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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 Stevens, with whom Justice White and
Justice Blackmun join as to Part I, concurring in the judg-
ment.
  Conduct that creates special risks or causes special harms
may be prohibited by special rules.  Lighting a fire near an
ammunition dump or a gasoline storage tank is especially
dangerous; such behavior may be punished more severely
than burning trash in a vacant lot.  Threatening someone
because of her race or religious beliefs may cause particu-
larly severe trauma or touch off a riot, and threatening a
high public official may cause substantial social disruption;
such threats may be punished more severely than threats
against someone based on, say, his support of a particular
athletic team.  There are legitimate, reasonable, and
neutral justifications for such special rules.
  This case involves the constitutionality of one such
ordinance.  Because the regulated conduct has some
communicative content-a message of racial, religious or
gender hostility-the ordinance raises two quite different
First Amendment questions.  Is the ordinance -overbroad-
because it prohibits too much speech?  If not, is it
-underbroad- because it does not prohibit enough speech?
  In answering these questions, my colleagues today
wrestle with two broad principles:  first, that certain
-categories of expression [including `fighting words'] are `not
within the area of constitutionally protected speech,'- ante,
at 5 (White, J., concurring in judgment); and second, that
-[c]ontent-based regulations [of expression] are presump-
tively invalid.-  Ante, at 4 (Opinion of the Court).  Although
in past opinions the Court has repeated both of these
maxims, it has-quite rightly-adhered to neither with the
absolutism suggested by my colleagues.  Thus, while I agree
that the St. Paul ordinance is unconstitutionally overbroad
for the reasons stated in Part II of Justice White's opinion,
I write separately to suggest how the allure of absolute
principles has skewed the analysis of both the majority and
concurring opinions.
                            I
  Fifty years ago, the Court articulated a categorical
approach to First Amendment jurisprudence.
-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.-  Chaplinsky v. New Hampshire, 315 U. S.
568, 571-572 (1942).
We have, as Justice White observes, often described such
categories of expression as -not within the area of constitu-
tionally protected speech.-  Roth v. United States, 354 U. S.
476, 483 (1957).
         The Court today revises this categorical approach.  It is
not, the Court rules, that certain -categories- of expression
are -unprotected,- but rather that certain -elements- of
expression are wholly -proscribable.-  To the Court, an
expressive act, like a chemical compound, consists of more
than one element.  Although the act may be regulated
because it contains a proscribable element, it may not be
regulated on the basis of another (nonproscribable) element
it also contains.  Thus, obscene antigovernment speech may
be regulated because it is obscene, but not because it is
antigovernment.  Ante, at 6.  It is this revision of the
categorical approach that allows the Court to assume that
the St. Paul ordinance proscribes only fighting words, while
at the same time concluding that the ordinance is invalid
because it imposes a content-based regulation on expressive
activity.
         As an initial matter, the Court's revision of the categori-
cal approach seems to me something of an adventure in a
doctrinal wonderland, for the concept of -obscene anti-
government- speech is fantastical.  The category of the
obscene is very narrow; to be obscene, expression must be
found by the trier of fact to -appea[l] to the prurient
interest, . . . depic[t] or describ[e], in a patently offensive
way, sexual conduct, [and] taken as a whole, lac[k] serious
literary, artistic, political or scientific value.-  Miller v.
California, 413 U. S. 15, 24 (1973) (emphasis added).
-Obscene antigovernment- speech, then, is a contradiction
in terms: If expression is antigovernment, it does not -lac[k]
serious . . . political . . . value- and cannot be obscene.
         The Court attempts to bolster its argument by likening
its novel analysis to that applied to restrictions on the time,
place, or manner of expression or on expressive conduct.  It
is true that loud speech in favor of the Republican Party
can be regulated because it is loud, but not because it is
pro-Republican; and it is true that the public burning of the
American flag can be regulated because it involves public
burning and not because it involves the flag.  But these
analogies are inapposite.  In each of these examples, the
two elements (e.g., loudness and pro-Republican orienta-
tion) can coexist; in the case of -obscene antigovernment-
speech, however, the presence of one element (-obscenity-)
by definition means the absence of the other.  To my mind,
it is unwise and unsound to craft a new doctrine based on
such highly speculative hypotheticals.
