PART 1 OF 3
Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny
EUGENE VOLOKH *
Cite as Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pennsylvania L. Rev. 2417 (1997).
The Supreme Court has often held that content-based restrictions on fully protected speech are valid if they are "narrowly tailored to serve a compelling state interest." 1 I believe this is wrong.
It is wrong descriptively: There are restrictions the Court would strike down -- of which I'll give examples -- even though they are narrowly tailored to serve a compelling state interest. It is wrong normatively: In striking these restrictions down, the Court would, in my view, be correct. And the official test is not just wrong but pernicious. It risks leading courts and legislators to the wrong conclusions, it causes courts to apply the test disingenuously, and it distracts us from looking for a better approach. 2
After briefly restating strict scrutiny doctrine (Part I), I'll give three examples of speech restrictions that in my view would pass muster if the strict scrutiny framework were taken seriously, but that nonetheless would and should be struck down (Part II). I'll then point to some of the costs of the Court's reliance on an unsound doctrinal structure (Part III), and finally (Parts IV and V) suggest the rough foundations -- and, I concede, only the rough foundations -- of two alternative approaches.
The first alternative is for the Court to acknowledge that there is a third prong to strict scrutiny, which I call "permissible tailoring." Rather than just asking about the strength of the government's interest, or about whether the means are narrowly drawn to accomplish the interest, it asks whether the means are nonetheless impermissible: Whether, no matter how narrow they are, and no matter how compelling an interest they serve, the means are still contrary to some basic prohibitions that the Free Speech Clause imposes. This, I'll argue, is an inquiry quite distinct from what the Court requires under the "narrow tailoring" prong.
The second alternative, which I prefer, is for the Court to shift away from means-ends scrutiny, and toward an approach that operates through categorical rules -- such as a per se ban on content-based speech restrictions imposed by the government as sovereign -- coupled with categorical exceptions, such as the exceptions for fighting words, obscenity and copyright. I think this framework would better direct the Court's analysis, and would avoid the erroneous results that strict scrutiny seems to command.
I. A Brief Restatement of Strict Scrutiny Doctrine
Content-based speech restrictions, the Court says, are constitutional if they are "narrowly tailored to serve a compelling state interest"; 3 many have aptly called this an "ends and means" inquiry. 4 The Court makes a normative judgment about the ends: Is the interest important enough to justify a speech restriction? 5 And the Court makes a primarily empirical judgment about the means: If the means do not actually further the interest, are too broad, are too narrow, or are unnecessarily burdensome, then the government can and should serve the end through a better-drafted law. 6
The Court has set forth four general principles related to compelling interests:
1. The government can have no compelling interest in privileging particular subclasses of core protected speech -- discussion about economic, social and political matters -- over other subclasses. All such core protected speech "rest[s] on the highest rung of the hierarchy of First Amendment values." 7 The mere interest in furthering a subset of this speech (for instance, labor picketing) "without more, cannot justify [a content-based] exemption" for such speech. 8
2. Avoidance of offense and restriction of bad ideas are not compelling interests by themselves: "`[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.´" 9 Note though that the word "simply" here, like the phrase "without more" in the quote at the end of the last paragraph, leaves a good deal uncertain. What if society finds an idea offensive and the resulting offense leads to a particular bad result, such as employees of a particular religion, race or sex becoming so offended by workplace speech that they reasonably conclude that their workplaces have become hostile environments? 10 What if society wants to prevent disclosure of embarrassing facts about people, because people might find it "offensive or disagreeable" for their neighbors to know these facts about them? 11 The answers to both these questions, and to others like them, are far from settled.
