When the government regulates the time, place, or manner of speech, it must satisfy intermediate scrutiny and prove that (1) it has a significant interest, (2) the regulation is narrowly tailored, and (3) ample alternative channels of expression remain open. This article advocates simplifying and improving this test in First Amendment jurisprudence by replacing the often-confused second and third prongs with the far less deferential and much more rigorous undue-burden test embraced by the U.S. Supreme Court in 2016 in the abortion-regulation case of Whole Woman’s Health v. Hellerstedt. Incorporating the undue-burden standard maintains intermediate scrutiny’s balancing framework while simultaneously adding significant muscle, in free-speech-friendly fashion, to the test. First Amendment law long has borrowed from other constitutional domains, the article explains. Under this fact-intensive, benefits-and-burdens tack to intermediate scrutiny, the government must provide extensive factual evidence to support its claims, and courts, in turn, must refrain from deferring to lawmakers’ unsubstantiated assertions.
Clay Calvert & Minch Minchin, Can the Undue-Burden Standard add Clarity and Rigor to Intermediate Scrutiny in First Amendment Jurisprudence? A Proposal Cutting Across Constitutional Domains for Time, Place & Manner Regulations, 69 Okla. L. Rev. 623 (2017)