         I am, however, even more troubled by the second step of
the Court's analysis-namely, its conclusion that the St.
Paul ordinance is an unconstitutional content-based
regulation of speech.  Drawing on broadly worded dicta, the
Court establishes a near-absolute ban on content-based
regulations of expression and holds that the First Amend-
ment prohibits the regulation of fighting words by subject
matter.  Thus, while the Court rejects the -all-or-nothing-at-
all- nature of the categorical approach, ante, at 6, it
promptly embraces an absolutism of its own:  within a
particular -proscribable- category of expression, the Court
holds, a government must either proscribe all speech or no
speech at all.  This aspect of the Court's ruling fundamen-
tally misunderstands the role and constitutional status of
content-based regulations on speech, conflicts with the very
nature of First Amendment jurisprudence, and disrupts
well-settled principles of First Amendment law.
         Although the Court has, on occasion, declared that
content-based regulations of speech are -never permitted,-
Police Dept. of Chicago v. Mosley, 408 U. S. 92, 99 (1972),
such claims are overstated.  Indeed, in Mosley itself, the
Court indicated that Chicago's selective proscription of
nonlabor picketing was not per se unconstitutional, but
rather could be upheld if the City demonstrated that
nonlabor picketing was -clearly more disruptive than [labor]
picketing.-  Id., at 100.  Contrary to the broad dicta in
Mosley and elsewhere, our decisions demonstrate that
content-based distinctions, far from being presumptively
invalid, are an inevitable and indispensable aspect of a
coherent understanding of the First Amendment.
         This is true at every level of First Amendment law.  In
broadest terms, our entire First Amendment jurisprudence
creates a regime based on the content of speech.  The scope
of the First Amendment is determined by the content of
expressive activity:  Although the First Amendment broadly
protects -speech,- it does not protect the right to -fix prices,
breach contracts, make false warranties, place bets with
bookies, threaten, [or] extort.-  Schauer, Categories and the
First Amendment:  A Play in Three Acts, 34 Vand. L. Rev.
265, 270 (1981).  Whether an agreement among competitors
is a violation of the Sherman Act or protected activity under
the Noerr-Pennington doctrine hinges upon the content of
the agreement.  Similarly, -the line between permissible
advocacy and impermissible incitation to crime or violence
depends, not merely on the setting in which the speech
occurs, but also on exactly what the speaker had to say.-
Young v. American Mini Theatres, Inc., 427 U. S. 50, 66
(1976) (plurality opinion); see also Musser v. Utah, 333
U. S. 95, 100-103 (1948) (Rutledge, J., dissenting).
         Likewise, whether speech falls within one of the catego-
ries of -unprotected- or -proscribable- expression is deter-
mined, in part, by its content.  Whether a magazine is
obscene, a gesture a fighting word, or a photograph child
pornography is determined, in part, by its content.  Even
within categories of protected expression, the First Amend-
ment status of speech is fixed by its content.  New York
Times Co. v. Sullivan, 376 U. S. 254 (1964), and Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749
(1985), establish that the level of protection given to speech
depends upon its subject matter: speech about public
officials or matters of public concern receives greater
protection than speech about other topics.  It can, therefore,
scarcely be said that the regulation of expressive activity
cannot be predicated on its content: much of our First
Amendment jurisprudence is premised on the assumption
that content makes a difference.
