Thomas A. Berry
Thomas A. Berry

The Supreme Court has heard two cases in the last week that implicate weighty First Amendment questions. On Friday, the justices heard arguments in TikTok v. Garland, a challenge to a law that could force TikTok to shut down in just three days. And yesterday, the Court considered Free Speech Coalition v. Paxton, a lawsuit challenging a Texas law that mandates strict “age-gates” (such as ID scans) for websites with adult content.
A running theme in both arguments was the application of First Amendment “standards of scrutiny.” These three standards, also known as the “tiers” of scrutiny, are “rational basis,” “intermediate scrutiny,” and “strict scrutiny.” As the terms suggest, rational basis is the laxest form of judicial review (by far), and strict scrutiny is the most searching form. Which form of scrutiny to apply in a particular case is determined by various legal doctrines that attempt to categorize different types of speech restrictions. For example, a law that treats some speech less favorably based on the content of that speech must be subjected to strict scrutiny.
The justices’ questions, especially in the Texas age-gating case, suggest that they are grappling with the relative risks and merits of two approaches to judging First Amendment challenges. Should the outcome of most cases be determined by the choice of which scrutiny to apply, or should the outcome be determined by the application of scrutiny to the facts of that particular case?
It’s safe to say that the outcomes of First Amendment cases are frequently (but not always) determined by the choice of which tier to apply. Strict scrutiny is so difficult for the government to overcome that law professor Gerald Gunther famously called it “strict in theory, fatal in fact.” And on the opposite end of the spectrum, rational basis is so deferential that it’s nearly impossible for the government to lose.  » Read More
https://www.cato.org/blog/supreme-court-grapples-free-speech-scrutiny