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SUPREME COURT OF THE UNITED STATES
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No. 90-7675
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R. A. V., PETITIONER v. CITY OF
ST. PAUL, MINNESOTA
on writ of certiorari to the supreme court of
minnesota
[June 22, 1992]

  Justice White, with whom Justice Blackmun and
Justice O'Connor join, and with whom Justice Stevens
joins except as to Part I(A), concurring in the judgment.
  I agree with the majority that the judgment of the
Minnesota Supreme Court should be reversed.  However,
our agreement ends there.
  This case could easily be decided within the contours of
established First Amendment law by holding, as petitioner
argues, that the St. Paul ordinance is fatally overbroad
because it criminalizes not only unprotected expression but
expression protected by the First Amendment.  See Part II,
infra.  Instead, -find[ing] it unnecessary- to consider the
questions upon which we granted review, ante, at 3, the
Court holds the ordinance facially unconstitutional on a
ground that was never presented to the Minnesota Supreme
Court, a ground that has not been briefed by the parties
before this Court, a ground that requires serious departures
from the teaching of prior cases and is inconsistent with the
plurality opinion in Burson v. Freeman, 504 U. S. ---
(1992), which was joined by two of the five Justices in the
majority in the present case.
  This Court ordinarily is not so eager to abandon its
precedents.  Twice within the past month, the Court has
declined to overturn longstanding but controversial deci-
sions on questions of constitutional law.  See Allied Signal,
Inc. v. Director, Division of Taxation, 504 U. S. - (1992);
Quill Corp. v. North Dakota, 504 U. S. - (1992).  In each
case, we had the benefit of full briefing on the critical issue,
so that the parties and amici had the opportunity to apprise
us of the impact of a change in the law.  And in each case,
the Court declined to abandon its precedents, invoking the
principle of stare decisis.  Allied Signal, Inc., supra, at -
(slip op., at 12); Quill Corp., supra, at - (slip op., at
17-18).
   But in the present case, the majority casts aside long-
established First Amendment doctrine without the benefit
of briefing and adopts an untried theory.  This is hardly a
judicious way of proceeding, and the Court's reasoning in
reaching its result is transparently wrong.
                            I
                            A
  This Court's decisions have plainly stated that expression
falling within certain limited categories so lacks the values
the First Amendment was designed to protect that the
Constitution affords no protection to that expression.
Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), made
the point in the clearest possible terms:
-There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of
which have never been thought to raise any Constitu-
tional problem. . . .  It has been well observed that such
utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to
truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and
morality.-  Id., at 571-572.
See also Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485, 504 (1984) (citing Chaplinsky).
  Thus, as the majority concedes, see ante, at 5, this Court
has long held certain discrete categories of expression to be
proscribable on the basis of their content.  For instance, the
Court has held that the individual who falsely shouts -fire-
in a crowded theatre may not claim the protection of the
First Amendment.  Schenck v. United States, 249 U. S. 47,
52 (1919).  The Court has concluded that neither child
pornography, nor obscenity, is protected by the First
Amendment.  New York v. Ferber, 458 U. S. 747, 764
(1982); Miller v. California, 413 U. S. 15, 20 (1973); Roth v.
United States, 354 U. S. 476, 484-485 (1957).  And the
Court has observed that, -[l]eaving aside the special
considerations when public officials [and public figures] are
the target, a libelous publication is not protected by the
Constitution.-  Ferber, supra, at 763 (citations omitted).
  All of these categories are content based.  But the Court
has held that First Amendment does not apply to them
because their expressive content is worthless or of de
minimis value to society.  Chaplinsky, supra, at 571-572.
We have not departed from this principle, emphasizing
repeatedly that, -within the confines of [these] given
classification[s], the evil to be restricted so overwhelmingly
outweighs the expressive interests, if any, at stake, that no
process of case-by-case adjudication is required.-  Ferber,
supra, at 763-764; Bigelow v. Virginia, 421 U. S. 809, 819
(1975).  This categorical approach has provided a principled
and narrowly focused means for distinguishing between
expression that the government may regulate freely and
that which it may regulate on the basis of content only
upon a showing of compelling need.

  Today, however, the Court announces that earlier Courts
did not mean their repeated statements that certain
categories of expression are -not within the area of constitu-
tionally protected speech.-  Roth, supra, at 483.  See ante,
at 5, citing Beauharnais v. Illinois, 343 U. S. 250, 266
(1952); Chaplinsky, supra, at 571-572; Bose Corp., supra, at
504; Sable Communications of Cal., Inc. v. FCC, 492 U. S.
