R. A. V. v. St. Paul, 505 U.S. 377, 9 (1992)

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Cite as: 505 U. S. 377 (1992)

Opinion of the Court

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 401; sometimes they are quite expressive indeed. We have not said that they constitute "no part of the expression of ideas," but only that they constitute "no essential part of any exposition of ideas." Chaplinsky, supra, 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. 560, 569-570 (1991) (plurality opinion); id., at 573-574 (Scalia, J., concurring in judgment); id., at 581-582 (Souter, J., concurring in judgment); United

Brown, 447 U. S. 455 (1980). See generally Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 124 (1991) (Kennedy, J., concurring in judgment).

Justice Stevens seeks to avoid the point by dismissing the notion of obscene antigovernment speech as "fantastical," post, at 418, apparently believing that any reference to politics prevents a finding of obscenity. Unfortunately for the purveyors of obscenity, that is obviously false. A shockingly hardcore pornographic movie that contains a model sporting a political tattoo can be found, "taken as a whole, [to] lac[k] serious literary, artistic, political, or scientific value," Miller v. California, 413 U. S. 15, 24 (1973) (emphasis added). Anyway, it is easy enough to come up with other illustrations of a content-based restriction upon "unprotected speech" that is obviously invalid: the antigovernment libel illustration mentioned earlier, for one. See supra, at 384. And of course the concept of racist fighting words is, unfortunately, anything but a "highly speculative hypothetica[l]," post, at 419.

385

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