         Consistent with this general premise, we have frequently
upheld content-based regulations of speech.  For example,
in Young v. American Mini Theatres, the Court upheld
zoning ordinances that regulated movie theaters based on
the content of the films shown.  In FCC v. Pacifica Founda-
tion, 438 U. S. 726 (1978) (plurality opinion), we upheld a
restriction on the broadcast of specific indecent words.  In
Lehman v. City of Shaker Heights, 418 U. S. 298 (1974)
(plurality opinion), we upheld a city law that permitted
commercial advertising, but prohibited political advertising,
on city buses.  In Broadrick v. Oklahoma, 413 U. S. 601
(1973), we upheld a state law that restricted the speech of
state employees, but only as concerned partisan political
matters.  We have long recognized the power of the Federal
Trade Commission to regulate misleading advertising and
labeling, see, e.g., Jacob Siegel Co. v. FTC, 327 U. S. 608
(1946), and the National Labor Relations Board's power to
regulate an employer's election-related speech on the basis
of its content.  See, e.g., NLRB v. Gissel Packing Co., 395
U. S. 575, 616-618 (1969).  It is also beyond question that
the Government may choose to limit advertisements for
cigarettes, see 15 U. S. C. 1331-1340, but not for cigars;
choose to regulate airline advertising, see Morales v. Trans
World Airlines, 504 U. S. ___ (1992), but not bus advertis-
ing; or choose to monitor solicitation by lawyers, see
Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), but
not by doctors.
         All of these cases involved the selective regulation of
speech based on content-precisely the sort of regulation
the Court invalidates today.  Such selective regulations are
unavoidably content based, but they are not, in my opinion,
-presumptively invalid.-  As these many decisions and
examples demonstrate, the prohibition on content-based
regulations is not nearly as total as the Mosley dictum
suggests.
         Disregarding this vast body of case law, the Court today
goes beyond even the overstatement in Mosley and applies
the prohibition on content-based regulation to speech that
the Court had until today considered wholly -unprotected-
by the First Amendment-namely, fighting words.  This
new absolutism in the prohibition of content-based regula-
tions severely contorts the fabric of settled First Amend-
ment law.
         Our First Amendment decisions have created a rough
hierarchy in the constitutional protection of speech.  Core
political speech occupies the highest, most protected
position; commercial speech and nonobscene, sexually
explicit speech are regarded as a sort of second-class
expression; obscenity and fighting words receive the least
protection of all.  Assuming that the Court is correct that
this last class of speech is not wholly -unprotected,- it
certainly does not follow that fighting words and obscenity
receive the same sort of protection afforded core political
speech.  Yet in ruling that proscribable speech cannot be
regulated based on subject matter, the Court does just
that.  Perversely, this gives fighting words greater protec-
tion than is afforded commercial speech.  If Congress can
prohibit false advertising directed at airline passengers
without also prohibiting false advertising directed at bus
passengers and if a city can prohibit political advertise-
ments in its buses while allowing other advertisements, it
is ironic to hold that a city cannot regulate fighting words
based on -race, color, creed, religion or gender- while
leaving unregulated fighting words based on -union
membership or homosexuality.-  Ante, at 13.  The Court
today turns First Amendment law on its head:  Communi-
cation that was once entirely unprotected (and that still can
be wholly proscribed) is now entitled to greater protection
than commercial speech-and possibly greater protection
than core political speech.  See Burson v. Freeman, 504
U. S. ___, ___ (1992).
         Perhaps because the Court recognizes these perversities,
it quickly offers some ad hoc limitations on its newly
extended prohibition on content-based regulations.  First,
the Court states that a content-based regulation is valid
-[w]hen the content discrimination is based upon the very
reason the entire class of speech. . .is proscribable.-  In a
pivotal passage, the Court writes
-the Federal Government can criminalize only those
physical threats that are directed against the Presi-
dent, see 18 U. S. C. 871-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. . .President.-  Ante,
at 10.
As I understand this opaque passage, Congress may choose
from the set of unprotected speech (all threats) to proscribe
only a subset (threats against the President) because those
threats are particularly likely to cause -fear of violence,-
-disruption,- and actual -violence.-
         Precisely this same reasoning, however, compels the
conclusion that St. Paul's ordinance is constitutional.  Just
as Congress may determine that threats against the
President entail more severe consequences than other
threats, so St. Paul's City Council may determine that
threats based on the target's race, religion, or gender cause
more severe harm to both the target and to society than
other threats.  This latter judgment-that harms caused by
racial, religious, and gender-based invective are qualitative-
ly different from that caused by other fighting
words-seems to me eminently reasonable and realistic.
