Brooklyn Law Review (forthcoming 2023)
This Article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality.
Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries into coverage, categories, and content. Part III suggests how a uniform strict scrutiny test could better focus courts on government interests and related analyses. Part IV defends this test against possible objections.
First Amendment, Constitutional Law, Free Expression
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Inazu, John D., "First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests" (2023). Scholarship@WashULaw. 11.