The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence
Ashutosh Bhagwat | 2007 U. Ill. L. Rev. 783
There is little doubt that over the past thirty years, the most im-portant doctrinal development in the jurisprudence of constitutional rights has been the formulation, and proliferation, of “tiers of scrutiny,” which courts employ to reconcile individual liberties with societal needs. The First Amendment “intermediate scrutiny” tier was born as a product of the merger of several distinct and narrow branches of the Supreme Court’s jurisprudence and, over the years, has attained central im-portance in the overall structure of free speech law. Indeed, so important and ubiquitous has intermediate scrutiny become that Justice Scalia has described it as a “default standard,” and it has been the standard of re-view in countless significant Supreme Court and courts of appeals cases over the past quarter century. Despite this importance, however, scholar-ly analysis of First Amendment intermediate scrutiny has been curiously muted.
This article seeks to fill this major gap in modern First Amendment scholarship by offering a comprehensive assessment of the intermediate scrutiny test. After providing a historical description of the development of intermediate scrutiny since the mid-1980s, this article argues that de-spite uncertainties that still exist in the Supreme Court, it is clear that a distinct body of intermediate scrutiny free speech jurisprudence has emerged at the appellate level. Then, this article turns to an examination of how the intermediate scrutiny test has in fact been applied in the courts of appeals since its emergence. Because an examination of the case law reveals that the intermediate scrutiny test does not function very well in practice, this article concludes that the proper doctrinal solution is disaggregation. Disaggregation, the dismantling of the intermediate scrutiny test into its constituent parts, will create a more detailed jurisprudence regarding how appellate courts should balance speech rights and societal interests in different areas of free speech law.