         Next, the Court recognizes that a State may regulate
advertising in one industry but not another because -the
risk of fraud (one of the characteristics that justifies
depriving [commercial speech] of full First Amendment
protection . . .)- in the regulated industry is -greater- than
in other industries.  Ante, at 10.  Again, the same reasoning
demonstrates the constitutionality of St. Paul's ordinance.
-[O]ne of the characteristics that justifies- the constitutional
status of fighting words is that such words -by their very
utterance inflict injury or tend to incite an immediate
breach of the peace.-  Chaplinsky, 315 U. S., at 572.
Certainly a legislature that may determine that the risk of
fraud is greater in the legal trade than in the medical trade
may determine that the risk of injury or breach of peace
created by race-based threats is greater than that created
by other threats.
         Similarly, it is impossible to reconcile the Court's analysis
of the St. Paul ordinance with its recognition that ``a
prohibition of fighting words that are directed at certain
persons or groups . . . would be facially valid.''  Ante, at 13
(emphasis deleted).  A selective proscription of unprotected
expression designed to protect ``certain persons or groups''
(for example, a law proscribing threats directed at the
elderly) would be constitutional if it were based on a
legitimate determination that the harm created by the
regulated expression differs from that created by the
unregulated expression (that is, if the elderly are more
severely injured by threats than are the nonelderly).  Such
selective protection is no different from a law prohibiting
minors (and only minors) from obtaining obscene publica-
tions.  See Ginsberg v. New York, 390 U. S. 629 (1968).  St.
Paul has determined-reasonably in my judgment-that
fighting-word injuries ``based on race, color, creed, religion
or gender'' are qualitatively different and more severe than
fighting-word injuries based on other characteristics.
Whether the selective proscription of proscribable speech is
defined by the protected target (-certain persons or groups-)
or the basis of the harm (injuries -based on race, color,
creed, religion or gender-) makes no constitutional differ-
ence: what matters is whether the legislature's selection is
based on a legitimate, neutral, and reasonable distinction.
         In sum, the central premise of the Court's ruling-that
-[c]ontent-based regulations are presumptively inval-
id--has simplistic appeal, but lacks support in our First
Amendment jurisprudence.  To make matters worse, the
Court today extends this overstated claim to reach catego-
ries of hitherto unprotected speech and, in doing so, wreaks
havoc in an area of settled law.  Finally, although the Court
recognizes exceptions to its new principle, those exceptions
undermine its very conclusion that the St. Paul ordinance
is unconstitutional.  Stated directly, the majority's position
cannot withstand scrutiny.
                                       II
         Although I agree with much of Justice White's analysis,
I do not join Part I-A of his opinion because I have reserva-
tions about the -categorical approach- to the First Amend-
ment.  These concerns, which I have noted on other
occasions, see, e.g., New York v. Ferber, 458 U. S. 747, 778
(1982) (Stevens, J., concurring in judgment), lead me to
find Justice White's response to the Court's analysis
unsatisfying.
         Admittedly, the categorical approach to the First Amend-
ment has some appeal: either expression is protected or it
is not-the categories create safe harbors for governments
and speakers alike.  But this approach sacrifices subtlety
for clarity and is, I am convinced, ultimately unsound.  As
an initial matter, the concept of -categories- fits poorly with
the complex reality of expression.  Few dividing lines in
First Amendment law are straight and unwavering, and
efforts at categorization inevitably give rise only to fuzzy
boundaries.  Our definitions of ``obscenity,'' see, e.g., Marks
v. United States, 430 U. S. 188, 198 (1977) (Stevens, J.,
concurring in part and dissenting in part), and ``public
forum,'' see, e.g., United States Postal Service v. Council of
Greenburgh Civic Assns., 453 U. S. 114, 126-131 (1981); id.,
at 136-140 (Brennan, J., concurring in judgment); id., at
147-151 (Marshall, J., dissenting); 152-154 (Stevens, J.,
dissenting) (all debating the definition of -public forum-),
illustrate this all too well.  The quest for doctrinal certainty
through the definition of categories and subcategories is, in
my opinion, destined to fail.
