Strict scrutiny is the highest grade of review that courts use to evaluate the constitutionality of laws. Under a strict scrutiny analysis, a law that restricts freedom of spoken communication must attain a compelling authorities interest and be narrowly tailored to that interest or be the least oral communication-restrictive means available to the government. Strict scrutiny besides is used when a police force targets a specific religious faith.

Strict scrutiny is the highest form of judicial review that courts use to evaluate the constitutionality of laws, regulations or other governmental policies nether legal challenge. As Justice David Souter famously wrote in his dissenting opinion in Alameda Books 5. City of Los Angeles (2002), "Strict scrutiny leaves few survivors." This ways when a court evaluates a constabulary using strict scrutiny, the court volition ordinarily strike downwards the police.

Strict scrutiny practical when laws restrict oral communication rights based on viewpoint or content

In Kickoff Subpoena free-speech police, content-based and viewpoint-based laws are evaluated under strict scrutiny as opposed to the lower standards of review — intermediate scrutiny or rational basis. Nether strict scrutiny, the authorities must show that there is a compelling, or very strong, interest in the law, and that the law is either very narrowly tailored or is the to the lowest degree speech restrictive ways available to the authorities.

For instance, the U.South. Supreme Court in 2004 invalidated a federal police force known every bit the Child Online Protection Act (COPA) considering it did non survive strict scrutiny. The law sought to address the deleterious effects of online pornography by making it illegal to post on the internet any advice for commercial purposes that is harmful to minors. The Supreme Court found that the government had a compelling governmental involvement in protecting minors from harm. All the same, the court establish in Ashcroft v. ACLU (2004) that the law failed strict scrutiny because the restrictions it put on free speech were non the to the lowest degree restrictive available. The courtroom reasoned that filtering or blocking software was a less speech restrictive alternative.

Some laws accept survived strict scrutiny assay

While the use of strict scrutiny once meant "strict in theory, fatal in fact," in contempo years the Roberts Court has applied strict scrutiny in a few cases and upheld the police. For instance, in Holder v. Humanitarian Police Project (2009) and Williams-Yulee v. Florida Bar (2015), the Roberts Courtroom practical strict scrutiny but upheld the challenged laws.

Chief Justice John 1000. Roberts Jr. explained in Williams-Yulee,which involved a dominion prohibiting judicial candidates from soliciting coin, that under strict scrutiny, narrow tailoring does not mean "perfect tailoring." Roberts acknowledged that this was a "rare example" when a law would survive strict scrutiny in a First Amendment free-speech claiming.

Laws that target a specific religious faith also undergo nearly rigorous review

The court as well uses strict scrutiny in free exercise of faith cases when the governmental police deliberately targets a specific religious faith. For example, in Church of the Lukumi Babalu Yes v. City of Hialeah (1993), the Supreme Court invalidated a Florida urban center law that targeted the Santeria religion and its exercise of creature sacrifices. The court used to apply a grade of strict scrutiny more oftentimes in free practice clause cases, such as Sherbert five. Verner (1963) and Wisconsin v. Yoder (1972), but the court changed the standard in free exercise clause cases in Employment Partitioning v. Smith (1990).

If a police force is considered neutral and of general applicability, the standard applied is a course of rational basis rather than strict scrutiny.

David L. Hudson, Jr . is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio form on the Start Amendment entitled Freedom of Speech: Understanding the First Amendment  (Now You lot Know Media, 2018).  He also is the author of many First Subpoena books, including The Outset Amendment: Liberty of Oral communication  (Thomson Reuters, 2012) and Freedom of Oral communication: Documents Decoded  (ABC-CLIO, 2017). This article was originally published on Aug. 16, 2021.

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