770
Kennedy, J., dissenting
Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991) (" 'Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment' " (quoting Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984))). Here the statute "suppresses expression out of concern for its likely communicative impact." Eichman, 496 U. S., at 317. Like the picketing statute struck down in Boos v. Barry, 485 U. S. 312 (1998), this prohibition seeks to eliminate public discourse on an entire subject and topic. The Court can cite not a single case where we sustained a law aimed at a broad class of topics on grounds that it is both content and viewpoint neutral. Cf. McIntyre v. Ohio Elections Comm'n, supra, at 345 ("[E]ven though this provision applies evenhandedly to advocates of differing viewpoints, it is a direct regulation of the content of speech"); Boos, supra, at 319 ("[A] regulation that 'does not favor either side of a political controversy' is nonetheless impermissible because the 'First Amendment's hostility to content-based regulation extends . . . to prohibition of public discussion of an entire topic' " (quoting Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U. S. 530, 537 (1980))); see also First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784-785 (1978) (invalidating statute which permitted corporations to speak on political issues decided by referenda, but not on other subjects). Statutes which impose content-based or viewpoint-based restrictions are subjected to exacting scrutiny. The State has failed to sustain its burden of proving that its statute is content and viewpoint neutral. See United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816 (2000) ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions"). The Ward time, place, and manner analysis is simply inapplicable to this law. I would hold the statute invalid from the very start.
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