3. A law's underinclusiveness -- its failure to reach all speech that implicates the interest -- may be evidence that an interest is not compelling, because it suggests that the government itself doesn't see the interest as compelling enough to justify a broader statute. 12
4. An interest might itself be impermissibly underinclusive, even if the law is quite narrowly fitted to the interest: The government (at least under some circumstances) may not assert a compelling interest in fighting one particular ill, and then refuse to deal with other ills that seem almost indistinguishable. There's only one case that squarely raises this point, so the boundaries of this principle are still quite vague. 13
Outside these general areas, the Court has recognized a number of specific interests as compelling: "maintaining a stable political system"; 14 ensuring that "criminals do not profit from their crimes" and that crime victims are compensated by the criminals; 15 protecting the right of "members of groups that have historically been subjected to discrimination . . . to live in peace where they wish"; 16 protecting voters from confusion, undue influence and intimidation; 17 preventing vote-buying; 18 "eliminating from the political process the corrosive effect of political `war chests' amassed with the aid of the legal advantages given to corporations"; 19 and protecting "the unique role [of] the press," which may justify otherwise impermissible speaker discrimination. 20 In the associational rights and religious freedom contexts, the Court has held that preventing race and sex discrimination, 21 preserving the integrity of the tax system, 22 and "procuring the manpower necessary for military purposes" 23 are also compelling. Query whether these interests apply equally in the free speech context.
On the other hand, the Court has held that the interests in "equalizing the relative ability of individuals and groups to influence the outcome of elections," 24 in "reducing the allegedly skyrocketing costs of political campaigns," 25 in "preserving party unity during a primary," 26 and in protecting speakers who "are incapable of deciding for themselves the most effective way to exercise their First Amendment rights" 27 are not compelling. If the substantive due process and equal protection cases are any guide, neither is the interest in administrative efficiency. 28
Most cases striking down speech restrictions, however, rely primarily on the narrow tailoring prong, which, according to the Court, contains four components: 29
1. Advancement of the Interest: For a law to be narrowly tailored, the government must prove to the Court's satisfaction that the law actually advances the interest. 30 The government need not, however, prove this scientifically; a sufficiently persuasive common-sense foundation is enough. 31
2. No Overinclusiveness: A law is not narrowly tailored if it restricts a significant amount of speech that doesn't implicate the government interest. 32 The theory here is that if the government can serve the interest while burdening less speech, it should.
3. Least Restrictive Alternative: A law is not narrowly tailored if there are less speech-restrictive means available that would serve the interest essentially as well as would the speech restriction. 33 The justification for this requirement is similar to that for the overinclusiveness inquiry, though one can imagine a law that isn't overinclusive -- that restricts only the speech that implicates the interest -- but is still not the least restrictive alternative. This might happen when the interest can be served equally well with a restriction on unprotected conduct rather than on speech, 34 or with a restriction that merely limits the speech in some ways rather than barring it altogether. 35 The government need not, however, choose an alternative that "fall[s] short of serving [the] compelling interests." 36
These three components are closely related, and all of them could be subsumed within the "least restrictive alternative" inquiry. If the law doesn't actually advance the interest, then not having the law at all would be a less restrictive but equally effective alternative. Likewise, if the law is overinclusive, then a narrower law that exempted speech which doesn't implicate the interest would be less restrictive and equally effective. When the Court says, as it sometimes does, that a law must be "`necessary to serve a compelling state interest,´" 37 it seems to be referring to these three components. 38
4. No Underinclusiveness: Finally, a law is not narrowly tailored if it fails to restrict a significant amount of speech that harms the government interest to about the same degree as does the restricted speech. 39 Underinclusiveness might suggest, as mentioned above, that the interest isn't very important, or that the government's real interest wasn't the stated one but was rather just a desire to favor one form of speech over another, or to suppress offensive or otherwise disfavored speech. 40 Underinclusiveness may also show the presence of content discrimination beyond that justified by the compelling interest. Because content discrimination is disfavored, and allowed only when justified by a compelling interest, the presence of this extra, unjustified distinction makes the law unconstitutional. 41
Some cases have condemned content distinctions because speech on both sides of the line implicated the interest equally. For instance, the Court has held that a bar on nonlabor residential picketing was not narrowly tailored to the interest in preserving residential privacy because labor picketing and nonlabor picketing were equally intrusive. 42 Such cases turn on underinclusiveness principles -- they strike down laws for being strikingly underinclusive with respect to the interest they purport to serve.
On their faces, all four of these prohibitions call for primarily empirical judgments -- judgments about the closeness of the fit between the law and the interest -- rather than normative ones. Once the Court concludes that the interest is compelling, the strict scrutiny framework requires that the free speech interest yield to a narrowly drawn law. The narrow-tailoring prong, then, involves essentially factual questions about whether the law is indeed narrowly drawn: Does the law further the interest; is the law limited to speech that implicates the interest; does the law cover all such speech; are there less restrictive alternatives that will serve the interest equally well?
