Burson v. Freeman, 504 U.S. 191, 27 (1992)

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Cite as: 504 U. S. 191 (1992)

Stevens, J., dissenting

Justice Stevens, with whom Justice O'Connor and Justice Souter join, dissenting.

The speech and conduct prohibited in the campaign-free zone created by Tenn. Code Ann. § 2-7-111 (Supp. 1991) is classic political expression. As this Court has long recognized, "[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' " Buckley v. Valeo, 424 U. S. 1, 14 (1976) (citation omitted). Therefore, I fully agree with the plurality that Tennessee must show that its " 'regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.' " Ante, at 198 (citations omitted). I do not agree, however, that Tennessee has made anything approaching such a showing.

I

Tennessee's statutory "campaign-free zone" raises constitutional concerns of the first magnitude. The statute directly regulates political expression and thus implicates a core concern of the First Amendment. Moreover, it targets only a specific subject matter (campaign speech) and a defined class of speakers (campaign workers) and thus regulates expression based on its content. In doing so, the Tennessee statute somewhat perversely disfavors speech that normally is accorded greater protection than the kinds of speech that the statute does not regulate. For these reasons, Tennessee unquestionably bears the heavy burden of demonstrating that its silencing of political expression is necessary and narrowly tailored to serve a compelling state interest.

Statutes creating campaign-free zones outside polling places serve two quite different functions—they protect or-

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