224
Stevens, J., dissenting
great a potential interference with orderly access to the polls as does the distribution of campaign leaflets, the display of campaign posters, or the wearing of campaign buttons. This discriminatory feature of the statute severely undercuts the credibility of its purported law-and-order justification.
Tennessee's content-based discrimination is particularly problematic because such a regulation will inevitably favor certain groups of candidates. As the testimony in this case illustrates, several groups of candidates rely heavily on last-minute campaigning. See App. 22-23. Candidates with fewer resources, candidates for lower visibility offices, and "grassroots" candidates benefit disproportionately from last-minute campaigning near the polling place. See Note, Defoliating the Grassroots: Election Day Restrictions on Political Speech, 77 Geo. L. J. 2137, 2158-2160 (1989) (collecting authorities).
Although the plurality recognizes that the Tennessee statute is content based, see ante, at 197-198, it does not inquire into whether that discrimination itself is related to any purported state interest. To the contrary, the plurality makes the surprising and unsupported claim that the selective regulation of protected speech is justified because, "[t]he First Amendment does not require States to regulate for problems that do not exist." Ante, at 207. Yet earlier this Term, the Court rejected an asserted state interest because that interest "ha[d] nothing to do with the State's" content-based distinctions among expressive activities. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 120 (1991); see also Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 231 (1987). Similarly in Carey v. Brown, 447 U. S. 455, 464-465 (1980), the Court acknowledged Illinois' interest in "residential privacy" but invalidated that State's ban on picketing because its distinction between labor and nonlabor picketing could not be "justified by reference to the State's interest in maintaining domestic tranquility."
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