Hill v. Colorado, 530 U.S. 703, 60 (2000)

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762

HILL v. COLORADO

Scalia, J., dissenting

proscribable (i. e., 'fighting words' or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, this provision cannot stand." 512 U. S., at 774 (citation omitted).

The foregoing discussion of overbreadth was written before the Court, in responding to Justice Kennedy, abandoned any pretense at compliance with that doctrine, and acknowledged—indeed, boasted—that the statute it approves "takes a prophylactic approach," ante, at 729, and adopts "[a] bright-line prophylactic rule," ibid.5 I scarcely know how to respond to such an unabashed repudiation of our First Amendment doctrine. Prophylaxis is the antithesis of narrow tailoring, as the previously quoted passage from Button makes clear ("Broad prophylactic rules in the area of free expression are suspect. . . . Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." 371 U. S., at 438). If the Court were going to make this concession, it could simply have dispensed with its earlier (unpersuasive) attempt to show that the statute was narrowly tailored. So one can add to the casualties of our whatever-it-takes proabortion jurisprudence the First Amendment doctrine of narrow tailoring and overbreadth. R. I. P.

* * *

Before it effectively threw in the towel on the narrow-tailoring point, the Court asserted the importance of taking

5 Of course the Court greatly understates the scope of the prophylaxis, saying that "the statute's prophylactic aspect is justified by the great difficulty of protecting, say, a pregnant woman from physical harassment with legal rules that focus exclusively on the individual impact of each instance of behavior," ante, at 729. But the statute prevents the "physically harassing" act of (shudder!) approaching within closer than eight feet not only when it is directed against pregnant women, but also (just to be safe) when it is directed against 300-pound, male, and unpregnant truck drivers—surely a distinction that is not "difficult to make accurately," ibid.

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