home *** CD-ROM | disk | FTP | other *** search
- SUPREME COURT OF THE UNITED STATES
- --------
- No. 92-1856
- --------
- CITY OF LADUE, et al., PETITIONERS v.
- MARGARET P. GILLEO
- on writ of certiorari to the united states court
- of appeals for the eighth circuit
- [June 13, 1994]
-
- Justice O'Connor, concurring.
- It is unusual for us, when faced with a regulation that
- on its face draws content distinctions, to -assume, argu-
- endo, the validity of the City's submission that the vari-
- ous exemptions are free of impermissible content or
- viewpoint discrimination.- Ante, at 10. With rare ex-
- ceptions, content discrimination in regulations of the
- speech of private citizens on private property or in a
- traditional public forum is presumptively impermissible,
- and this presumption is a very strong one. Simon &
- Schuster, Inc. v. New York Crime Victims Board, ___
- U. S. ___, ___ [112 S. Ct. 501, 508-509 (1991)]. The
- normal inquiry that our doctrine dictates is, first, to
- determine whether a regulation is content-based or
- content-neutral, and then, based on the answer to that
- question, to apply the proper level of scrutiny. See, e.g.,
- Burson v. Freeman, ___ U. S. ___, ___ [112 S. Ct. 1846,
- 1850-1851] (1992) (plurality opinion); Forsyth County,
- Ga. v. Nationalist Movement, ___ U. S. ___, ___ [112
- S. Ct. 2395, 2403-2404] (1992); Simon & Schuster, supra,
- at ___-___ [508-509]; Boos v. Barry, 485 U. S. 312,
- 318-321 (1988) (plurality opinion); Arkansas Writers'
- Project, Inc. v. Ragland, 481 U. S. 221, 229-231 (1987);
- Carey v. Brown, 447 U. S. 455, 461-463 (1980); Police
- Department of Chicago v. Mosley, 408 U. S. 92, 95,
- 98-99 (1972).
- Over the years, some cogent criticisms have been lev-
- eled at our approach. See, e.g., R. A. V. v. City of St.
- Paul, ___ U. S. ___, ___ [112 S. Ct. 2538, 2563] (1992)
- (Stevens, J., concurring in the judgment); Consolidated
- Edison Co. of N.Y. v. Public Service Comm'n of N.Y., 447
- U. S. 530, 544-548 (1980) (Stevens, J., concurring in
- the judgment); Farber, Content Regulation and the First
- Amendment: A Revisionist View, 68 Geo. L. J. 727
- (1980); Stephan, The First Amendment and Content Dis-
- crimination, 68 Va. L. Rev. 203 (1982). And it is quite
- true that regulations are occasionally struck down be-
- cause of their content-based nature, even though com-
- mon sense may suggest that they are entirely reason-
- able. The content distinctions present in this ordinance
- may, to some, be a good example of this.
- But though our rule has flaws, it has substantial merit
- as well. It is a rule, in an area where fairly precise
- rules are better than more discretionary and more sub-
- jective balancing tests. See Hustler Magazine v. Falwell,
- 485 U. S. 46, 52-53 (1988). On a theoretical level, it
- reflects important insights into the meaning of the free
- speech principle-for instance, that content-based speech
- restrictions are especially likely to be improper attempts
- to value some forms of speech over others, or are parti-
- cularly susceptible to being used by the government to
- distort public debate. See, e.g., ante, at 8-9; Mosley,
- supra, at 95; Stone, Content Regulation and the First
- Amendment, 25 Wm. & Mary L. Rev. 189 (1983). On a
- practical level, it has in application generally led to
- seemingly sensible results. And, perhaps most impor-
- tantly, no better alternative has yet come to light.
- I would have preferred to apply our normal analytical
- structure in this case, which may well have required us
- to examine this law with the scrutiny appropriate to
- content-based regulations. Perhaps this would have
- forced us to confront some of the difficulties with the
- existing doctrine; perhaps it would have shown weak-
- nesses in the rule, and led us to modify it to take into
- account the special factors this case presents. But such
- reexamination is part of the process by which our rules
- evolve and improve.
- Nonetheless, I join the Court's opinion, because I
- agree with its conclusion in Part IV that even if the re-
- striction were content-neutral, it would still be invalid,
- and because I do not think Part III casts any doubt on
- the propriety of our normal content discrimination in-
- quiry.
-