The Test that Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence

Abstract:     
This article seeks to fill a major gap in modern First Amendment scholarship by providing a comprehensive examination of a new form of doctrinal analysis that has emerged over the past two decades in free speech law: the intermediate scrutiny test. This is the first major scholarly examination of this area of law in over twenty years, and identifies a number of important and problematic developments that have occurred during that time. The article proceeds in three phases. First, I provide a historical description of the emergence of the new intermediate scrutiny test since the mid-1980s, through a careful examination of the caselaw in both the Supreme Court and in the Courts of Appeals. My essential argument here is that so-called intermediate scrutiny arose through the almost inadvertent, and to this date still somewhat incomplete, merger of a number of previously distinct strands of First Amendment jurisprudence in the Supreme Court. Despite the uncertainties that still exist in the Supreme Court, however, at the appellate level it is clear that a distinct body of intermediate scrutiny free speech jurisprudence has in fact emerged, and that the Courts of Appeals now generally recognize intermediate scrutiny as a well-established First Amendment test. Second, I turn to an examination, including some empirical analysis, of how the intermediate scrutiny test has in fact been applied in the Courts of Appeals since its emergence twenty years ago. In this section I provide numerical analyses of the 113 relevant appellate cases, as well as descriptions of some of the most significant ones. Finally, in the third part of the article I articulate some lessons that emerge from the analysis provided in the second part, and provide recommendations for the future. In particular, I argue that the emergence of the intermediate scrutiny test has severely limited the Supreme Court's ability to control the consistency or quality of lower court decisionmaking in this area. For that reason, the Court should seriously consider disaggregating the various strands of intermediate scrutiny jurisprudence.

Keywords: First Amendment, free speech, intermediate scrutiny, appellate courts

Accepted Paper Series