402
White, J., concurring in judgment
Therefore, the Court's insistence on inventing its brand of First Amendment underinclusiveness puzzles me.3 The overbreadth doctrine has the redeeming virtue of attempting to avoid the chilling of protected expression, Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973); Osborne v. Ohio, 495 U. S. 103, 112, n. 8 (1990); Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503 (1985); Ferber, supra, at 772, but the Court's new "underbreadth" creation serves no desirable function. Instead, it permits, indeed invites, the continuation of expressive conduct that in this case is evil and worthless in First Amendment terms, see Ferber, supra, at 763- 764; Chaplinsky, supra, at 571-572, until the city of St. Paul cures the underbreadth by adding to its ordinance a catchall phrase such as "and all other fighting words that may constitutionally be subject to this ordinance."
Any contribution of this holding to First Amendment jurisprudence is surely a negative one, since it necessarily signals that expressions of violence, such as the message of intimidation and racial hatred conveyed by burning a cross on someone's lawn, are of sufficient value to outweigh the social interest in order and morality that has traditionally placed such fighting words outside the First Amendment.4 Indeed, by characterizing fighting words as a form of "debate," ante, at 392, the majority legitimates hate speech as a form of public discussion.
3 The assortment of exceptions the Court attaches to its rule belies the majority's claim, see ante, at 387, that its new theory is truly concerned with content discrimination. See Part I-C, infra (discussing the exceptions).
4 This does not suggest, of course, that cross burning is always unprotected. Burning a cross at a political rally would almost certainly be protected expression. Cf. Brandenburg v. Ohio, 395 U. S. 444, 445 (1969). But in such a context, the cross burning could not be characterized as a "direct personal insult or an invitation to exchange fisticuffs," Texas v. Johnson, 491 U. S. 397, 409 (1989), to which the fighting words doctrine, see Part II, infra, applies.
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