Hill v. Colorado, 530 U.S. 703, 43 (2000)

Page:   Index   Previous  36  37  38  39  40  41  42  43  44  45  46  47  48  49  50  Next

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

Scalia, J., dissenting

nication.' " Frisby v. Schultz, 487 U. S. 474, 497 (1988) (Stevens, J., dissenting), quoting NLRB v. Retail Store Employees, 447 U. S. 607, 618-619 (1980) (Stevens, J., concurring in part and concurring in result). The latter opinion quoted approvingly Justice Douglas's statement:

"Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulation." Bakery Drivers v. Wohl, 315 U. S. 769, 776-777 (1942) (concurring opinion).

As Justice Stevens went on to explain, "no doubt the principal reason why handbills containing the same message are so much less effective than labor picketing is that the former depend entirely on the persuasive force of the idea." Retail Store Employees, supra, at 619. Today, of course, Justice Stevens gives us an opinion restricting not only handbilling but even one-on-one conversation of a particular content. There comes a point—and the Court's opinion today passes it—at which the regulation of action intimately and unavoidably connected with traditional speech is a regulation of speech itself. The strictures of the First Amendment cannot be avoided by regulating the act of moving one's lips; and they cannot be avoided by regulating the act of extending one's arm to deliver a handbill, or peacefully approaching in order to speak. All of these acts can be regulated, to be sure; but not, on the basis of content, without satisfying the requirements of our strict-scrutiny First Amendment jurisprudence.

Even with regard to picketing, of course, we have applied strict scrutiny to content-based restrictions. See Carey, 447 U. S., at 461 (applying strict scrutiny to, and invalidating, an Illinois statute that made "permissibility of residential

745

Page:   Index   Previous  36  37  38  39  40  41  42  43  44  45  46  47  48  49  50  Next

Last modified: October 4, 2007