         Moreover, the categorical approach does not take serious-
ly the importance of context.  The meaning of any expres-
sion and the legitimacy of its regulation can only be
determined in context.  Whether, for example, a picture or
a sentence is obscene cannot be judged in the abstract, but
rather only in the context of its setting, its use, and its
audience.  Similarly, although legislatures may freely
regulate most nonobscene child pornography, such pornog-
raphy that is part of -a serious work of art, a documentary
on behavioral problems, or a medical or psychiatric teaching
device,- may be entitled to constitutional protection; the
``question whether a specific act of communication is
protected by the First Amendment always requires some
consideration of both its content and its context.''  Ferber,
458 U. S. at 778 (Stevens, J., concurring in judgment); see
also Smith v. United States, 431 U. S. 291, 311-321 (1977)
(Stevens, J., dissenting).  The categorical approach sweeps
too broadly when it declares that all such expression is
beyond the protection of the First Amendment.
         Perhaps sensing the limits of such an all-or-nothing
approach, the Court has applied its analysis less categori-
cally than its doctrinal statements suggest.  The Court has
recognized intermediate categories of speech (for example,
for indecent nonobscene speech and commercial speech) and
geographic categories of speech (public fora, limited public
fora, nonpublic fora) entitled to varying levels of protection.
The Court has also stringently delimited the categories of
unprotected speech.  While we once declared that -[l]ibelous
utterances [are] not . . . within the area of constitutionally
protected speech, Beauharnais v. Illinois, 343 U. S. 250, 266
(1952), our rulings in New York Times Co. v. Sullivan, 376
U. S. 253 (1964); Gertz v. Robert Welch, Inc., 418 U. S. 323
(1974), and Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., 472 U. S. 749 (1985), have substantially qualified this
broad claim.  Similarly, we have consistently construed the
-fighting words- exception set forth in Chaplinsky narrowly.
See, e.g., Houston v. Hill, 482 U. S. 451 (1987); Lewis v.
City of New Orleans, 415 U. S. 130 (1974); Cohen v.
California, 403 U. S. 15 (1971).  In the case of commercial
speech, our ruling that -the Constitution imposes no . . .
restraint on government [regulation] as respects purely
commercial advertising,- Valentine v. Chrestensen, 316 U. S.
52, 54 (1942), was expressly repudiated in Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U. S. 748 (1976).  In short, the history of the categorical
approach is largely the history of narrowing the categories
of unprotected speech.
         This evolution, I believe, indicates that the categorical
approach is unworkable and the quest for absolute catego-
ries of -protected- and -unprotected- speech ultimately
futile.  My analysis of the faults and limits of this approach
persuades me that the categorical approach presented in
Part I-A of Justice White's opinion is not an adequate
response to the novel -underbreadth- analysis the Court
sets forth today.
                                       III
         As the foregoing suggests, I disagree with both the
Court's and part of Justice White's analysis of the consti-
tutionality St. Paul ordinance.  Unlike the Court, I do not
believe that all content-based regulations are equally infirm
and presumptively invalid; unlike Justice White, I do not
believe that fighting words are wholly unprotected by the
First Amendment.  To the contrary, I believe our decisions
establish a more complex and subtle analysis, one that
considers the content and context of the regulated speech,
and the nature and scope of the restriction on speech.
Applying this analysis and assuming arguendo (as the
Court does) that the St. Paul ordinance is not overbroad, I
conclude that such a selective, subject-matter regulation on
proscribable speech is constitutional.
