404
White, J., concurring in judgment
limited to the favored topics, for example, would have precisely the same beneficial effect." Ante, at 395-396.
Under the majority's view, a narrowly drawn, content-based ordinance could never pass constitutional muster if the object of that legislation could be accomplished by banning a wider category of speech. This appears to be a general renunciation of strict scrutiny review, a fundamental tool of First Amendment analysis.5
This abandonment of the doctrine is inexplicable in light of our decision in Burson v. Freeman, 504 U. S. 191 (1992), which was handed down just a month ago.6 In Burson, seven of the eight participating Members of the Court agreed that the strict scrutiny standard applied in a case involving a First Amendment challenge to a content-based statute. See id., at 198 (plurality opinion); id., at 217 (Stevens, J.,
5 The majority relies on Boos v. Barry, 485 U. S. 312 (1988), in arguing that the availability of content-neutral alternatives " 'undercut[s] significantly' " a claim that content-based legislation is " 'necessary to serve the asserted [compelling] interest.' " Ante, at 395 (quoting Boos, supra, at 329, and Burson v. Freeman, 504 U. S. 191, 199 (1992) (plurality opinion)). Boos does not support the majority's analysis. In Boos, Congress already had decided that the challenged legislation was not necessary, and the Court pointedly deferred to this choice. 485 U. S., at 329. St. Paul law-makers have made no such legislative choice.
Moreover, in Boos, the Court held that the challenged statute was not narrowly tailored because a less restrictive alternative was available. Ibid. But the Court's analysis today turns Boos inside-out by substituting the majority's policy judgment that a more restrictive alternative could adequately serve the compelling need identified by St. Paul lawmakers. The result would be: (a) a statute that was not tailored to fit the need identified by the government; and (b) a greater restriction on fighting words, even though the Court clearly believes that fighting words have protected expressive content. Ante, at 384-385.
6 Earlier this Term, seven of the eight participating Members of the Court agreed that strict scrutiny analysis applied in Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 (1991), in which we struck down New York's "Son of Sam" law, which required "that an accused or convicted criminal's income from works describing his crime be deposited in an escrow account." Id., at 108.
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