Strict scrutiny is the highest form of review that courts use to evaluate the constitutionality of laws. Under a strict scrutiny analysis, a police force that restricts freedom of spoken communication must achieve a compelling government interest and be narrowly tailored to that interest or be the least speech communication-restrictive means available to the government. Strict scrutiny besides is used when a constabulary 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 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 ways when a court evaluates a law using strict scrutiny, the court will ordinarily strike downwardly the law.

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

In First Amendment gratuitous-speech law, 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 government must show that at that place is a compelling, or very stiff, 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 government.

For example, the U.S. Supreme Court in 2004 invalidated a federal law known as the Child Online Protection Human activity (COPA) because it did not survive strict scrutiny. The police force sought to address the deleterious effects of online pornography past making it illegal to post on the internet any communication for commercial purposes that is harmful to minors. The Supreme Court institute that the government had a compelling governmental interest in protecting minors from harm. Yet, the courtroom found in Ashcroft five. ACLU (2004) that the constabulary failed strict scrutiny considering the restrictions it put on gratuitous speech were non the to the lowest degree restrictive available. The court reasoned that filtering or blocking software was a less speech restrictive alternative.

Some laws have survived strict scrutiny analysis

While the use of strict scrutiny once meant "strict in theory, fatal in fact," in recent years the Roberts Courtroom has applied strict scrutiny in a few cases and upheld the law. For example, in Holder v. Humanitarian Law Project (2009) and Williams-Yulee 5. Florida Bar (2015), the Roberts Court applied strict scrutiny but upheld the challenged laws.

Chief Justice John G. Roberts Jr. explained in Williams-Yulee,which involved a rule prohibiting judicial candidates from soliciting coin, that nether strict scrutiny, narrow tailoring does not hateful "perfect tailoring." Roberts acknowledged that this was a "rare case" when a constabulary would survive strict scrutiny in a First Amendment free-spoken language challenge.

Laws that target a specific religious faith also undergo well-nigh rigorous review

The court as well uses strict scrutiny in complimentary exercise of religion cases when the governmental police deliberately targets a specific religious faith. For example, in Church of the Lukumi Babalu Yes five. City of Hialeah (1993), the Supreme Court invalidated a Florida metropolis law that targeted the Santeria faith and its practice of animal sacrifices. The court used to utilize a course of strict scrutiny more frequently in free practice clause cases, such equally Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), only the court inverse the standard in complimentary exercise clause cases in Employment Division 5. Smith (1990).

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

David Fifty. 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 Starting time Amendment entitled Freedom of Speech: Understanding the Outset Amendment  (At present You Know Media, 2018).  He also is the author of many Offset Amendment books, including The Outset 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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