115, 124 (1989).  The present Court submits that such clear
statements -must be taken in context- and are not -literally
true.-  Ante, at 5.
  To the contrary, those statements meant precisely what
they said:  The categorical approach is a firmly entrenched
part of our First Amendment jurisprudence.  Indeed, the
Court in Roth reviewed the guarantees of freedom of
expression in effect at the time of the ratification of the
Constitution and concluded, -[i]n light of this history, it is
apparent that the unconditional phrasing of the First
Amendment was not intended to protect every utterance.-
354 U. S., at 482-483.
  In its decision today, the Court points to -[n]othing . . . in
this Court's precedents warrant[ing] disregard of this
longstanding tradition.-  Burson, 504 U. S., at --- (slip op.,
at 3) (Scalia, J., concurring in judgment); Allied Signal,
Inc., supra, at --- (slip op., at 12).  Nevertheless, the
majority holds that the First Amendment protects those
narrow categories of expression long held to be undeserving
of First Amendment protection-at least to the extent that
lawmakers may not regulate some fighting words more
strictly than others because of their content.  The Court
announces that such content-based distinctions violate the
First Amendment because -the government may not
regulate use based on hostility-or favoritism-towards the
underlying message expressed.-  Ante, at 8.  Should the
government want to criminalize certain fighting words, the
Court now requires it to criminalize all fighting words.
  To borrow a phrase, -Such a simplistic, all-or-nothing-at-
all approach to First Amendment protection is at odds with
common sense and with our jurisprudence as well.-  Ante,
at 6.  It is inconsistent to hold that the government may
proscribe an entire category of speech because the content
of that speech is evil, Ferber, supra, at 763-764; but that
the government may not treat a subset of that category
differently without violating the First Amendment; the
content of the subset is by definition worthless and unde-
serving of constitutional protection.
  The majority's observation that fighting words are ``quite
expressive indeed,'' ante, at 7, is no answer.  Fighting words
are not a means of exchanging views, rallying supporters,
or registering a protest; they are directed against individu-
als to provoke violence or to inflict injury.  Chaplinsky, 315
U. S., at 572.  Therefore, a ban on all fighting words or on
a subset of the fighting words category would restrict only
the social evil of hate speech, without creating the danger
of driving viewpoints from the marketplace.  See ante, at 9.
  Therefore, the Court's insistence on inventing its brand
of First Amendment underinclusiveness puzzles me.  The
overbreadth doctrine has the redeeming virtue of attempt-
ing to avoid the chilling of protected expression, Broadrick
v. Oklahoma, 413 U. S. 601, 612 (1973); Osborne v. Ohio,
495 U. S. 103, 112, n. 8 (1990); Brockett v. Spokane Arcades,
Inc., 472 U. S. 491, 503 (1985); Ferber, supra, at 772, but
the Court's new -underbreadth- creation serves no desirable
function.  Instead, it permits, indeed invites, the continua-
tion of expressive conduct that in this case is evil and
worthless in First Amendment terms, see Ferber, supra, at
763-764; Chaplinsky, supra, at 571-572, until the city of St.
Paul cures the underbreadth by adding to its ordinance a
catch-all phrase such as -and all other fighting words that
may constitutionally be subject to this ordinance.-
  Any contribution of this holding to First Amendment
jurisprudence is surely a negative one, since it necessarily
signals that expressions of violence, such as the message of
intimidation and racial hatred conveyed by burning a cross
on someone's lawn, are of sufficient value to outweigh the
social interest in order and morality that has traditionally
placed such fighting words outside the First Amendment.
Indeed, by characterizing fighting words as a form of
`'debate,'' ante, at 13, the majority legitimates hate speech
as a form of public discussion.
  Furthermore, the Court obscures the line between speech
that could be regulated freely on the basis of content (i.e.,
the narrow categories of expression falling outside the First
Amendment) and that which could be regulated on the
basis of content only upon a showing of a compelling state
interest (i.e., all remaining expression).  By placing fighting
words, which the Court has long held to be valueless, on at
least equal constitutional footing with political discourse
and other forms of speech that we have deemed to have the
greatest social value, the majority devalues the latter
category.  See Burson v. Freeman, supra, at --- (slip op., at
4-5); Eu v. San Francisco County Democratic Central
Comm., 489 U. S. 214, 222-223 (1989).