         Not all content-based regulations are alike; our decisions
clearly recognize that some content-based restrictions raise
more constitutional questions than others.  Although the
Court's analysis of content-based regulations cannot be
reduced to a simple formula, we have considered a number
of factors in determining the validity of such regulations.
         First, as suggested above, the scope of protection provided
expressive activity depends in part upon its content and
character.  We have long recognized that when government
regulates political speech or -the expression of editorial
opinion on matters of public importance,- FCC v. League of
Women Voters of California, 468 U. S. 364, 375-376 (1984),
-First Amendment protectio[n] is `at its zenith.'-  Meyer v.
Grant, 486 U. S. 414, 425 (1988).  In comparison, we have
recognized that -commercial speech receives a limited form
of First Amendment protection,- Posadas de Puerto Rico
Associates v. Tourism Co. of Puerto Rico, 478 U. S. 328, 340
(1986), and that -society's interest in protecting [sexually
explicit films] is of a wholly different, and lesser magnitude
than [its] interest in untrammeled political debate.-  Young
v. American Mini Theatres, 427 U. S., at 70; see also FCC
v. Pacifica Foundation, 438 U. S. 726 (1978).  The character
of expressive activity also weighs in our consideration of its
constitutional status.  As we have frequently noted, -[t]he
government generally has a freer hand in restricting
expressive conduct than it has in restricting the written or
spoken word.-  Texas v. Johnson, 491 U. S. 397, 406 (1989);
see also United States v. O'Brien, 391 U. S. 367 (1968).
         The protection afforded expression turns as well on the
context of the regulated speech.  We have noted, for
example, that -[a]ny assessment of the precise scope of
employer expression, of course, must be made in the context
of its labor relations setting . . . [and] must take into
account the economic dependence of the employees on their
employers.-  NLRB v. Gissel Packing Co., 395 U. S., at 617.
Similarly, the distinctive character of a university environ-
ment, see Widmar v. Vincent, 454 U. S. 263, 277-280 (1981)
(Stevens, J., concurring in judgment), or a secondary school
environment, see Hazelwood School Dist. v. Kuhlmeier, 484
U. S. 260 (1988), influences our First Amendment analysis.
The same is true of the presence of a -`captive audience[,
one] there as a matter of necessity, not of choice.'-  Lehman
v. City of Shaker Heights, 418 U. S., at 302 (citation
omitted).  Perhaps the most familiar embodiment of the
relevance of context is our -fora- jurisprudence, differentiat-
ing the levels of protection afforded speech in different
locations.
         The nature of a contested restriction of speech also
informs our evaluation of its constitutionality.  Thus, for
example, -[a]ny system of prior restraints of expression
comes to this Court bearing a heavy presumption against
its constitutional validity.-  Bantam Books, Inc. v. Sullivan,
372 U. S. 58, 70 (1963).  More particularly to the matter of
content-based regulations, we have implicitly distinguished
between restrictions on expression based on subject matter
and restrictions based on viewpoint, indicating that the
latter are particularly pernicious.  -If there is a bedrock
principle underlying the First Amendment, it is that the
Government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable.-  Texas v. Johnson, 491 U. S., at 414.  -View-
point discrimination is censorship in its purest form,- Perry
Education Assn. v. Perry Local Educators' Assn., 460 U. S.
37, 62 (1983) (Brennan, J., dissenting), and requires
particular scrutiny, in part because such regulation often
indicates a legislative effort to skew public debate on an
issue.  See, e.g., Schacht v. United States, 398 U. S. 58, 63
(1970).  -Especially where . . . the legislature's suppression
of speech suggests an attempt to give one side of a debat-
able public question an advantage in expressing its views
to the people, the First Amendment is plainly offended.-
First National Bank of Boston v. Bellotti, 435 U. S. 765,
785-786 (1978).  Thus, although a regulation that on its
face regulates speech by subject matter may in some
instances effectively suppress particular viewpoints, see,
e.g., Consolidated Edison Co. of N.Y. v. Public Service
Comm'n of N.Y., 447 U. S. 530, 546-547 (1980) (Stevens,
J., concurring in judgment), in general, viewpoint-based
restrictions on expression require greater scrutiny than
subject-matter based restrictions.
