Court’s Free-Speech Expansion Has Far-Reaching Consequences
Strict scrutiny requires the government to prove that the challenged law is “narrowly tailored to serve compelling state interests.” You can stare at those words as long as you like, but here is what you need to know: Strict scrutiny, like a Civil War stomach wound, is generally fatal.
“When a court applies strict scrutiny in determining whether a law is consistent with the First Amendment,” said Mr. Abrams, who has represented The New York Times, “only the rarest statute survives the examination.”
Laws based on the content of speech, the Supreme Court has long held, must face such scrutiny.
The key move in Justice Thomas’s opinion was the vast expansion of what counts as content-based. The court used to say laws were content-based if they were adopted to suppress speech with which the government disagreed.
Justice Thomas took a different approach. Any law that singles out a topic for regulation, he said, discriminates based on content and is therefore presumptively unconstitutional.
Securities regulation is a topic. Drug labeling is a topic. Consumer protection is a topic.
This would seem to be a move away from, say Cass Sunstein’s view of the first amendment as primarily protecting political discourse and towards one in which the first amendment can be transformed into a powerful business tool for corporations,.
But I may be wrong.