                            B
  In a second break with precedent, the Court refuses to
sustain the ordinance even though it would survive under
the strict scrutiny applicable to other protected expression.
Assuming, arguendo, that the St. Paul ordinance is a
content-based regulation of protected expression, it never-
theless would pass First Amendment review under settled
law upon a showing that the regulation -`is necessary to
serve a compelling state interest and is narrowly drawn to
achieve that end.'-  Simon & Schuster, Inc. v. New York
Crime Victims Board, 502 U. S. ---, --- (1991) (slip op., at
11) (quoting Arkansas Writers' Project, Inc., v. Ragland, 481
U. S. 221, 231 (1987)).  St. Paul has urged that its ordi-
nance, in the words of the majority, -helps to ensure the
basic human rights of members of groups that have
historically been subjected to discrimination . . . .-  Ante, at
17.  The Court expressly concedes that this interest is
compelling and is promoted by the ordinance.  Ibid.
Nevertheless, the Court treats strict scrutiny analysis as
irrelevant to the constitutionality of the legislation:
-The dispositive question . . . is whether content
discrimination is reasonably necessary in order to
achieve St. Paul's compelling interests; it plainly is not.
An ordinance not limited to the favored topics would
have precisely the same beneficial effect.-  Ibid.
Under the majority's view, a narrowly drawn, content-based
ordinance could never pass constitutional muster if the
object of that legislation could be accomplished by banning
a wider category of speech.  This appears to be a general
renunciation of strict scrutiny review, a fundamental tool of
First Amendment analysis.
  This abandonment of the doctrine is inexplicable in light
of our decision in Burson v. Freeman, supra, which was
handed down just a month ago.  In Burson, seven of the
eight participating members of the Court agreed that the
strict scrutiny standard applied in a case involving a First
Amendment challenge to a content-based statute.  See id.,
at ___ (slip op., at 6) (plurality); id., at --- (slip op., at 1)
(Stevens, J., dissenting).  The statute at issue prohibited
the solicitation of votes and the display or distribution of
campaign materials within 100 feet of the entrance to a
polling place.  The plurality concluded that the legislation
survived strict scrutiny because the State had asserted a
compelling interest in regulating electioneering near polling
places and because the statute at issue was narrowly
tailored to accomplish that goal.  Id., at --- (slip op., at
17-18).
  Significantly, the statute in Burson did not proscribe all
speech near polling places; it restricted only political
speech.  Id., at --- (slip op., at 5).  The Burson plurality,
which included The Chief Justice and Justice Kennedy,
concluded that the distinction between types of speech
required application of strict scrutiny, but it squarely
rejected the proposition that the legislation failed First
Amendment review because it could have been drafted in
broader, content-neutral terms:
-States adopt laws to address the problems that con-
front them.  The First Amendment does not require
States to regulate for problems that do not exist.-  Id.,
at --- (slip op., at 16) (emphasis added).
This reasoning is in direct conflict with the majority's
analysis in the present case, which leaves two options to
lawmakers attempting to regulate expressions of violence:
(1) enact a sweeping prohibition on an entire class of speech
(thereby requiring -regulat[ion] for problems that do not
exist); or (2) not legislate at all.
  Had the analysis adopted by the majority in the present
case been applied in Burson, the challenged election law
would have failed constitutional review, for its content-
based distinction between political and nonpolitical speech
could not have been characterized as -reasonably neces-
sary,- ante, at 17, to achieve the State's interest in regulat-
ing polling place premises.
  As with its rejection of the Court's categorical analysis,
the majority offers no reasoned basis for discarding our
firmly established strict scrutiny analysis at this time.  The
majority appears to believe that its doctrinal revisionism is
necessary to prevent our elected lawmakers from prohibit-
ing libel against members of one political party but not
another and from enacting similarly preposterous laws.
Ante, at 5-6.  The majority is misguided.
  Although the First Amendment does not apply to catego-
ries of unprotected speech, such as fighting words, the
Equal Protection Clause requires that the regulation of
unprotected speech be rationally related to a legitimate
government interest.  A defamation statute that drew
distinctions on the basis of political affiliation or -an
ordinance prohibiting only those legally obscene works that
contain criticism of the city government,- ante, at 6, would
unquestionably fail rational basis review.