II. Applying the Doctrine to Some Cases
A. The Wartime Election
The problem with the strict scrutiny framework is that if taken seriously it would reach results startlingly at odds with some fundamental free speech principles.
Consider the following example: The United States is fighting a slow, limited, Vietnamesque war against, say, Serbia. (For the sake of simplicity, assume that we are the key partner in the coalition, and that our departure would mean a Serbian victory.) Things seem to be going slowly in our favor, but the Serbs appear able to hold out until at least the next election. The current U.S. administration is offering the Serbs peace on relatively harsh terms.
The U.S. presidential campaign is about to start, and Congress is concerned: What if some candidates announce that they'd give the Serbs a more favorable offer? If this happens, the Serbs might refuse to come to terms until after the election, hoping a dovish candidate will win. And, of course, every month that peace is delayed could mean thousands of lost lives, both American and foreign. So Congress passes a law that prohibits all prospective presidential candidates from saying that they'd offer peace terms lighter than those the current administration is proposing. 43
Such a law should be unconstitutional, even if one believes that more speech restrictions should be allowed in wartime than in peacetime. This is not a ban on revealing the sailing dates of troopships, or even on encouraging people to resist the draft. This bars a candidate from bringing before the voters alternatives that they, as the sovereign power in a democracy, are entitled to consider. They've considered such alternatives in wartime elections throughout American history, especially in 1864, 1968 and 1972. Surely their right to consider these alternatives is a key aspect of democracy, precisely because so much rides on their decision.
But, the Court tells us, content-based speech restrictions are constitutional if they pass strict scrutiny -- if they "are narrowly tailored to serve a compelling state interest." 44 (Of course, the fact that the speech here relates to elections doesn't give it any protection greater than does strict scrutiny; the three cases that have upheld speech restrictions under the strict scrutiny framework -- Buckley v. Valeo, 45 Austin v. Michigan Chamber of Commerce 46 and Burson v. Freeman 47 -- all involved election-related speech.) What answer, then, does the official strict scrutiny framework yield?
1. Compelling Interest
The government interest in winning the war more quickly -- and in preserving lives -- is as compelling as they come. 48 The interest is not in "prohibit[ing] the expression of an idea simply because society finds the idea itself offensive or disagreeable." 49 The interest is in winning the war, not simply in suppressing ideas.
Some might suggest that the interest is impermissible because it's an interest in winning the war through the suppression of speech. This argument, though, confounds the two prongs of the test. The government doesn't want suppression of speech for its own sake. Rather, the government's interest is in the enemy quickly accepting the peace terms, just as the interest the Court accepted as compelling in Buckley was in avoiding corruption. In both cases, the suppression of speech is only the means by which the interest is served. If there is any sense in separating the inquiry into the end from the inquiry into the means -- and the strict scrutiny framework assumes there is sense in this -- then the interest must be the goal the government is serving, without reference to the means it's using.
But even if one reads the interest here as including a "through the suppression of speech" clause, there can't be anything per se unacceptable about this interest. The premise of strict scrutiny is that sometimes the government may suppress speech and suppress ideas, so long as the means of suppression is narrowly tailored to serve a compelling end.
In Burson, for instance, the interest in preventing fraud and intimidation was jeopardized by people communicating their ideas, and was served by suppressing this communication. 50 In Austin the interest in preventing corruption and the "corrosive and distorting effects [on the political process] of immense aggregations of wealth" was jeopardized by corporations communicating their ideas, and was served by suppressing this communication. 51 Despite this resulting suppression, a plurality in Burson and a majority in Austin concluded that the law passed strict scrutiny; even the Burson dissent didn't doubt that the interest was compelling. 52
2. Narrow Tailoring -- Advancement of the Interest
The factual predictions underlying the law seem eminently plausible. If the Serbs think they might get a better peace if a certain candidate is elected, they have a powerful incentive to keep fighting.
