George Mason Law Review Civil Rights Law Journal

§ 2:12. Distinguishing theory, method, and doctrine in modern free speech jurisprudence—Free speech method—Heightened scrutiny

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§ 2:12. Distinguishing theory, method, and doctrine in modern free speech jurisprudence—Free speech method—Heightened scrutiny

The third methodology discussed in this chapter is heightened scrutiny. This is, admittedly, a relatively vague phrase, and is not generally recognized as a term of art in contemporary First Amendment jurisprudence. It is used here as a broad descriptive term to denote an approach to First Amendment conflicts slightly less protective of freedom of speech than absolutism, but substantially more protective of freedom of speech than ad hoc balancing. This third methodology does not really have a name in modern constitutional law, though it is in fact the methodology that dominates contemporary First Amendment jurisprudence. This methodology has at various times been referred to by such terms as the “definitional balancing” method1 or the “preferred position” concept.2

The term “heightened scrutiny” has been adopted here to describe this methodology because it is the term that best captures what appears to actually be going on in a wide variety of different First Amendment contexts. The Supreme Court has adopted specific First Amendment tests to cover various topical areas, such as the tests for prior restraints,3 protection of press access to trials,4 libel,5 incitement to violence,6content-based discrimination,7 and so on. “Heightened scrutiny,” for example, is the term courts often use to describe the level of judicial review applicable to virtually all content-based regulations on speech in traditional public forums and designated public forums.7.50 It would grossly oversimplify matters to claim that these complex tests—and there are scores of them in contemporary First Amendment doctrine—are all part of the same “mother of all First Amendment tests” methodology called “heightened scrutiny.” Nevertheless, these tests do share a common pattern. The Court consistently refuses to adopt an absolutist position in most areas, yet it also tends to devise doctrines tailored to specific topic areas that are highly protective of freedom of speech, requiring much more than a mere “reasonable basis” for any governmental action abridging speech.
Thus, to use the examples cited above, the Court (1) has not held that all prior restraints are invalid, but has devised a set of doctrines making nearly all such restraints impermissible;8 (2) has not held that the press may never be barred from access to criminal trials, but has devised rules that make it virtually impossible for a trial judge to justify barring the press from access;9 (3) has not held that all libel laws violate the First Amendment, but has set forth a complex body of law making it extremely difficult for some plaintiffs, such as public officials and public figures, to win a libel case;10 (4) has held that the First Amendment does not protect incitement to violence, but has adopted a modern version of the classic clear and present danger test that prevents the government from arresting speakers unless the lawless action is intended and is imminent;11 and (5) has not held that all content-based discrimination is unconstitutional, but has subjected such discrimination to the rigors of the strict scrutiny test.12
As might be expected, the complexity of modern First Amendment law comes from the fact that the Court does not always apply the same level of judicial scrutiny to all conflicts involving freedom of speech. There are times, for example, when the level of scrutiny is so rigorous that it approaches absolutism. Thus, the Court has erected what is essentially an absolute bar against “viewpoint discrimination,”13 and a nearly absolute proscription against prior restraints.14 “Many are those who must endure speech they do not like, but that is a necessary cost of freedom.”14.50 The Court also applies highly speech-protective formulations in many areas in which government seeks to regulate the content of speech, usually using the “strict scrutiny” or “intent to incite imminent lawless action” tests, or some variant of them that is substantially equivalent in its level of speech protection. The “actual malice” standard used by the Supreme Court in libel cases involving public figures, for example, protects libelous speech unless it is uttered with knowledge of its falsity or reckless disregard for its truth or falsity. This standard, created in New York Times Co. v. Sullivan,15 is widely understood as extremely protective of freedom of speech,16 though it is not, technically, either the “strict scrutiny” or “intent to incite imminent lawless action” tests familiar in other First Amendment contexts. It is perfectly sensible, nonetheless, to classify the Court's New York Times libel standard as a variant of “heightened scrutiny,” supplying essentially the same level of protection as the “strict scrutiny” or “intent to incite imminent lawless action” formulas, but adapted to the context of libel litigation.17
In other contexts, however, the Court appears to lower the level of judicial scrutiny applied to laws that limit freedom of speech to what might loosely be called an “intermediate” level of judicial review. This intermediate level of review, for example, is used when the court examines laws that do not deal directly with the content of speech, or when reviewing “commercial speech,” or when reviewing content-based regulations in certain special settings, such as the regulation of broadcasting.
There are also areas in which the Court ostensibly does not heighten the level of scrutiny applied to the regulation of speech at all. Current doctrines state, for example, that obscene speech is wholly outside of the First Amendment, receiving no constitutional protection whatsoever. Even this overstates the matter, for the Court's definition of obscenity is extremely narrow, resulting in the complete protection of a vast amount of pornographic speech. Thus, in practical effect, even the current doctrines governing obscenity are highly free speech-protective, and can validly be called part of the heightened scrutiny methodology.
This treatise follows the heightened scrutiny approach in two senses. First, because heightened scrutiny does in fact capture the essence of modern First Amendment doctrines as they actually exist, this treatise tracks the various forms of heightened scrutiny in different topic areas. Thus, in its descriptive function, this treatise is grounded in heightened scrutiny methodology. Second, whenever this treatise engages in normative analysis of how First Amendment doctrines ought to evolve in the future, heightened scrutiny (in its various forms) tends to be the method that drives the recommendations that are advanced.
Although strict scrutiny was at a time regarded as a certain death knell for a law, described as “strict in theory but fatal in fact,” in more modern constitutional law adjudication laws do, from time to time, survive strict scrutiny. Williams–Yulee v. The Florida Bar,18 for example, represents the occasional decision in which a law subjected to strict scrutiny review is upheld. In Williams-Yulee the Court noted, “[w]e have emphasized that ‘it is the rare case’ in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest,”19 yet then added the caveat: “But those cases do arise.”20 It then proceeded to hold that the Florida restrictions before it were among the rare cases that survive strict scrutiny.21

