422
Stevens, J., concurring in judgment
It is also beyond question that the Government may choose to limit advertisements for cigarettes, see 15 U. S. C. §§ 1331- 1340,3 but not for cigars; choose to regulate airline advertising, see Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992), but not bus advertising; or choose to monitor solicitation by lawyers, see Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), but not by doctors.
All of these cases involved the selective regulation of
speech based on content—precisely the sort of regulation the Court invalidates today. Such selective regulations are unavoidably content based, but they are not, in my opinion, "presumptively invalid." As these many decisions and examples demonstrate, the prohibition on content-based regulations is not nearly as total as the Mosley dictum suggests.
Disregarding this vast body of case law, the Court today goes beyond even the overstatement in Mosley and applies the prohibition on content-based regulation to speech that the Court had until today considered wholly "unprotected" by the First Amendment—namely, fighting words. This new absolutism in the prohibition of content-based regulations severely contorts the fabric of settled First Amendment law.
Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and fighting words receive the least protection of all. Assuming that the Court is correct that this last class of speech is not wholly "unprotected," it certainly does not follow that fighting words and obscenity receive the same sort of protection afforded core political speech. Yet in ruling that proscribable speech cannot be regulated based on subject
3 See also Packer Corp. v. Utah, 285 U. S. 105 (1932) (Brandeis, J.) (upholding a statute that prohibited the advertisement of cigarettes on billboards and streetcar placards).
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