Granted, candidates' statements might not make a difference in some situations, for instance if the Serbs can't hold out until the election regardless of who is likely to win, or if they will fight to the end in any case. But in many other circumstances, an enemy might indeed behave differently depending on the various presidential candidates' views. "Dissension within a country is a high source of comfort and assistance to its enemies; the least intimation of it they seize upon with jubilation. There cannot be the slightest question of the mischievous effects of such agitation upon the success of the national project . . . ." 53 Surely this is especially true when one of the dissenters is a candidate for president.
Of course, the candidates will have views, whether enunciated or not. If the enemy knows that, for example, Governor Jones has dovish opinions, even if he's not expressing them in his campaign -- or even if the law forces him to express contrary views in the campaign -- the enemy might still decide to wait to see if Jones is elected.
But even if Jones's general views are partly known -- which will not always be so, especially if he is currently only a governor and not a federal official -- there's a big difference between what he said before the campaign and what he says on the campaign trail. Jones is probably much more likely to feel bound by his announced platform than by any views he might have expressed before he began his campaign. Moreover, if he is elected, he'll have a much easier time implementing an announced policy, for which he can credibly claim he has a popular mandate, than an unannounced one. Campaign statements should thus matter a great deal to the enemy's resolve.
The law would not by itself go far in advancing the government interest; but the Court has never demanded that the law make a particularly huge dent in the problem it's trying to solve. Certainly the contribution restrictions upheld in Buckley didn't go far by themselves in preventing corruption -- the Federal Election Campaign Act never purported to address all aspects of corruption. 54 Likewise, the law upheld in Burson was one of the less potent tools that the state had for "protecting voters from confusion and undue influence" or protecting the election process from fraud. 55 The Court, though, was untroubled by this; it demanded only that the law in some measure advance the interest, not that it advance it remarkably far. 56
One can undoubtedly construct scenarios in which the campaign speech restriction wouldn't actually serve the asserted interest. It's possible that the Serbs would be emboldened by the law's passage because they saw it as evidence that the United States thought itself in trouble, or would hope that the law would cause so much libertarian resistance that the U.S. war effort would be undermined -- possible, but not particularly likely. If the Court gives the salutary effects of speech every possible benefit of the doubt, and views the harmful effects of speech with maximal skepticism, any speech restriction can be condemned as unnecessary or even counterproductive. I'm not sure, however, that this is an honest way of evaluating the likely effectiveness of a speech restriction; and it certainly is not the approach the Court took in Burson, Austin or Buckley. 57
3. Narrow Tailoring -- Overinclusiveness
For the same reasons, the law is not overinclusive. All the forbidden speech can jeopardize the government interest; all statements by a presidential candidate suggesting that he'd offer mild terms can indeed encourage the enemy to keep fighting.
True, we can't identify precisely the harm that flows from any one statement; it could be that, viewed in retrospect, some isolated statements did not by themselves have any appreciable effect. But that doesn't make the law overbroad. Not every campaign contribution or coordinated expenditure leads to corruption. 58 Not every instance of electioneering near polling places intimidates voters; all one can say is that some such electioneering "may . . . drive the voter[s] away," and that this represents a "potential deficienc[y] in the electoral process." 59 Not every independent expenditure by a corporation on behalf of a political candidate has a corrosive effect on the political process -- all they have is a "potential for distortion." 60 Strict scrutiny does not demand (and cannot demand) that every restricted statement have a provable, identifiable harmful effect. If it did, no restrictions would ever pass strict scrutiny.
4. Narrow Tailoring -- Least Restrictive Alternative
Nor are there any less restrictive alternatives that will still further the interest equally well and thus avoid "unnecessarily interfering with First Amendment freedoms." 61 Any alternative seems quite likely to "fall short of serving [the] compelling interests." 62
Counterspeech is pointless -- leaders of the current Congress might say "No, no, we'll continue to offer harsh terms to the Serbs no matter what," but how much can they do if the dove indeed gets elected? Congressional leaders might say, "No, no, don't elect this traitor," but so long as he seems viable in the polls -- and viability does not mean that a current majority of voters support him, only that he has enough support that his election remains a possibility -- the Serbs will keep fighting and Americans will keep dying. Finally, the Administration might redouble its military efforts and try to force the Serbs to surrender before the election; but that might not work, and might in any event lead to even more casualties.
