Hill v. Colorado, 530 U.S. 703, 41 (2000)

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Cite as: 530 U. S. 703 (2000)

Scalia, J., dissenting

universe of content-based regulations is limited to those two categories, and such a holding would be absurd. Imagine, for instance, special place-and-manner restrictions on all speech except that which "conveys a sense of contentment or happiness." This "happy speech" limitation would not be "viewpoint based"—citizens would be able to express their joy in equal measure at either the rise or fall of the NASDAQ, at either the success or the failure of the Republican Party—and would not discriminate on the basis of subject matter, since gratification could be expressed about anything at all. Or consider a law restricting the writing or recitation of poetry—neither viewpoint based nor limited to any particular subject matter. Surely this Court would consider such regulations to be "content based" and deserving of the most exacting scrutiny.1

"The vice of content-based legislation—what renders it deserving of the high standard of strict scrutiny—is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes." Madsen,

1 The Court responds that statutes which restrict categories of speech— as opposed to subject matter or viewpoint—are constitutionally worrisome only if a "significant number of communications, raising the same problem that the statute was enacted to solve, . . . fall outside the statute's scope, while others fall inside." Ante, at 723. I am not sure that is correct, but let us assume, for the sake of argument, that it is. The Court then proceeds to assert that "[t]he statutory phrases, 'oral protest, education, or counseling,' distinguish speech activities likely to" present the problem of "harassment, . . . nuisance, . . . persistent importuning, . . . following, . . . dogging, and . . . implied threat of physical touching," from "speech activities [such as my example of 'happy speech'] that are most unlikely to have those consequences," ante, at 724. Well. That may work for "oral protest"; but it is beyond imagining why "education" and "counseling" are especially likely, rather than especially unlikely, to involve such conduct. (Socrates was something of a noodge, but even he did not go that far.) Unless, of course, "education" and "counseling" are code words for efforts to dissuade women from abortion—in which event the statute would not be viewpoint neutral, which the Court concedes makes it invalid.

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