Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board/Concurrence Kennedy

by Anthony Kennedy

Justice KENNEDY, concurring in the judgment.

The New York statute we now consider imposes severe restrictions on authors and publishers, using as its sole criterion the content of what is written. The regulated content has the full protection of the First Amendment and this, I submit, is itself a full and sufficient reason for holding the statute unconstitutional. In my view it is both unnecessary and incorrect to ask whether the State can show that the statute " 'is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.' " Ante, at 118 (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231, 107 S.Ct. 1722, 1729, 95 L.Ed.2d 209 (1987)). That test or formulation derives from our equal protection jurisprudence, see, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267, 273-274, 106 S.Ct. 1842, 1846-1847, 90 L.Ed.2d 260 (1986) (opinion of POWELL, J.); Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943), and has no real or legitimate place when the Court considers the straightforward question whether the State may enact a burdensome restriction of speech based on content only, apart from any considerations of time, place, and manner or the use of public forums.

Here a law is directed to speech alone where the speech in question is not obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment of some other constitutional right, not an incitement to lawless action, and not calculated or likely to bring about imminent harm the State has the substantive power to prevent. No further inquiry is necessary to reject the State's argument that the statute should be upheld.

Borrowing the compelling interest and narrow tailoring analysis is ill-advised when all that is at issue is a content-based restriction, for resort to the test might be read as a concession that States may censor speech whenever they believe there is a compelling justification for doing so. Our precedents and traditions allow no such inference.

This said, it must be acknowledged that the compelling interest inquiry has found its way into our First Amendment jurisprudence of late, even where the sole question is, or ought to be, whether the restriction is in fact content-based. Although the notion that protected speech may be restricted on the basis of content if the restriction survives what has sometimes been termed " 'the most exacting scrutiny,' " Texas v. Johnson, 491 U.S. 397, 412, 109 S.Ct. 2533, 2543, 105 L.Ed.2d 342 (1989), may seem familiar, the Court appears to have adopted this formulation in First Amendment cases by accident rather than as the result of a considered judgment. In Johnson, for example, we cited Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988), as support for the approach. Boos v. Barry in turn cited Perry Education Assn v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983), for the proposition that to justify a content-based restriction on political speech in a public forum, the State must show that "the 'regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.' " Boos v. Barry, supra, 485 U.S., at 320, 108 S.Ct., at 1163. Turning to the appropriate page in Perry, we discover that the statement was supported with a citation of Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290-2291, 65 L.Ed.2d 263 (1980). Looking at last to Carey, it turns out the Court was making a statement about equal protection: "When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized." Id., at 461-462, 100 S.Ct., at 2290-2291. Thus was a principle of equal protection transformed into one about the government's power to regulate the content of speech in a public forum, and from this to a more general First Amendment statement about the government's power to regulate the content of speech.

The employment of the compelling interest test in the present context is in no way justified by my colleagues' citation of Arkansas Writers' Project v. Ragland. Ante, at 118. True, both Ragland and the case on which it relied, Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983), recite either the compelling interest test or a close variant, see Ragland, supra, 481 U.S., at 231, 107 S.Ct., at 1728-1729; Minneapolis Star, supra, 460 U.S., at 585, 103 S.Ct., at 1371-1372, but neither is a case in which the State regulates speech for its content.

There are, of course, other cases, some even predating the slow metamorphosis of Carey v. Brown's equal protection analysis into First Amendment law, which apply the compelling interest test, but these authorities also address issues other than content censorship. See Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637-638, 46 L.Ed.2d 659 (1976) (upholding content-neutral limitations on financial contributions to campaigns for federal office and striking down content-neutral limitations on financial expenditures for such campaigns); Cousins v. Wigoda, 419 U.S. 477, 489, 95 S.Ct. 541, 548-549, 42 L.Ed.2d 595 (1975) (content-neutral restriction on freedom of association); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340-341, 9 L.Ed.2d 405 (1963) (content-neutral prohibition on solicitation by lawyers); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960) (content-neutral statute compelling teachers in state-supported schools or colleges to disclose all organizations to which they belonged or contributed).

The inapplicability of the compelling interest test to content-based restrictions on speech is demonstrated by our repeated statement that "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). See also Arkansas Writers' Project, 481 U.S., at 229-230, 107 S.Ct., at 1727-1728 (citing Mosley ); Regan v. Time, Inc., 468 U.S. 641, 648-649, 104 S.Ct. 3262, 3266-3267, 82 L.Ed.2d 487 (1984) ("Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment"). These general statements about the government's lack of power to engage in content-discrimination reflect a surer basis for protecting speech than does the test used by the Court today.

There are a few legal categories in which content-based regulation has been permitted or at least contemplated. These include obscenity, see, e.g., Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), defamation, see, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), incitement, see, e.g., Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), or situations presenting some grave and imminent danger the government has the power to prevent, see, e.g., Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). These are, however, historic and traditional categories long familiar to the bar, although with respect to the last category it is most difficult for the government to prevail. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). While it cannot be said with certainty that the foregoing types of expression are or will remain the only ones that are without First Amendment protection, as evidenced by the proscription of some visual depictions of sexual conduct by children, see New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), the use of these traditional legal categories is preferable to the sort of ad hoc balancing that the Court henceforth must perform in every case if the analysis here used becomes our standard test.

As a practical matter, perhaps we will interpret the compelling interest test in cases involving content regulation so that the results become parallel to the historic categories I have discussed, although an enterprise such as today's tends not to remain pro forma but to take on a life of its own. When we leave open the possibility that various sorts of content regulations are appropriate, we discount the value of our precedents and invite experiments that in fact present clear violations of the First Amendment, as is true in the case before us.

To forgo the compelling interest test in cases involving direct content-based burdens on speech would not, of course, eliminate the need for difficult judgments respecting First Amendment issues. Among the questions we cannot avoid the necessity of deciding are: whether the restricted expression falls within one of the unprotected categories discussed above, supra, at 127; whether some other constitutional right is impaired, see Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); whether, in the case of a regulation of activity which combines expressive with nonexpressive elements, the regulation aims at the activity or the expression, compare United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) with Texas v. Johnson, 491 U.S., at 406-410, 109 S.Ct., at 2540-2542; whether the regulation restricts speech itself or only the time, place, or manner of speech, see Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); and whether the regulation is in fact content-based or content-neutral. See Boos v. Barry, 485 U.S., at 319-321, 108 S.Ct., at 1162-1163. However difficult the lines may be to draw in some cases, here the answer to each of these questions is clear.

The case before us presents the opportunity to adhere to a surer test for content-based cases and to avoid using an unnecessary formulation, one with the capacity to weaken central protections of the First Amendment. I would recognize this opportunity to confirm our past holdings and to rule that the New York statute amounts to raw censorship based on content, censorship forbidden by the text of the First Amendment and well-settled principles protecting speech and the press. That ought to end the matter.

With these observations, I concur in the judgment of the Court holding the statute invalid.

Notes