5. Narrow Tailoring -- Underinclusiveness
It's also hard to see how the law is underinclusive. It bars a class of statements that is especially likely to make the enemy hold out; few other statements pose a comparable danger. Perhaps one might argue that similar statements by congressional candidates are equally dangerous -- if so, then assume a law that does go that far.
So the law, it seems to me, is narrowly tailored to a compelling interest. It advances the interest, it is not overinclusive, it is not underinclusive, and there are no less restrictive alternatives. But it still seems clearly unconstitutional. 63
B. Praising Rioters
Consider another example: The government bars speech that praises rioting, on the grounds that the speech makes it more likely that people will riot in the future. 64 It seems clear that such a law would be unconstitutional. 65 But can one reach that conclusion by applying strict scrutiny candidly?
1. Compelling Interest
The government interest in preventing death, injury and destruction of property is surely compelling. Like the interest in the first example, it is not an interest in "prohibit[ing] the ex-pression of an idea simply because society finds the idea itself offensive or disagreeable." 66 The interest is in preventing violence, not simply suppressing communication (though, as in the first example and as in Buckley, Austin and Burson, the law accomplishes the interest by means of suppressing communication).
2. Narrow Tailoring
The theory of the law is that praise or even moral defense of rioting -- for example, people and especially community leaders calling the riots "rebellion," or suggesting that rioting actually does good by shaking up the oppressive power structure, or arguing that the oppressed are morally justified in burning, looting and assaulting -- will make future riots more likely and more damaging. And this seems eminently plausible.
When people know the police aren't there, the main things that stop them from rioting (other than the possibility of individual, usually violent, self-defense by their victims) 67 are their own consciences and the judgments of those about whose opinions they care. Both these factors are deeply affected by what people hear from respected voices in their community.
Speech, as some have pointed out, constructs social reality. 68 It can turn conduct that society otherwise marks "evil" into conduct marked "good" or "tolerable" or at least "contested." If we believe that advocacy of good behavior makes it more likely that people will behave well, then it seems probable that advocacy of bad behavior, or even making excuses for bad behavior, makes it more likely that people will behave badly:
Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind . . . increases it. Advocacy of lawbreaking heightens it still further. 69
Thus, the law advances the government interest, 70 and it does this in a way that's not overinclusive; if the factual theory outlined above is correct, all the banned statements have the potential to undermine the interest. 71 Nor are there any less restrictive alternatives that will still avoid "unnecessarily interfering with First Amendment freedoms" 72 without "fall[ing] short of serving [the] compelling interests." 73 Prohibiting rioting certainly won't do the job by itself: Laws aren't always followed, especially when order has already broken down.
The government, or others, could try to counterspeak, but how effective would that be? Speech that advocates bad behavior -- be it rioting, racism, bombing draft offices, bombing abortion clinics or killing police officers -- is dangerous because it makes certain behavior thinkable. The very fact that some authority figures condone a form of conduct may embolden those who want to act that way. Rather than being a horrible thing that no good person would do, rioting or bombing becomes an acceptable alternative, one of many approaches to problem-solving that various people advocate. Perhaps the counterspeech might undo some of the harm, but it seems quite unlikely that it will undo all or even most of it. 74
One could, of course, argue that the likely effectiveness of proriot advocacy is overstated, as Holmes and Brandeis argued in some (though not all) of their 1910s and 1920s free speech opinions. 75 One could also argue that suppression of the speech is unlikely to do much good in any event, and that counterspeech is indeed the most practically useful response. But these are only guesses, and they strike me as guesses that are hard to support.
If simply articulating such a guess were enough to condemn a speech restriction as unnecessary and therefore unconstitutional, it's hard to imagine how any restriction would be permissible. In fact, the Court has upheld speech restrictions under strict scrutiny in the face of such guesses. The Court was not, for instance, willing to speculate that disclosure requirements alone would deter corruption as much as would a contribution ban. 76 Nor was the Court willing to speculate that laws barring interference with voting would prevent such interference as well as would the ban on electioneering near polling places. 77
Sometimes, the Court does make commonsense judgments that a particular less restrictive means will indeed be equally effective. 78 But common sense suggests that bad speech can indeed lead to bad results, that speech restrictions might to some degree prevent such results, and that counterspeech standing alone will not always do an equally good job.
