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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 90-7675
- --------
- R. A. V., PETITIONER v. CITY OF
- ST. PAUL, MINNESOTA
- on writ of certiorari to the supreme court of
- minnesota
- [June 22, 1992]
-
- Justice Blackmun, concurring in the judgment.
- I regret what the Court has done in this case. The
- majority opinion signals one of two possibilities: it will
- serve as precedent for future cases, or it will not. Either
- result is disheartening.
- In the first instance, by deciding that a State cannot
- regulate speech that causes great harm unless it also
- regulates speech that does not (setting law and logic on
- their heads), the Court seems to abandon the categorical
- approach, and inevitably to relax the level of scrutiny
- applicable to content-based laws. As Justice White points
- out, this weakens the traditional protections of speech. If
- all expressive activity must be accorded the same protec-
- tion, that protection will be scant. The simple reality is
- that the Court will never provide child pornography or
- cigarette advertising the level of protection customarily
- granted political speech. If we are forbidden from categoriz-
- ing, as the Court has done here, we shall reduce protection
- across the board. It is sad that in its effort to reach a
- satisfying result in this case, the Court is willing to weaken
- First Amendment protections.
- In the second instance is the possibility that this case will
- not significantly alter First Amendment jurisprudence, but,
- instead, will be regarded as an aberration-a case where
- the Court manipulated doctrine to strike down an ordinance
- whose premise it opposed, namely, that racial threats and
- verbal assaults are of greater harm than other fighting
- words. I fear that the Court has been distracted from its
- proper mission by the temptation to decide the issue over
- -politically correct speech- and -cultural diversity,- neither
- of which is presented here. If this is the meaning of today's
- opinion, it is perhaps even more regrettable.
- I see no First Amendment values that are compromised
- by a law that prohibits hoodlums from driving minorities
- out of their homes by burning crosses on their lawns, but I
- see great harm in preventing the people of Saint Paul from
- specifically punishing the race-based fighting words that so
- prejudice their community.
- I concur in the judgment, however, because I agree with
- Justice White that this particular ordinance reaches
- beyond fighting words to speech protected by the First
- Amendment.
-