Intermediate Scrutiny Test in Free Speech Cases

The ‘‘intermediate scrutiny’’ test, which has its origins in equal protection jurisprudence, is now widely used to deal with numerous free-speech problems involving government regulation that does not seek to regulate the content or viewpoint of speech, but that may nonetheless have an incidental impact on freedom of expression. The intermediate scrutiny test generally requires that the government regulation be supported by a ‘‘substantial’’ governmental interest and that the regulation be ‘‘narrowly tailored’’ to effectuate that interest. The concept of ‘‘narrow tailoring’’ in the intermediate scrutiny context, however, does not require the rigorous precision of the ‘‘strict scrutiny’’ test. Specifically, when intermediate scrutiny is applied, the government need not use the ‘‘least restrictive means’’ of regulation. This is often confusing because the languages of the two tests are quite similar.

The general intermediate scrutiny standard borrowed from equal protection jurisprudence often gets slightly adjusted when applied to specific free-speech problems. Such adjustments maintain the general ‘‘intermediate’’ level of judicial scrutiny but tailor the test to include factors particularly important to the nature of the problem at hand.

Perhaps the most common variant of intermediate scrutiny in free-speech cases, for example, is the test used to evaluate the constitutionality of contentneutral ‘‘time, place, or manner’’ regulations. Time, place, or manner regulations do not regulate what is said, but merely such matters as when, where, and how loud. The First Amendment allows ‘‘reasonable’’ time, place, or manner regulations. To determine whether time, place, or manner regulations are reasonable, the Supreme Court employs a three-part test. The Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781 (1989), thus held that ‘‘the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’’

Genuine time, place, or manner regulations are by definition content neutral. If the regulation at issue is not content neutral, then it is an error for a court to apply the standard of review applicable to contentneutral regulations. Thus, the Supreme Court in Hudgens v. NLRB, 424 U.S. 507 (1976), admonished that

While a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes ... and may even forbid altogether such use of some of its facilities ... what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression.

Another important variant of intermediate scrutiny is the standard employed in United States v. O’Brien, 391 U.S. 367 (1968). The O’Brien case dealt with content-neutral laws that have, as their ‘‘incidental’’ impact, some demonstrable burden on speech. O’Brien is a ‘‘workhorse’’ case, employed constantly by courts to assess the constitutionality of contentneutral regulations that have an adverse impact on speech. The Court announced the standard in one of the most important passages in the history of First Amendment jurisprudence, stating that ‘‘a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’’

RODNEY A. SMOLLA

References and Further Reading

  • Smolla, Rodney. Smolla and Nimmer on Freedom of Speech. New York: Thomson/West, 2005, sections 3:1, 8:35; 9:1.
  • Stone, Geoffrey, Content Regulation and the First Amendment, William and Mary Law Review 25 (1983): 189.

Cases and Statutes Cited

  • Hudgens v. NLRB, 424 U.S. 507 (1976)
  • United States v. O’Brien, 391 U.S. 367 (1968)
  • Ward v. Rock Against Racism, 491 U.S. 781 (1989)

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