506
Thomas, J., dissenting
What we are now left with, if we are to take the majority opinion at face value, is one of two disturbing consequences: Either (1) paying for advertising is not speech at all, while such activities as draft card burning, flag burning, armband wearing, public sleeping, and nude dancing are,4 or (2) compelling payment for third-party communication does not implicate speech, and thus the Government would be free to force payment for a whole variety of expressive conduct that it could not restrict. In either case, surely we have lost our way.
may not "enact Mr. Herbert Spencer's Social Statics," Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting), and thus the Government has a considerable range of authority in regulating the Nation's economic structure, part of the Constitution—the First Amendment—does enact a distinctly individualistic notion of "the freedom of speech," and Congress may not simply collectivize that aspect of our society, regardless of what it may do elsewhere.
4 See United States v. O'Brien, 391 U. S. 367 (1968) (draft card burning); Texas v. Johnson, 491 U. S. 397 (1989) (flag burning); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969) (armbands); Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) (prohibition on sleeping in park raises First Amendment issues); Schad v. Mount Ephraim, 452 U. S. 61 (1981) (nude dancing).
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