  Turning to the St. Paul ordinance and assuming arguen-
do, as the majority does, that the ordinance is not constitu-
tionally overbroad (but see Part II, infra), there is no
question that it would pass equal protection review.  The
ordinance proscribes a subset of -fighting words,- those that
injure -on the basis of race, color, creed, religion or gender.-
This selective regulation reflects the City's judgment that
harms based on race, color, creed, religion, or gender are
more pressing public concerns than the harms caused by
other fighting words.  In light of our Nation's long and
painful experience with discrimination, this determination
is plainly reasonable.  Indeed, as the majority concedes, the
interest is compelling.  Ante, at 17.
                            C
  The Court has patched up its argument with an appar-
ently nonexhaustive list of ad hoc exceptions, in what can
be viewed either as an attempt to confine the effects of its
decision to the facts of this case, see post, at --- (slip op.,
at 1-2) (Blackmun, J., concurring in judgment), or as an
effort to anticipate some of the questions that will arise
from its radical revision of First Amendment law.
  For instance, if the majority were to give general applica-
tion to the rule on which it decides this case, today's
decision would call into question the constitutionality of the
statute making it illegal to threaten the life of the Presi-
dent.  18 U. S. C. 871.  See Watts v. United States, 394
U. S. 705 (1969) (per curiam).  Surely, this statute, by
singling out certain threats, incorporates a content-based
distinction; it indicates that the Government especially
disfavors threats against the President as opposed to
threats against all others.  See ante, at 13.  But because
the Government could prohibit all threats and not just
those directed against the President,  under the Court's
theory, the compelling reasons justifying the enactment of
special legislation to safeguard the President would be
irrelevant, and the statute would fail First Amendment
review.
  To save the statute, the majority has engrafted the
following exception onto its newly announced First Amend-
ment rule:  Content-based distinctions may be drawn within
an unprotected category of speech if the basis for the
distinctions is ``the very reason the entire class of speech at
issue is proscribable.''  Ante, at 9.  Thus, the argument goes,
the statute making it illegal to threaten the life of the
President is constitutional, ``since the reasons why threats
of violence are outside the First Amendment (protecting
individuals from the fear of violence, from the disruption
that fear engenders, and from the possibility that the
threatened violence will occur) have special force when
applied to the person of the President.''  Ante, at 10.
  The exception swallows the majority's rule.  Certainly, it
should apply to the St. Paul ordinance, since ``the reasons
why [fighting words] are outside the First Amendment . . .
have special force when applied to [groups that have
historically been subjected to discrimination].''
  To avoid the result of its own analysis, the Court suggests
that fighting words are simply a mode of communication,
rather than a content-based category, and that the St. Paul
ordinance has not singled out a particularly objectionable
mode of communication.  Ante, at 8, 15.  Again, the majority
confuses the issue.  A prohibition on fighting words is not
a time, place, or manner restriction; it is a ban on a class of
speech that conveys an overriding message of personal
injury and imminent violence, Chaplinsky, supra, at 572, a
message that is at its ugliest when directed against groups
that have long been the targets of discrimination.  Accord-
ingly, the ordinance falls within the first exception to the
majority's theory.
  As its second exception, the Court posits that certain
content-based regulations will survive under the new
regime if the regulated subclass ``happens to be associated
with particular `secondary effects' of the speech . . .,'' ante,
at 10, which the majority treats as encompassing instances
in which ``words can . . . violate laws directed not against
speech but against conduct . . .''  Ante, at 11.  Again,
there is a simple explanation for the Court's eagerness to
craft an exception to its new First Amendment rule:  Under
the general rule the Court applies in this case, Title VII
hostile work environment claims would suddenly be
unconstitutional.
  Title VII makes it unlawful to discriminate -because of
[an] individual's race, color, religion, sex, or national
origin,- 42 U. S. C. 2000e-2(a)(1), and the regulations
covering hostile workplace claims forbid -sexual harass-
ment,- which includes -[u]nwelcome sexual advances,
requests for sexual favors, and other verbal or physical
conduct of a sexual nature- which creates -an intimidating,
hostile, or offensive working environment.-  29 CFR
1604.11(a) (1991).  The regulation does not prohibit
workplace harassment generally; it focuses on what the
majority would characterize as the -disfavored topi[c]- of
sexual harassment.  Ante, at 13.  In this way, Title VII is
similar to the St. Paul ordinance that the majority con-
demns because it -impose[s] special prohibitions on those
speakers who express views on disfavored subjects.-  Ibid.
