Inazu on First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests @JohnInazu @WUSTL @WashULaw @BrooklynLawRev

John D. Inazu, Washington University, St. Louis, School of Law, is publishing First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests in the Brooklyn Law Review. Here is the abstract.

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. Taken seriously, a uniform strict scrutiny test could eliminate cumbersome doctrinal tests and detours that have emerged over the past sixty years. These tests and doctrines are not unprincipled or illogical. In most cases, they emerged out of tough cases and hard issues, with judges and scholars attempting to draw reasonable distinctions and sensible boundaries. But along the way, these approaches became bloated, unwieldy, and difficult to hold together. The result has been a great deal of confusion and head-scratching, including by lower courts attempting to apply Supreme Court precedent. Strict scrutiny shows why these tests and detours are neither necessary nor desirable for First Amendment analysis and how a more simplified analysis better protects our most important civil liberties.

Download the article from SSRN at the link.