Hill v. Colorado, 530 U.S. 703, 44 (2000)

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746

HILL v. COLORADO

Scalia, J., dissenting

picketing . . . dependent solely on the nature of the message being conveyed"). As discussed above, the prohibition here is content based: Those who wish to speak for purposes other than protest, counsel, or education may do so at close range without the listener's consent, while those who wish to speak for other purposes may not. This bears no resemblance to a blanket prohibition of picketing—unless, of course, one uses the fanciful definition of picketing ("an effort to persuade or otherwise influence") newly discovered by today's opinion. As for the Court's appeal to the fact that we often "examine the content of a communication" to determine whether it "constitutes a threat, blackmail, an agreement to fix prices, a copyright violation, a public offering of securities, or an offer to sell goods," ante, at 721, the distinction is almost too obvious to bear mention: Speech of a certain content is constitutionally proscribable. The Court has not yet taken the step of consigning "protest, education, and counseling" to that category.

Finally, the Court is not correct in its assertion that the restriction here is content neutral because it is "justified without reference to the content of regulated speech," in the sense that "the State's interests in protecting access and privacy, and providing the police with clear guidelines, are unrelated to the content of the demonstrators' speech." Ante, at 719-720 (emphasis added). That is not an accurate statement of our law. The Court makes too much of the statement in Ward v. Rock Against Racism, 491 U. S. 781 (1989), that "[t]he principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Id., at 791, quoted ante, at 719. That is indeed "the principal inquiry"—suppression of uncongenial ideas is the worst offense against the First Amendment—but it is not the only inquiry. Even a law that has as its purpose something unrelated to the suppression of particular content cannot irrationally single out that content for its prohibition.

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