Under the broad principle the Court uses to decide the
present case, hostile work environment claims based on
sexual harassment should fail First Amendment review;
because a general ban on harassment in the workplace
would cover the problem of sexual harassment, any attempt
to proscribe the subcategory of sexually harassing expres-
sion would violate the First Amendment.
  Hence, the majority's second exception, which the Court
indicates would insulate a Title VII hostile work environ-
ment claim from an underinclusiveness challenge because
``sexually derogatory `fighting words'. . . may produce a
violation of Title VII's general prohibition against sexual
discrimination in employment practices.''  Ante, at 11.  But
application of this exception to a hostile work environment
claim does not hold up under close examination.
  First, the hostile work environment regulation is not
keyed to the presence or absence of an economic quid pro
quo, Meritor Savings Bank v. Vinson, 477 U. S. 57, 65
(1986), but to the impact of the speech on the victimized
worker.  Consequently, the regulation would no more fall
within a secondary effects exception than does the St. Paul
ordinance.  Ante, at 15-16.  Second, the majority's focus on
the statute's general prohibition on discrimination glosses
over the language of the specific regulation governing
hostile working environment, which reaches beyond any
``incidental'' effect on speech.  United States v. O'Brien, 391
U. S. 367, 376 (1968).  If the relationship between the
broader statute and specific regulation is sufficent to bring
the Title VII regulation within O'Brien, then all St. Paul
need do to bring its ordinance within this exception is to
add some prefatory language concerning discrimination
generally.
  As the third exception to the Court's theory for deciding
this case, the majority concocts a catchall exclusion to
protect against unforeseen problems, a concern that is
heightened here given the lack of briefing on the majority's
decisional theory.  This final exception would apply in cases
in which ``there is no realistic possibility that official
suppression of ideas is afoot.''  Ante, at 12.  As I have
demonstrated, this case does not concern the official
suppression of ideas.  See supra, at 6.  The majority
discards this notion out-of-hand.  Ante, at 16.
  As I see it, the Court's theory does not work and will do
nothing more than confuse the law.  Its selection of this
case to rewrite First Amendment law is particularly
inexplicable, because the whole problem could have been
avoided by deciding this case under settled First Amend-
ment principles.


                           II
  Although I disagree with the Court's analysis, I do agree
with its conclusion: The St. Paul ordinance is unconstitu-
tional.  However, I would decide the case on overbreadth
grounds.
  We have emphasized time and again that overbreadth
doctrine is an exception to the established principle that -a
person to whom a statute may constitutionally be applied
will not be heard to challenge that statute on the ground
that it may conceivably be applied unconstitutionally to
others, in other situations not before the Court.-  Broadrick
v. Oklahoma, 413 U. S., at 610; Brockett v. Spokane
Arcades, Inc., 472 U. S., at 503-504.  A defendant being
prosecuted for speech or expressive conduct may challenge
the law on its face if it reaches protected expression, even
when that person's activities are not protected by the First
Amendment.  This is because -the possible harm to society
in permitting some unprotected speech to go unpunished is
outweighed by the possibility that protected speech of
others may be muted.-  Broadrick, supra, at 612; Osborne
v. Ohio, 495 U. S., at 112, n. 8; New York v. Ferber, supra,
at 768-769; Schaumburg v. Citizens for a Better Environ-
ment, 444 U. S. 620, 634 (1980); Gooding v. Wilson, 405
U. S. 518, 521 (1972).
  However, we have consistently held that, because over-
breadth analysis is -strong medicine,- it may be invoked to
strike an entire statute only when the overbreadth of the
statute is not only -real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep,- Broad-
rick, 413 U. S., at 615, and when the statute is not suscepti-
ble to limitation or partial invalidation.  Id., at 613; Board
of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc.,
482 U. S. 569, 574 (1987).  -When a federal court is dealing
with a federal statute challenged as overbroad, it should . . .
construe the statute to avoid constitutional problems, if the
statute is subject to a limiting construction.-  Ferber, 458
U. S., at 769, n. 24.  Of course, -[a] state court is also free
to deal with a state statute in the same way.-  Ibid.  See,
e.g., Osborne, 495 U. S. at 113-114.
  Petitioner contends that the St. Paul ordinance is not
susceptible to a narrowing construction and that the
ordinance therefore should be considered as written, and
not as construed by the Minnesota Supreme Court.