         Finally, in considering the validity of content-based
regulations we have also looked more broadly at the scope
of the restrictions.  For example, in Young v. American Mini
Theatres, 427 U. S., at 71, we found significant the fact that
-what [was] ultimately at stake [was] nothing more than a
limitation on the place where adult films may be exhibited.-
Similarly, in FCC v. Pacifica Foundation, the Court
emphasized two dimensions of the limited scope of the FCC
ruling.  First, the ruling concerned only broadcast material
which presents particular problems because it -confronts
the citizen . . . in the privacy of the home-; second, the
ruling was not a complete ban on the use of selected
offensive words, but rather merely a limitation on the times
such speech could be broadcast.  438 U. S., at 748-750.
         All of these factors play some role in our evaluation of
content-based regulations on expression.  Such a multi-
faceted analysis cannot be conflated into two dimensions.
Whatever the allure of absolute doctrines, it is just too
simple to declare expression -protected- or -unprotected- or
to proclaim a regulation -content-based- or -content-
neutral.-
         In applying this analysis to the St. Paul ordinance, I
assume arguendo-as the Court does-that the ordinance
regulates only fighting words and therefore is not over-
broad.  Looking to the content and character of the regulat-
ed activity, two things are clear.  First, by hypothesis the
ordinance bars only low-value speech, namely, fighting
words.  By definition such expression constitutes -no
essential part of any exposition of ideas, and [is] of such
slight social value as a step to truth that any benefit that
may be derived from [it] is clearly outweighed by the social
interest in order and morality.''  Chaplinsky, 315 U. S., at
572.  Second, the ordinance regulates -expressive conduct
[rather] than . . . the written or spoken word.-  Texas v.
Johnson, 491 U. S., at 406.
         Looking to the context of the regulated activity, it is
again significant that the statute (by hypothesis) regulates
only fighting words.  Whether words are fighting words is
determined in part by their context.  Fighting words are not
words that merely cause offense; fighting words must be
directed at individuals so as to -by their very utterance
inflict injury.-  By hypothesis, then, the St. Paul ordinance
restricts speech in confrontational and potentially violent
situations.  The case at hand is illustrative.  The cross-
burning in this case-directed as it was to a single African-
American family trapped in their home-was nothing more
than a crude form of physical intimidation.  That this cross-
burning sends a message of racial hostility does not
automatically endow it with complete constitutional
protection.
         Significantly, the St. Paul ordinance regulates speech not
on the basis of its subject matter or the viewpoint ex-
pressed, but rather on the basis of the harm the speech
causes.  In this regard, the Court fundamentally misreads
the St. Paul ordinance.  The Court describes the St. Paul
ordinance as regulating expression ``addressed to one of
[several] specified disfavored topics,'' ante, at 13 (emphasis
supplied), as policing ``disfavored subjects,'' ibid. (emphasis
supplied), and as ``prohibit[ing] . . . speech solely on the
basis of the subjects the speech addresses.''  Ante, at 3
(emphasis supplied).  Contrary to the Court's suggestion,
the ordinance regulates only a subcategory of expression
that causes injuries based on ``race, color, creed, religion or
gender,'' not a subcategory that involves discussions that
concern those characteristics.  The ordinance, as construed
by the Court, criminalizes expression that ``one knows . . .
[by its very utterance inflicts injury on] others on the basis
of race, color, creed, religion or gender.''  In this regard, the
ordinance resembles the child pornography law at issue in
Ferber, which in effect singled out child pornography
because those publications caused far greater harms than
pornography involving adults.
