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STEVENS, J., dissenting

great a potential interference with orderly access to the polls as does the distribution of campaign leaflets, the display of campaign posters, or the wearing of campaign buttons. This discriminatory feature of the statute severely undercuts the credibility of its purported law-and-order justification.

Tennessee's content-based discrimination is particularly problematic because such a regulation will inevitably favor certain groups of candidates. As the testimony in this case illustrates, several groups of candidates rely heavily on last-minute campaigning. See App. 22–23. Candidates with fewer resources, candidates for lower visibility offices, and “grassroots” candidates benefit disproportionately from last-minute campaigning near the polling place. See Note, Defoliating the Grassroots: Election Day Restrictions on Political Speech, 77 Geo. L. J. 2137, 2158–2160 (1989) (collecting authorities).

Although the plurality recognizes that the Tennessee statute is content based, see ante, at 197–198, it does not inquire into whether that discrimination itself is related to any purported state interest. To the contrary, the plurality makes the surprising and unsupported claim that the selective regulation of protected speech is justified because, "[t]he First Amendment does not require States to regulate for problems that do not exist." Ante, at 207. Yet earlier this Term, the Court rejected an asserted state interest because that interest “ha[d] nothing to do with the State's” content-based distinctions among expressive activities. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 120 (1991); see also Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 231 (1987). Similarly in Carey v. Brown, 447 U. S. 455, 464-465 (1980), the Court acknowledged Illinois' interest in “residential privacy” but invalidated that State's ban on picketing because its distinction between labor and nonlabor picketing could not be “justified by reference to the State's interest in maintaining domestic tranquility.”

STEVENS, J., dissenting

In this case the same is true: Tennessee's differential treatment of campaign speech furthers no asserted state interest. Access to, and order around, the polls would be just as threatened by the congregation of citizens concerned about a local environmental issue not on the ballot as by the congregation of citizens urging election of their favored candidate. Similarly, assuming that disorder immediately outside the polling place could lead to the commission of errors or the perpetration of fraud, such disorder could just as easily be caused by a religious dispute sparked by a colporteur as by a campaign-related dispute sparked by a campaign worker. In short, Tennessee has failed to point to any legitimate interest that would justify its selective regulation of campaign-related expression.

III Although the plurality purports to apply “exacting scrutiny,” its three marked departures from that familiar standard may have greater significance for the future than its precise holding about campaign-free zones. First, the plurality declines to take a hard look at whether a state law is in fact “necessary.” Under the plurality's analysis, a State need not demonstrate that contemporary demands compel its regulation of protected expression; it need only show that that regulation can be traced to a longstanding tradition.”

Second, citing Munro v. Socialist Workers Party, 479 U. S. 189 (1986), the plurality lightens the State's burden of proof in showing that a restriction on speech is “narrowly tai

• The plurality emphasizes that this case “force[s] us to reconcile our commitment to free speech with our commitment to other constitutional rights.” Ante, at 198 (citing Sheppard v. Maxwell, 384 U. S. 333, 361-363 (1966). Although I agree with the plurality on this matter, this characterization of the controversy does not compel (or even indicate) deference to tradition. Indeed in Sheppard itself, the Court did not defer to tradition or established practices, but rather imposed on “appellate tribunals ... the duty to make an independent evaluation of the circumstances” of every case. Id., at 362.

STEVENS, J., dissenting

lored.” In Munro, we upheld a Washington ballot-access law and, in doing so, observed that we would not “requir[e] a State to make a particularized showing of the existence of voter confusion, ballot overcrowding, or the presence of frivolous candidacies prior to the imposition of reasonable restrictions on ballot access.” Id., at 194–195. We stated that legislatures “should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights.” Id., at 195–196. I have substantial doubts about the plurality's extension of Munro's reasoning to this case, most fundamentally because I question the plurality's assumption that campaign-free zones do “not significantly impinge on constitutionally protected rights.” Not only is this the very question before us, but in light of the sweep of such zones and the vital First Amendment interests at stake, I do not know how that assumption can be sound.