Petitioner is wrong.  Where a state court has interpreted a
provision of state law, we cannot ignore that interpretation,
even if it is not one that we would have reached if we were
construing the statute in the first instance.  Ibid.; Kolender
v. Lawson, 461 U. S. 352, 355 (1983); Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494, n. 5
(1982).
  Of course, the mere presence of a state court interpreta-
tion does not insulate a statute from overbreadth review.
We have stricken legislation when the construction supplied
by the state court failed to cure the overbreadth problem.
See, e.g., Lewis v. City of New Orleans, 415 U. S. 130,
132-133 (1974); Gooding, supra, at 524-525.  But in such
cases, we have looked to the statute as construed in
determining whether it contravened the First Amendment.
Here, the Minnesota Supreme Court has provided an
authoritative construction of the St. Paul antibias ordi-
nance.  Consideration of petitioner's overbreadth claim
must be based on that interpretation.
  I agree with petitioner that the ordinance is invalid on its
face.  Although the ordinance as construed reaches catego-
ries of speech that are constitutionally unprotected, it also
criminalizes a substantial amount of expression that-how-
ever repugnant-is shielded by the First Amendment.
  In attempting to narrow the scope of the St. Paul antibias
ordinance, the Minnesota Supreme Court relied upon two
of the categories of speech and expressive conduct that fall
outside the First Amendment's protective sphere:  words
that incite -imminent lawless action,- Brandenburg v. Ohio,
395 U. S. 444, 449 (1969), and -fighting- words, Chaplinsky
v. New Hampshire, 315 U. S., at 571-572.  The Minnesota
Supreme Court erred in its application of the Chaplinsky
fighting words test and consequently interpreted the St.
Paul ordinance in a fashion that rendered the ordinance
facially overbroad.
  In construing the St. Paul ordinance, the Minnesota
Supreme Court drew upon the definition of fighting words
that appears in Chaplinsky-words -which by their very
utterance inflict injury or tend to incite an immediate
breach of the peace.-  Id., at 572.  However, the Minnesota
court was far from clear in identifying the -injur[ies]-
inflicted by the expression that St. Paul sought to regulate.
Indeed, the Minnesota court emphasized (tracking the
language of the ordinance) that -the ordinance censors only
those displays that one knows or should know will create
anger, alarm or resentment based on racial, ethnic, gender
or religious bias.-  In re Welfare of R. A. V., 464 N.W. 2d
507, 510 (1991).  I therefore understand the court to have
ruled that St. Paul may constitutionally prohibit expression
that -by its very utterance- causes -anger, alarm or resent-
ment.-
  Our fighting words cases have made clear, however, that
such generalized reactions are not sufficient to strip
expression of its constitutional protection.  The mere fact
that expressive activity causes hurt feelings, offense, or
resentment does not render the expression unprotected.
See United States v. Eichman, 496 U. S. 310, 319 (1990);
Texas v. Johnson, 491 U. S. 397, 409, 414 (1989); Hustler
Magazine, Inc. v. Falwell, 485 U. S. 46, 55-56 (1988); FCC
v. Pacifica Foundation, 438 U. S. 726, 745 (1978); Hess v.
Indiana, 414 U. S. 105, 107-108 (1973); Cohen v. Califor-
nia, 403 U. S. 15, 20 (1971); Street v. New York, 394 U. S.
576, 592 (1969); Terminiello v. Chicago, 337 U. S. 1 (1949).
  In the First Amendment context, -[c]riminal statutes
must be scrutinized with particular care; those that make
unlawful a substantial amount of constitutionally protected
conduct may be held facially invalid even if they also have
legitimate application.-  Houston v. Hill, 482 U. S. 451, 459
(1987) (citation omitted).  The St. Paul antibias ordinance
is such a law.  Although the ordinance reaches conduct that
is unprotected, it also makes criminal expressive conduct
that causes only hurt feelings, offense, or resentment, and
is protected by the First Amendment.  Cf. Lewis, supra, at
132.  The ordinance is therefore fatally overbroad and
invalid on its face.
                           III
  Today, the Court has disregarded two established
principles of First Amendment law without providing a
coherent replacement theory.  Its decision is an arid,
doctrinaire interpretation, driven by the frequently irresist-
ible impulse of judges to tinker with the First Amendment.
The decision is mischievous at best and will surely confuse
the lower courts.  I join the judgment, but not the folly of
the opinion.