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 spoken language must reach a compelling government interest and be narrowly tailored to that interest or be the least speech-restrictive means available to the authorities. Strict scrutiny also is used when a constabulary targets a specific religious religion.

Strict scrutiny is the highest course of judicial review that courts use to evaluate the constitutionality of laws, regulations or other governmental policies under legal challenge. Equally 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 courtroom evaluates a police using strict scrutiny, the court will unremarkably strike down the law.

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

In Showtime Amendment free-speech law, content-based and viewpoint-based laws are evaluated nether strict scrutiny every bit opposed to the lower standards of review — intermediate scrutiny or rational footing. Under strict scrutiny, the authorities must evidence that at that place is a compelling, or very strong, interest in the police force, and that the law is either very narrowly tailored or is the to the lowest degree speech restrictive ways available to the authorities.

For example, the U.S. Supreme Court in 2004 invalidated a federal law known every bit the Child Online Protection Human activity (COPA) considering it did not survive strict scrutiny. The law sought to address the deleterious effects of online pornography by making it illegal to post on the net any communication for commercial purposes that is harmful to minors. The Supreme Court constitute that the government had a compelling governmental interest in protecting minors from impairment. Even so, the court found in Ashcroft 5. ACLU (2004) that the police failed strict scrutiny considering the restrictions it put on gratis speech communication were not the least restrictive bachelor. The court reasoned that filtering or blocking software was a less voice communication restrictive alternative.

Some laws accept survived strict scrutiny analysis

While the apply 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 Law Project (2009) and Williams-Yulee five. Florida Bar (2015), the Roberts Court applied strict scrutiny only upheld the challenged laws.

Chief Justice John 1000. Roberts Jr. explained in Williams-Yulee,which involved a dominion prohibiting judicial candidates from soliciting money, that under strict scrutiny, narrow tailoring does not mean "perfect tailoring." Roberts best-selling that this was a "rare instance" when a law would survive strict scrutiny in a First Amendment free-spoken communication challenge.

Laws that target a specific religious faith besides undergo most rigorous review

The courtroom also uses strict scrutiny in free practise of religion cases when the governmental police force deliberately targets a specific religious faith. For example, in Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Supreme Courtroom invalidated a Florida metropolis police that targeted the Santeria religion and its do of animal sacrifices. The court used to utilise a form of strict scrutiny more often in costless exercise clause cases, such equally Sherbert five. Verner (1963) and Wisconsin v. Yoder (1972), only the court changed the standard in complimentary exercise clause cases in Employment Partitioning v. Smith (1990).

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

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

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