Third, although the plurality recognizes the problematic character of Tennessee's content-based suppressive regulation, ante, at 197–198, it nonetheless upholds the statute because “there is simply no evidence” that commercial or charitable solicitation outside the polling place poses the same potential dangers as campaigning outside the polling place, ante, at 207. This analysis contradicts a core premise of strict scrutiny-namely, that the heavy burden of justification is on the State. The plurality has effectively shifted the burden of proving the necessity of content discrimination from the State to the plaintiff.

In sum, what the plurality early in its opinion calls “exacting scrutiny,” ante, at 198, appears by the end of its analysis to be neither exacting nor scrutiny. To borrow a mixed metaphor, the plurality's scrutiny is "toothless.” Mathews v. Lucas, 427 U. S. 495, 510 (1976).

STEVENS, J., dissenting


Ours is a Nation rich with traditions. Those traditions sometimes support, and sometimes are superseded by, constitutional rules. By tradition, for example, Presidential campaigns end on election eve; yet Congress certainly could not enforce that tradition by enacting a law proscribing campaigning on election day. At one time as well, bans on election-day editorial endorsements were traditional in some States, but Mills v. Alabama, 384 U. S. 214 (1966), established that such bans are incompatible with the First Amendment.

In Mills, we set aside the conviction of a newspaper editor who violated such a ban. In doing so, we declined to accept the State's analogy between the electoral process and the judicial process, and its claim that the State could, on election day, insulate voters from political sentiments and ideas much the same way as a jury is sequestered.? We squarely rejected the State's claim that its ban was justified by the need to protect the public “'from confusive last-minute charges and countercharges and the distribution of propaganda in an effort to influence voters on an election day.'Id., at 219 (quoting State v. Mills, 278 Ala. 188, 195–196, 176 So. 2d 884, 890 (1965)). To the contrary, we recognized that it is precisely on election day that advocacy and campaigning "can be most effective.” Mills, 384 U. S., at 219. Mills stands for the simple proposition that, tradition notwithstanding, the State does not have a legitimate interest in insulating voters from election-day campaigning. Thus, in

6 See, e.g., 1913 Mont. Laws $ 34, pp. 590, 607; 1911 N. D. Laws, ch. 129, $ 16, pp. 210, 214; 1909 Ore. Laws, ch. 3, § 34, pp. 15, 29.

7 “The idea behind [the ban on endorsements) was to prevent the voters from being subjected to unfair pressure and 'brainwashing' on the day when their minds should remain clear and untrammeled by such influences, just as this court is insulated against further partisan advocacy once these arguments are submitted.' Brief for Appellee, 0. T. 1965, No. 597, p. 9.

STEVENS, J., dissenting

light of Mills, the fact that campaign-free zones are “traditional” tends to undermine, rather than to support, the validity of the Tennessee statute. In short, we should scrutinize the Tennessee statute for what it is—a police power regulation that also silences a substantial amount of protected political expression.

In my opinion, the presence of campaign workers outside a polling place is, in most situations, a minor nuisance. But we have long recognized that “the fact that society may find speech offensive is not a sufficient reason for suppressing it.”” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55 (1988) (citation omitted). Although we often pay homage to the electoral process, we must be careful not to confuse sanctity with silence. The hubbub of campaign workers outside a polling place may be a nuisance, but it is also the sound of a vibrant democracy.

In silencing that sound, Tennessee “trenches upon an area in which the importance of First Amendment protections is ‘at its zenith.”” Meyer v. Grant, 486 U. S. 414, 425 (1988) (citation omitted). For that reason, Tennessee must shoulder the burden of demonstrating that its restrictions on political speech are no broader than necessary to protect orderly access to the polls. It has not done so.

I therefore respectfully dissent.

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