What are the three levels of scrutiny used by courts to determine the constitutionality of?

If a law infringing upon First Amendment rights is content-neutral, the courts may uphold the law if there is a "substantial government interest" in the activity that the law seeks to prohibit. An example of this substantial government interest is found in a case involving Community for Creative Non-Violence that challenged a ban on camping in Lafayette Park across from the White House. The Court ruled that the ban furthered a substantial government interest in protecting parks for the enjoyment of millions of people. In this photo, Mitch Snyder, left, leader of Community for Creative Non-Violence, takes part in a demonstration for the homeless in Washington in 1988. (AP Photo/Dennis Cook, used with permission from the Associated Press)

The substantial governmental interest test is a part of the intermediate scrutiny analysis in First Amendment law. It represents a governmental interest more than a legitimate interest but less than a compelling governmental interest.

In modern constitutional law, there are three standards of review: (1) strict scrutiny; (2) intermediate or heightened scrutiny; and (3) rational basis. Strict scrutiny is the highest level of judicial review. Under it, the government must advance a compelling, or extremely important interest, often advanced in the least-speech restrictive way possible.

Under intermediate scrutiny, government must show a substantial government interest

Intermediate scrutiny means that the government must advance a substantial or important governmental interest in a narrowly tailored way or a way that does not substantially burden more speech than necessary.

Rational basis, the most deferential form of review for the government, means that the government must also have a legitimate interest that is rational and non-arbitrary.

In First Amendment law, regulations on speech are often analyzed as to whether they are content-based or content-neutral. Content-based regulations are subject to strict scrutiny, while content-neutral regulations are subject to intermediate scrutiny.

Court has different versions of intermediate scrutiny in First Amendment cases

The U.S. Supreme Court has different versions of intermediate scrutiny in First Amendment jurisprudence. Three common examples are the general content-neutral test, the O’Brien test for when speech and non-speech are connected together, and the Central-Hudson test for commercial speech regulations.

Under all of these versions of intermediate scrutiny, the government must show that its speech regulation meets a substantial or important governmental interest.

An example of when the U.S. Supreme Court utilized the substantial governmental interest test was its decision in Clark v. Community for Creative Nonviolence (1984). In that decision, the Court upheld a ban on sleeping in public parks in Washington D.C. The Court ruled that the ban on sleeping was a content-neutral regulation on expression that furthered the government’s substantial governmental interest in keeping public parks and property in “an attractive and intact condition.”

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2019.​

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Courts Apply the Rational Basis, Intermediate Scrutiny, and Strict Scrutiny Tests to Determine whether a Government Law or Action is Constitutional

Depending on the circumstances, courts apply different tests to determine whether a law (or government activity) is Constitutional or not.

Three frequently used tests are the rational basis, intermediate scrutiny, and strict scrutiny tests.   The video below discusses the tests.  After watching the video  you can read examples of where courts have recently applied these tests to determine the Constitutionality of a law or government activity. 

Remember, not all courts always agree on which test should be applied in each circumstance.  Also, different courts might define and apply the tests slightly differently.

Rational Basis: The Easiest Test for the Government

What is the Rational Basis test?

The rational basis test is the easiest test for the government. The plaintiff will need to prove that the law is not rationally related to a legitimate government interest. Otherwise, the law is Constitutional.  If a court applies the rational basis test, the government is likely to win the case

When do courts apply the test?

Courts typically apply the rational basis test if no fundamental right is involved and no ‘suspect class’ is involved. That is, no one is arguing that a fundamental right is being jeopardized or someone is being discriminated against based on race or religion.

Gallinger v. Bacerra, 898 F.3d 1012 (9th Cir. 2018)

Ninth Circuit applied rational basis test to Constitutionality of California law which allowed peace officers to carry guns on school grounds but not persons who held permits to carry concealed firearms.  Because the law did not significantly impair Second Amendment rights the Court applied the rational basis test and affirmed that plaintiff failed to show that the law was unconstitutional.  Law was rationally related to a legitimate goal of protecting public safety.

Winston v. City of Syracuse, 887 F.3d 553 (2d Cir. 2018)

The Second Circuit Court of Appeals applied rational basis review to, among other things,  a city’s policy of allowing landlords/property owner to open water accounts but denying the same rights to tenants.  In applying rational basis the Court explained that the policy did not affect a suspect class – – there was no discrimination based on race or other grounds – – and opening a water account is not a fundamental right.  City’s reasons for treating property owners and tenants with respect to opening water accounts passed rational basis review.