Finally, the law is not underinclusive -- it bars all statements that countenance and thus indirectly encourage rioting. The law might not discourage other crimes, but advocacy of rioting is particularly troublesome because the threat of punishment is particularly ineffective when order has broken down. The construction of attitudes that tolerate rioting is thus especially dangerous. Perhaps one might say that this isn't enough of a justification for singling out praise of rioting, and that the law should also ban praise of rape and murder and robbery and such. If so -- and this would make the underinclusiveness requirement toothy indeed, probably toothier than the cases warrant 79 -- the hypothetical can be modified accordingly.
The praise-of-rioters example is far from unusual. I use it because I think it's particularly apt factually -- it seems more obvious that legitimization of rioting would lead to bad results today than would legitimization of, say, Communist revolution -- but the Court has had to deal with laws like the one I describe for decades. In fact, the arguments for suppression discussed above were largely what the Court accepted in Abrams v. United States 80 with regard to speech that hinders the war effort, and in Gitlow v. New York 81 with regard to advocacy of violent revolution.
In more recent times, many who advocate restrictions on racist and sexist speech have argued that these restrictions pass muster under the formal parameters of strict scrutiny. 82 Preventing discrimination is, they say, a compelling interest (and the Court has generally, outside the free speech context, agreed). 83 The restrictions on bigoted speech serve this interest, and are neither overinclusive nor underinclusive in serving it. And the less restrictive alternatives -- prohibiting discrimination or racial violence as such, and counterspeaking -- might not be very effective. 84
C. Sexually Explicit Speech and Minors
Finally, consider a third example: The government tries to ban all distribution of sexually oriented materials that are supposedly harmful to minors but not obscene for adults. The law is clearly unconstitutional -- the Court struck down such a law in 1957 in Butler v. Michigan, saying the law "burn[ed] the house to roast the pig." 85 The Justices held that the restriction was "not reasonably restricted to the evil with which it is said to deal," pointing out that other laws already barred distribution of such materials to minors. 86
But if we reconsider this under the strict scrutiny framework that supposedly governs today, why isn't the law permissible? The interest in "shielding minors from the influence of [indecent] literature that is not obscene by adult standards," the Court has since held, is compelling. 87 I'm not sure that's right, but that's what the Court has said.
In Sable Communications v. FCC, the Court did strike down a ban on dial-a-porn, on the grounds that there were less restrictive alternatives, such as a requirement that the service ask for the caller's credit card number before continuing with the call. 88 But these alternatives mattered because "[t]here [was] no evidence . . . that enterprising youngsters could and would evade the rules." 89 "For all we know from this record," the Court asserted, "[these alternatives] would be extremely effective, [and i]f this is the case, it seems to us that [the law] is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages." 90 The pregnant negative -- and this is consistent with the other least restrictive means cases -- is that if the alternatives were likely to be ineffective, the law would be narrowly tailored.
Unlike phone sex services, sexually explicit books and magazines don't have credit card verification mechanisms. The only way to shield minors even halfway effectively from such publications is to ban them outright; if you let them be distributed to adults, they'll inevitably become accessible to children (even if distribution to children is outlawed). Certainly the alternative suggested by Butler v. Michigan would "fall short of serving [the] compelling interest"; 91 it would be a less restrictive alternative, but also a much less effective one.
Nor can the Butler law be condemned as overinclusive in the sense in which overinclusiveness is used in the cases. Each sexually explicit book sold to an adult might fall into a child's hands. Of course, many such books won't actually end up accessible to children, but then again many campaign contributions won't actually lead to corruption, and much electioneering near polling places won't actually intimidate voters. So long as each instance of the prohibited speech might implicate the interest -- so long as we cannot tell whether it will or it won't -- it's hard to condemn the prohibition as overinclusive.
D. Possible Defenses of Strict Scrutiny
1. Strict Scrutiny as Balancing
Some people with whom I've discussed the above examples have suggested that there might be something to strict scrutiny that I'm missing. The narrow tailoring inquiry, they say, is more than just an inquiry into advancement of the interest, overinclusiveness, underinclusiveness and less restrictive means. It also contains an element of balancing. Under it, the Court should ask whether the degree to which the law serves the interest, compelling though the interest may be, is nonetheless outweighed by the degree to which the law abridges valuable speech.
