434
Stevens, J., concurring in judgment
gender." In this regard, the ordinance resembles the child pornography law at issue in Ferber, which in effect singled out child pornography because those publications caused far greater harms than pornography involving adults.
Moreover, even if the St. Paul ordinance did regulate fighting words based on its subject matter, such a regulation would, in my opinion, be constitutional. As noted above, subject-matter-based regulations on commercial speech are widespread and largely unproblematic. As we have long recognized, subject-matter regulations generally do not raise the same concerns of government censorship and the distortion of public discourse presented by viewpoint regulations. Thus, in upholding subject-matter regulations we have carefully noted that viewpoint-based discrimination was not implicated. See Young v. American Mini Theatres, 427 U. S., at 67 (emphasizing "the need for absolute neutrality by the government," and observing that the contested statute was not animated by "hostility for the point of view" of the theaters); FCC v. Pacifica Foundation, 438 U. S., at 745-746 (stressing that "government must remain neutral in the marketplace of ideas"); see also FCC v. League of Women's Voters of Cal., 468 U. S., at 412-417 (Stevens, J., dissenting); Metromedia, Inc. v. San Diego, 453 U. S. 490, 554-555 (1981) (Stevens, J., dissenting in part). Indeed, some subject-matter restrictions are a functional necessity in contemporary governance: "The First Amendment does not require States to regulate for problems that do not exist." Burson v. Freeman, 504 U. S., at 207.
Contrary to the suggestion of the majority, the St. Paul
ordinance does not regulate expression based on viewpoint. The Court contends that the ordinance requires proponents of racial intolerance to "follow the Marquis of Queensberry rules" while allowing advocates of racial tolerance to "fight freestyle." The law does no such thing.
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