– Stevens’ concurrence
a. Stevens argued that correct constitutional doctrine does not
forbid content-based regulations anywhere near as broadly as the
majority said that it does. “Content-based distinctions, far from
being presumptively invalid, are an inevitable and indispensable
aspect of a coherent understanding of the First Amendment.” For
instance, 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.” The majority’s approach, paradoxically, gave fighting words
greater protection than was afforded to traditionally-protected
categories such as commercial speech. For instance, the Court had
previously allowed a city to prohibit political advertisements in its
buses while allowing other advertisements, yet the city could not now
prohibit fighting words based on race or religion while leaving
unregulated fighting words based on, say, union membership or
1. Dave says this goes to the heart of the disagreement between the
majority and the dissent. Stevens and White think St. Paul can
determine what specific threats (i.e., gender, racial, etc.) are
illegal—that is, they think St. Paul can make content-based
distinctions—while Scalia does not.
b. Stevens agrees with White that the ordinance was overbroad.
But if it were not overbroad, Stevens would have voted to uphold it on the
grounds that it was an “evenhanded” method of banning certain
fighting words. Specifically, it is “evenhanded” in that it bars
both sides of an argument from hurling words on the basis of the
target’s “race, color, creed, religion or gender,” and does not favor
any one side of the debate.
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