Page:United States Reports 502 OCT. TERM 1991.pdf/282

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SIMON & SCHUSTER, INC. v. MEMBERS OF N. Y. STATE CRIME VICTIMS BD. Kennedy, J., concurring in judgment

say so. Most other States have similar legislation and deserve from this Court all the guidance it can render in this very sensitive area. 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 (1987)). That test or formulation derives from our equal protection jurisprudence, see, e. g., Wygant v. Jackson Board of Ed., 476 U. S. 267, 273–274 (1986) (opinion of Powell, J.); Hirabayashi v. United States, 320 U. S. 81, 100 (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 contentbased restriction, for resort to the test might be read as a