414
White, J., concurring in judgment
therefore understand the court to have ruled that St. Paul may constitutionally prohibit expression that "by its very utterance" causes "anger, alarm or resentment."
Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected. See United States v. Eichman, 496 U. S. 310, 319 (1990); Texas v. Johnson, 491 U. S. 397, 409, 414 (1989); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55-56 (1988); FCC v. Pacifica Foundation, 438 U. S. 726, 745 (1978); Hess v. Indiana, 414 U. S. 105, 107-108 (1973); Cohen v. California, 403 U. S. 15, 20 (1971); Street v. New York, 394 U. S. 576, 592 (1969); Terminiello v. Chicago, 337 U. S. 1 (1949).
In the First Amendment context, "[c]riminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application." Houston v. Hill, 482 U. S. 451, 459 (1987) (citation omitted). The St. Paul antibias ordinance is such a law. Although the ordinance reaches conduct that is unprotected, it also makes criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the First Amendment. Cf. Lewis, supra, at 132.13 The ordinance is therefore fatally overbroad and invalid on its face.
13 Although the First Amendment protects offensive speech, Johnson v. Texas, 491 U. S., at 414, it does not require us to be subjected to such expression at all times, in all settings. We have held that such expression may be proscribed when it intrudes upon a "captive audience." Frisby v. Schultz, 487 U. S. 474, 484-485 (1988); FCC v. Pacifica Foundation, 438 U. S. 726, 748-749 (1978). And expression may be limited when it merges into conduct. United States v. O'Brien, 391 U. S. 367 (1968); cf. Meritor Savings Bank, F. S. B. v. Vinson, 477 U. S. 57, 65 (1986). However, because of the manner in which the Minnesota Supreme Court construed the St. Paul ordinance, those issues are not before us in this case.
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