400
White, J., concurring in judgment
All of these categories are content based. But the Court has held that the First Amendment does not apply to them because their expressive content is worthless or of de mini-mis value to society. Chaplinsky, supra, at 571-572. We have not departed from this principle, emphasizing repeatedly that, "within the confines of [these] given classification[s], the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required." Ferber, supra, at 763-764; Bigelow v. Virginia, 421 U. S. 809, 819 (1975). This categorical approach has provided a principled and narrowly focused means for distinguishing between expression that the government may regulate freely and that which it may regulate on the basis of content only upon a showing of compelling need.2
Today, however, the Court announces that earlier Courts did not mean their repeated statements that certain categories of expression are "not within the area of constitutionally protected speech." Roth, supra, at 483. See ante, at 383, citing Beauharnais v. Illinois, 343 U. S. 250, 266 (1952); Chaplinsky, supra, at 571-572; Bose Corp., supra, at 504; Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 124 (1989). The present Court submits that such clear statements "must be taken in context" and are not "literally true." Ante, at 383.
To the contrary, those statements meant precisely what they said: The categorical approach is a firmly entrenched part of our First Amendment jurisprudence. Indeed, the Court in Roth reviewed the guarantees of freedom of expression in effect at the time of the ratification of the Constitution and concluded, "In light of this history, it is apparent that the unconditional phrasing of the First Amendment was
2 "In each of these areas, the limits of the unprotected category, as well as the unprotected character of particular communications, have been determined by the judicial evaluation of special facts that have been deemed to have constitutional significance." Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 504-505 (1984).
Page: Index Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 NextLast modified: October 4, 2007