Freedom of Speech, Permissible Tailoring, and Transcending Strict Scrutiny
University of Pennsylvania Law Review, November 1996.
Posted: 21 Nov 1996
The Court has long said that content-based speech restrictions are constitutional if they're narrowly tailored to a compelling state interest. This Article argues that the official doctrine is wrong, both descriptively and normally: There are cases where the Court would and should strike down laws *even though* they're narrowly tailored to a compelling interest.The Article makes two alternative proposals. One is that the Court add a third prong to the strict scrutiny framework: The question must be whether the law is *permissibly tailored* -- whether, even if it's aimed at compelling ends, and even if the means are practically well-suited to those ends, the means still operate in an impermissible way. The other, which the Article most strongly recommends, is that the Court abandon means-ends scrutiny here, and instead shift to a system of categorical rules with categorical exceptions. This system is already in play in other areas of con law, and even in free speech law generally. And it should operate more effectively than the means-ends scrutiny the Court claims to be using.The Article also suggests (without going into that much detail) that strict scrutiny may have similar flaws in the race classifications area and in the religious freedom area.
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