Page:United States Reports 502 OCT. TERM 1991.pdf/285

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

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

127

Kennedy, J., concurring in judgment

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 (1973), defamation, see, e. g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749 (1985), incitement, see, e. g., Brandenburg v. Ohio, 395 U. S. 444 (1969), or situations presenting some grave and imminent danger the government has the power to prevent, see, e. g., Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (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 (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 (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,