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First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John D. Inazu

Scholarship@WashULaw

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 …