Box v. Planned Parenthood of Indiana (Supreme Court 2019)

The Supreme Court held that the rational basis test would apply to an Indiana law governing disposal of fetal remains.  Finding that the law did not interfere with the right of women to have an abortion and that the state has a legitimate interest in the proper disposal of fetal remains the Supreme Court applied the rational basis test.  Even if the law was not perfectly tailored to accomplish the legitimate purpose, the law was at least rationally related to a legitimate purpose.

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… the law is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest…

Intermediate Scrutiny: A Greater Challenge for the Government

What is intermediate scrutiny?

Intermediate scrutiny is more challenging for the government but not as difficult a test as strict scrutiny. The state will need to show that the law has a significant or important purpose and is substantially or reasonably related to that purpose.  Note that some courts applying the test might require the law to be narrowly tailored to the purpose.

When do courts apply the test?

Courts typically apply the intermediate scrutiny test if the law interferes with – – but does not substantially interfere with a right – –  such as in certain Second Amendment cases limiting, but not significantly limiting, a person’s right to keep and bear arms.  The test has also been applied in cases where the government limits commercial speech and cases involving discrimination based on gender. The test was first applied in Craig v. Boren.

Vugo v. City of New York, 931 F.3d 42 (2d Cir. 2019)

Second Circuit applied intermediate scrutiny to law prohibiting video advertisements in certain for-hire-vehicles.  The Court applied intermediate scrutiny because the law discriminated against content in commercial speech.

Note that the Court explained that in applying the intermediate scrutiny test to commercial speech the Court should ask whether: (1) the expression is protected by the First Amendment; (2) the asserted government interest is substantial; (3) the regulation directly advances the government interest asserted; and (4) the regulation is no more extensive than necessary to serve that interest.

Corren v. Condos, 898 F.3d 209 (2d Cir. 2018)

Second Circuit applied intermediate scrutiny to law establishing limits on contributions to political candidates who accepted public financing.  The Court held that the law was Constitutional because it was closely drawn to accomplish a sufficiently important interest. 

Pena v. Lindley, 898 F.3d 969 (9th Cir. 2018)

Ninth Circuit applied intermediate scrutiny to California law intended to limit accidental discharge of handguns and to make handguns more traceable.  Finding that the law did not substantially impair the right to exercise one’s Second Amendment rights, the Court held that strict scrutiny would not apply and instead applied intermediate scrutiny.  The Court held that the law was Constitutional because the law achieved (1) a significant, substantial, or important government objective, and (2) there was a“reasonable fit” between the challenged law and the asserted objective.

Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019)

The Court held that intermediate scrutiny would apply to ban on openly transgender persons from serving in the military.

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…the challenged law must be substantially related to the achievement of an important governmental interest…

Strict Scrutiny: The Most Significant Challenge for the Government

What is strict scrutiny?

Strict scrutiny is the most challenging test for the government.  The state will need to show that the law is narrowly tailored to achieve a compelling government interest.  That is, even if the government has a compelling purpose, it must achieve the purpose in a narrowly tailored manner.  If there is a less restrictive way to achieve the government’s compelling purpose, such that there would be less interference with people’s rights, then law as written is probably unconstitutional.

When do courts apply the test?

Courts typically apply the strict scrutiny test when there is substantial interference with a fundamental right.  The test is often applied in cases involving discrimination based on race or gender and may also apply in cases where people have been deprived of core rights such as the right to vote.

Bethune-Hill v. Virginia State Board of Elections (Supreme Court 2017)

To the extent that race was the motivation behind drawing new lines for twelve legislative district, the Supreme Court held that strict scrutiny is appropriate test for whether the new lines are Constitutional.

Frudden v. Pilling, 877 F.3d 821 (9th Cir. 2017)

The Court (reluctantly) held that it was bound to apply strict scrutiny to a First Amendment challenge to a school uniform policy.  The school required that students wear a uniform that included a motto “Tomorrow’s Leaders” – – the purpose of the policy was to promote student achievement and discourage wealth-based bullying.   Finding that the law failed under strict scrutiny, the Court held, among other things, that there was no need to include the motto to achieve the policy’s purpose.   

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…the challenged law  must be narrowly tailored to serve a compelling interest . . .

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