Hill v. Colorado, 530 U.S. 703, 58 (2000)

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760

HILL v. COLORADO

Scalia, J., dissenting

Compare with these venerable and consistent descriptions of our First Amendment law the defenses that the Court makes to the contention that the present statute is over-broad. (To be sure, the Court is assuming its own invented state interest—protection of the "right to be let alone"— rather than the interest that the statute describes, but even so the statements are extraordinary.) "The fact," the Court says, "that the coverage of a statute is broader than the specific concern that led to its enactment is of no constitutional significance." Ante, at 730-731. That is true enough ordinarily, but it is not true with respect to restraints upon speech, which is what the doctrine of overbreadth is all about. (Of course it is also not true, thanks to one of the other proabortion "firsts" announced by the current Court, with respect to restrictions upon abortion, which—as our decision in Stenberg v. Carhart, post, p. 914, exemplifies—has been raised to First Amendment status, even as speech opposing abortion has been demoted from First Amendment status.) Again, the Court says that the overbreadth doctrine is not applicable because this law simply "does not 'ban' any signs, literature, or oral statements," but "merely regulates the places where communications may occur." Ante, at 731. I know of no precedent for the proposition that time, place, and manner restrictions are not subject to the doctrine of overbreadth. Our decision in Grace, supra, demonstrates the contrary: Restriction of speech on the sidewalks around

in Frisby v. Schultz, 487 U. S. 474 (1988), and Heffron, and in cases requiring "silence" outside of a hospital (by which I presume the Court means Madsen v. Women's Health Center, Inc., 512 U. S. 753 (1994)), misses the point of narrow-tailoring analysis. We do not compare restrictions on speech to some Platonic ideal of speech restrictiveness, or to each other. Rather, our First Amendment doctrine requires us to consider whether the regulation in question burdens substantially more speech than necessary to achieve the particular interest the government has identified and asserted. Ward, 491 U. S., at 799. In each of the instances the Court cites, we concluded that the challenged regulation contained the precision that our cases require and that Colorado's statute (which the Court itself calls "prophylactic," ante, at 729) manifestly lacks.

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