         Moreover, even if the St. Paul ordinance did regulate
fighting words based on its subject matter, such a regula-
tion would, in my opinion, be constitutional.  As noted
above, subject-matter based regulations on commercial
speech are widespread and largely unproblematic.  As we
have long recognized, subject-matter regulations generally
do not raise the same concerns of government censorship
and the distortion of public discourse presented by view-
point regulations.  Thus, in upholding subject-matter
regulations we have carefully noted that viewpoint-based
discrimination was not implicated.  See Young v. American
Mini Theatres, 427 U. S., at 67 (emphasizing -the need for
absolute neutrality by the government,- and observing that
the contested statute was not animated by -hostility for the
point of view- of the theatres); FCC v. Pacifica Foundation,
438 U. S., at 745-746 (stressing that -government must
remain neutral in the marketplace of ideas-); see also FCC
v. League of Women's Voters of California, 468 U. S., at
412-417 (Stevens, J., dissenting); Metromedia, Inc. v. City
of San Diego, 453 U. S. 490, 554-555 (1981) (Stevens, J.,
dissenting in part).  Indeed, some subject-matter restric-
tions are a functional necessity in contemporary gover-
nance:  -The First Amendment does not require States to
regulate for problems that do not exist.-  Burson v. Free-
man, 504 U. S. ___, ___ (1992) (slip op., at 16).
         Contrary to the suggestion of the majority, the St. Paul
ordinance does not regulate expression based on viewpoint.
The Court contends that the ordinance requires proponents
of racial intolerance to -follow the Marquis of Queensbury
Rules- while allowing advocates of racial tolerance to -fight
freestyle.-  The law does no such thing.
         The Court writes:
-One could hold up a sign saying, for example, that all
`anti-Catholic bigots' are misbegotten; but not that all
`papists' are, for that would insult and provoke violence
`on the basis of religion.'-  Ante, at 13.
This may be true, but it hardly proves the Court's point.
The Court's reasoning is asymmetrical.  The response to a
sign saying that -all [religious] bigots are misbegotten- is a
sign saying that -all advocates of religious tolerance are
misbegotten.-  Assuming such signs could be fighting words
(which seems to me extremely unlikely), neither sign would
be banned by the ordinance for the attacks were not -based
on . . . religion- but rather on one's beliefs about tolerance.
Conversely (and again assuming such signs are fighting
words), just as the ordinance would prohibit a Muslim from
hoisting a sign claiming that all Catholics were misbegot-
ten, so the ordinance would bar a Catholic from hoisting a
similar sign attacking Muslims.
         The St. Paul ordinance is evenhanded.  In a battle
between advocates of tolerance and advocates of intolerance,
the ordinance does not prevent either side from hurling
fighting words at the other on the basis of their conflicting
ideas, but it does bar both sides from hurling such words on
the basis of the target's -race, color, creed, religion or
gender.-  To extend the Court's pugilistic metaphor, the St.
Paul ordinance simply bans punches -below the belt--by
either party.  It does not, therefore, favor one side of any
debate.
         Finally, it is noteworthy that the St. Paul ordinance is, as
construed by the Court today, quite narrow.  The St. Paul
ordinance does not ban all -hate speech,- nor does it ban,
say, all cross-burnings or all swastika displays.  Rather it
only bans a subcategory of the already narrow category of
fighting words.  Such a limited ordinance leaves open and
protected a vast range of expression on the subjects of
racial, religious, and gender equality.  As construed by the
Court today, the ordinance certainly does not -`raise the
specter that the Government may effectively drive certain
ideas or viewpoints from the marketplace.'-  Ante, at 9.
Petitioner is free to burn a cross to announce a rally or to
express his views about racial supremacy, he may do so on
private property or public land, at day or at night, so long
as the burning is not so threatening and so directed at an
individual as to -by its very [execution] inflict injury.-  Such
a limited proscription scarcely offends the First Amend-
ment.
         In sum, the St. Paul ordinance (as construed by the
Court) regulates expressive activity that is wholly pro-
scribable and does so not on the basis of viewpoint, but
rather in recognition of the different harms caused by such
activity.  Taken together, these several considerations
persuade me that the St. Paul ordinance is not an unconsti-
tutional content-based regulation of speech.  Thus, were the
ordinance not overbroad, I would vote to uphold it.