate expression.
The test may have a legitimate role, however, in sorting out what is and what is not a content-based restriction. See id., at 128 ("[W]e cannot avoid the necessity of deciding . . . whether the regulation is in fact content based or content neutral"). As the Court has recognized in the context of regulations of the time, place, or manner of speech, "[g]overnment regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech.' " Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984)) (emphasis added in Ward). In some cases, the fact that a regulation is content based and invalid because outside any recognized category permitting suppression will be apparent from its face. In my view that was true of the New York statute we considered in Simon & Schuster, and no further inquiry was necessary. To read the statute was sufficient to strike it down as an effort by government to restrict expression because of its content.
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