Page:United States Reports 502 OCT. TERM 1991.pdf/283

 502us1$11J 08-21-96 15:26:31 PAGES OPINPGT

Cite as: 502 U. S. 105 (1991)

125

Kennedy, J., concurring in judgment

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 (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, 321 (1988), as support for the approach. Boos v. Barry in turn cited Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (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, at 321. 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 (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. 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.