Cite as: 505 U. S. 377 (1992)
White, J., concurring in judgment
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 criminalizes not only unprotected expression but expression protected by the First Amendment. See Part II, infra. Instead, "find[ing] it unnecessary" to consider the questions upon which we granted review,1 ante, at 381, the
1 The Court granted certiorari to review the following questions: "1. May a local government enact a content-based, 'hate-crime' ordinance prohibiting the display of symbols, including a Nazi swastika or a burning cross, on public or private property, which one knows or has reason to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender without violating overbreadth and vagueness principles of the First Amendment to the United States Constitution?
"2. Can the constitutionality of such a vague and substantially over-broad content-based restraint of expression be saved by a limiting construction, like that used to save the vague and overbroad content-neutral laws, restricting its application to 'fighting words' or 'imminent lawless action?' " Pet. for Cert. i.
It has long been the rule of this Court that "[o]nly the questions set forth in the petition, or fairly included therein, will be considered by the Court." This Court's Rule 14.1(a). This Rule has served to focus the issues presented for review. But the majority reads the Rule so expansively that any First Amendment theory would appear to be "fairly included" within the questions quoted above.
Contrary to the impression the majority attempts to create through its selective quotation of petitioner's briefs, see ante, at 381-382, n. 3, petitioner did not present to this Court or the Minnesota Supreme Court anything approximating the novel theory the majority adopts today. Most certainly petitioner did not "reiterat[e]" such a claim at argument; he responded to a question from the bench, Tr. of Oral Arg. 8. Previously, this Court has shown the restraint to refrain from deciding cases on the basis
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