Strict scrutiny is the highest form of review that courts use to evaluate the constitutionality of laws. Under a strict scrutiny analysis, a law that restricts freedom of speech must achieve a compelling authorities interest and be narrowly tailored to that interest or be the least spoken communication-restrictive means bachelor to the regime. Strict scrutiny also is used when a constabulary targets a specific religious faith.

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

Strict scrutiny applied when laws restrict speech rights based on viewpoint or content

In Kickoff Amendment free-speech police force, content-based and viewpoint-based laws are evaluated nether strict scrutiny every bit opposed to the lower standards of review — intermediate scrutiny or rational basis. Nether strict scrutiny, the government must bear witness that there is a compelling, or very strong, interest in the law, and that the police force is either very narrowly tailored or is the least speech restrictive means available to the government.

For case, the U.S. Supreme Court in 2004 invalidated a federal law known every bit the Kid Online Protection Human action (COPA) considering it did not survive strict scrutiny. The police force sought to address the deleterious effects of online pornography by making it illegal to post on the internet any communication for commercial purposes that is harmful to minors. The Supreme Court found that the government had a compelling governmental interest in protecting minors from harm. Nonetheless, the courtroom plant in Ashcroft v. ACLU (2004) that the police force failed strict scrutiny because the restrictions it put on free speech were not the least restrictive bachelor. The court reasoned that filtering or blocking software was a less speech restrictive alternative.

Some laws have survived strict scrutiny assay

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

Chief Justice John Chiliad. Roberts Jr. explained in Williams-Yulee,which involved a rule prohibiting judicial candidates from soliciting money, 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 costless-speech claiming.

Laws that target a specific religious faith as well undergo most rigorous review

The court besides uses strict scrutiny in gratuitous practice of organized religion cases when the governmental law deliberately targets a specific religious faith. For example, in Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Supreme Court invalidated a Florida city law that targeted the Santeria religion and its practice of animal sacrifices. The court used to apply a grade of strict scrutiny more frequently in free exercise clause cases, such as Sherbert five. Verner (1963) and Wisconsin v. Yoder (1972), but the courtroom changed the standard in free exercise clause cases in Employment Segmentation 5. Smith (1990).

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

David 50. Hudson, Jr . is a constabulary professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio class on the Get-go Amendment entitled Freedom of Spoken communication: Understanding the Kickoff Subpoena  (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech  (Thomson Reuters, 2012) and Liberty of Speech: Documents Decoded  (ABC-CLIO, 2017). This article was originally published on Aug. 16, 2021.

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