R. A. V. v. St. Paul, 505 U.S. 377, 27 (1992)

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

White, J., concurring in judgment

Furthermore, the Court obscures the line between speech that could be regulated freely on the basis of content (i. e., the narrow categories of expression falling outside the First Amendment) and that which could be regulated on the basis of content only upon a showing of a compelling state interest (i. e., all remaining expression). By placing fighting words, which the Court has long held to be valueless, on at least equal constitutional footing with political discourse and other forms of speech that we have deemed to have the greatest social value, the majority devalues the latter category. See Burson v. Freeman, supra, at 196; Eu v. San Francisco Cty. Democratic Central Comm., 489 U. S. 214, 222-223 (1989).

B

In a second break with precedent, the Court refuses to sustain the ordinance even though it would survive under the strict scrutiny applicable to other protected expression. Assuming, arguendo, that the St. Paul ordinance is a content-based regulation of protected expression, it nevertheless would pass First Amendment review under settled law upon a showing that the regulation " 'is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.' " Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 118 (1991) (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 231 (1987)). St. Paul has urged that its ordinance, in the words of the majority, "helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination . . . ." Ante, at 395. The Court expressly concedes that this interest is compelling and is promoted by the ordinance. Ibid. Nevertheless, the Court treats strict scrutiny analysis as irrelevant to the constitutionality of the legislation:

"The dispositive question . . . is whether content discrimination is reasonably necessary to achieve St. Paul's compelling interests; it plainly is not. An ordinance not

403

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