Page:United States Reports 502 OCT. TERM 1991.pdf/286

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128

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

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 (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 (1968), with Texas v. Johnson, 491 U. S., at 406–410; 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 (1989); and whether the regulation is in fact content based or content neutral. See Boos v. Barry, 485 U. S., at 319–321. 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.