428
Stevens, J., concurring in judgment
broad claim. Similarly, we have consistently construed the "fighting words" exception set forth in Chaplinsky narrowly. See, e. g., Houston v. Hill, 482 U. S. 451 (1987); Lewis v. New Orleans, 415 U. S. 130 (1974); Cohen v. California, 403 U. S. 15 (1971). In the case of commercial speech, our ruling that "the Constitution imposes no . . . restraint on government [regulation] as respects purely commercial advertising," Valentine v. Chrestensen, 316 U. S. 52, 54 (1942), was expressly repudiated in Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). In short, the history of the categorical approach is largely the history of narrowing the categories of unprotected speech.
This evolution, I believe, indicates that the categorical approach is unworkable and the quest for absolute categories of "protected" and "unprotected" speech ultimately futile. My analysis of the faults and limits of this approach persuades me that the categorical approach presented in Part I-A of Justice White's opinion is not an adequate response to the novel "underbreadth" analysis the Court sets forth today.
III
As the foregoing suggests, I disagree with both the Court's and part of Justice White's analysis of the constitutionality of the St. Paul ordinance. Unlike the Court, I do not believe that all content-based regulations are equally infirm and presumptively invalid; unlike Justice White, I do not believe that fighting words are wholly unprotected by the First Amendment. To the contrary, I believe our decisions establish a more complex and subtle analysis, one that considers the content and context of the regulated speech, and the nature and scope of the restriction on speech. Applying this analysis and assuming, arguendo, (as the Court does) that the St. Paul ordinance is not overbroad, I conclude that such a selective, subject-matter regulation on proscribable speech is constitutional.
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