420
Stevens, J., concurring in judgment
Although the Court has, on occasion, declared that content-based regulations of speech are "never permitted," Police Dept. of Chicago v. Mosley, 408 U. S. 92, 99 (1972), such claims are overstated. Indeed, in Mosley itself, the Court indicated that Chicago's selective proscription of non-labor picketing was not per se unconstitutional, but rather could be upheld if the city demonstrated that nonlabor picketing was "clearly more disruptive than [labor] picketing." Id., at 100. Contrary to the broad dicta in Mosley and elsewhere, our decisions demonstrate that content-based distinctions, far from being presumptively invalid, are an inevitable and indispensable aspect of a coherent understanding of the First Amendment.
This is true at every level of First Amendment law. In broadest terms, our entire First Amendment jurisprudence creates a regime based on the content of speech. The scope of the First Amendment is determined by the content of expressive activity: Although the First Amendment broadly protects "speech," it does not protect the right to "fix prices, breach contracts, make false warranties, place bets with bookies, threaten, [or] extort." Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 270 (1981). Whether an agreement among competitors is a violation of the Sherman Act or protected activity under the Noerr-Pennington doctrine 2 hinges upon the content of the agreement. Similarly, "the line between permissible advocacy and impermissible incitation to crime or violence depends, not merely on the setting in which the speech occurs, but also on exactly what the speaker had to say." Young v. American Mini Theatres, Inc., 427 U. S. 50, 66 (1976) (plurality opinion); see also Musser v. Utah, 333 U. S. 95, 100-103 (1948) (Rutledge, J., dissenting).
2 See Mine Workers v. Pennington, 381 U. S. 657 (1965); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961).
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