Alternatively, they say, the compelling interest inquiry is more than just an inquiry into whether the government interest is strong enough: It is also an inquiry into whether the benefit to the government interest is outweighed by the harm to the equally compelling interest in free speech itself. Under either approach, the Court might say, for instance, that the benefit to the war effort (and to the lives of our soldiers) which would be gained by the speech restriction is outweighed by the cost to deliberative democracy that the restriction imposes.
I sympathize with the normative theory behind this view, but I do not think this approach is "strict scrutiny" as traditionally understood. To begin with, this isn't what the Court says when it talks of strict scrutiny. The phrases "compelling state interest" and "narrow tailoring" do not on their face include either of the "balancing" inquiries described above. The interest inquiry seems to focus only on the importance of the government's ends: Is the interest compelling? If the answer is yes, the interest inquiry appears to stop. Likewise, the tailoring inquiry seems to focus only on the means-ends fit: Is the law the best practicable way of serving the interest?
The cases don't go into the balancing approaches identified above either. Austin v. Michigan Chamber of Commerce 92 and the plurality in Burson v. Freeman, 93 for instance, engage in the compelling-interest/narrow-tailoring inquiry I outlined in Part I: They look at how compelling the interest is; they ask whether the law serves the interest and whether the law is overinclusive, underinclusive, or not the least restrictive means; and they don't do any "balancing" beyond this, even though election-related speech is generally seen as being at the core of Free Speech Clause protections. 94 A lower court judge or a government official who reads these cases for guidance would, I think, read them as demanding only the conventional compelling-interest/narrow-tailoring analysis. 95
Strict scrutiny can be described as a "balancing test" only in the sense that it -- like most constitutional tests -- tries to strike a balance between the claims of the opposite sides. Government interests that are not compelling are outweighed by the free speech interest; if the interest, however, is compelling and the law is narrowly tailored to it, the balance comes out in the other direction. At least this is what is suggested by the language of the test and the Court's description of how it applies the test.
If one departs from this conventional model, and injects an extra balancing element -- an inquiry into whether the need to serve the compelling government interest is outweighed by the need to protect free speech -- then this element will become the true focus of the inquiry. This is where a court would have broad discretion to strike down a law. Silently packing the discretion into either the "compelling state interest" prong or the "narrow tailoring" prong will only confuse. Better to come out and say that narrow tailoring to a compelling interest isn't the whole story, and that there is an additional test the law must meet.
2. Strict Scrutiny as Presumption or as Non-Exclusive Guide
Some other readers have suggested that strict scrutiny might have been meant only as a presumption: Applying strict scrutiny yields the first cut at an answer, but the presumption might be rebutted, either by the challenger or by the state. Or perhaps the presumption is conclusive one way but rebuttable the other -- being narrowly tailored to a compelling interest is necessary for a law to be valid but not sufficient. Finally, perhaps strict scrutiny is not really a rule but is rather a guide for legislators and lower courts in exercising their judgment: It reminds them that they should consider various things in their decisionmaking -- whether the law advances a compelling interest, whether it's overinclusive, whether it's the least restrictive means, and whether it's underinclusive -- but does not purport to set forth an exhaustive list.
As with balancing, though, this is not what the Court says. "To determine whether [a restriction is constitutional]," the Court tells us, "we must ascertain whether it burdens the exercise of political speech and, if it does, whether it is narrowly tailored to serve a compelling state interest." 96 Once that latter determination is made, the Court says the law is valid. Many cases say the test is whether the law is narrowly tailored to a compelling state interest -- I've seen none that say this is just the start of the inquiry.
Perhaps legislators, given their independent obligation to construe the Constitution, might conclude that a law is unconstitutional even though it passes strict scrutiny. But nothing in the Court's opinions suggests that lower courts have the same option. A strict-scrutiny-as-presumption approach might be better than the current one, though a court that accepts it would then have to decide what it takes to rebut the presumption. It is not, however, the approach prescribed by the Court's decisions.
My conclusion, then, remains: Strict scrutiny, as the Court has described it, does not reach the correct result in the examples given above.