11A Ill. Law and Prac. Constitutional Law § 135

Illinois Law & Practice

February 2016 Update

Constitutional Law

James Buchwalter, J.D.; Laura Hunter Dietz, J.D.; John Klimpflen, J.D.; Stephen Lease, J.D.; Eric C. Surette, J.D.; and Eleanor L. Grossman, J.D. of the National Legal Research Group, Inc.


B. Freedom Of Speech And Of The Press

The First Amendment does not guarantee the right to communicate views at all times and places or in any manner that may be desired.1 First Amendment rights are not absolute and are subject to reasonable time, place and manner restrictions on the exercise of those rights.2 Various methods of speech, regardless of their content, may frustrate legitimate governmental goals, and therefore, a restriction that regulates the time, place or manner of speech may be imposed so long as it is reasonable.3


The government may impose reasonable restrictions on the time, place, or manner of protected speech, provided that the restrictions: (1) are justified without reference to the content of the speech; (2) are narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels for communication of the information.4 A valid time, place, and manner regulation on speech must be content-neutral.5


A regulation is “content neutral,” for purposes of First Amendment analysis, if it is justified without reference to the content of the regulated speech.6 In other words, content-neutral regulations confer benefits or impose burdens without reference to the ideas or views expressed.7 In determining whether a regulation of speech is content neutral, so as to be subject to an intermediate level of scrutiny, the main inquiry is whether the state has adopted the regulation because of its disagreement with the content of the message sought to be conveyed.8 For purposes of the First Amendment, a regulation that is content neutral and is a place and manner type of regulation is subject to an intermediate level of scrutiny.9


Generally, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based, and thus presumptively invalid under First Amendment.10 Whether an ordinance is content-based, for First Amendment purposes, is a matter of legislative intent.11 Regulations that restrict speech because of its content are subjected to the most exacting scrutiny under the First Amendment.12 For purposes of the First Amendment, a strict scrutiny test is applied if an ordinance or statute is content-based. To meet the strict scrutiny test, a regulation may only restrict free speech where the restriction is precisely tailored to further a compelling state interest.13


In analyzing challenges to a regulation’s constitutionality under the First Amendment, a court differentiates between an as-applied challenge, asserting that the regulation is not narrowly drawn, and an overbreadth challenge. A person making an as-applied challenge claims that his or her acts that are the subject of litigation fall outside what the properly drawn regulation could cover, while a person making an overbreadth challenge attacks the regulation validity facially, claiming that it infringes protected speech even if it might constitutionally be applied to him or her.14 The doctrine of overbreadth is designed to protect First Amendment freedom of expression from laws written so broadly that the fear of punishment might discourage people from taking advantage of the freedom.15 One may challenge a statute as overbroad only if the statute may inhibit the exercise of rights of expression or association protected by the First Amendment.16 A statute should not be invalidated for being overly broad unless its overbreadth is both real and substantial.17


Commercial speech. A reviewing court is to apply the intermediate level of scrutiny to the regulation of commercial speech.18 The level of protection for a particular expression turns on the nature of both the expression and the governmental interests served by the regulation. A court must first determine whether the commercial speech at issue concerns lawful activity and is not misleading, so that it is protected under the First Amendment, and if so, the speech may nonetheless be regulated provided that the government asserts a substantial interest in support of the regulation, the regulation directly and materially advances that interest, and there exists a reasonable fit between the government’s ends and the means chosen to accomplish those ends.19


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