CAPSULE SUMMARY

c. Freedom of expression:  Next, we move to the area of freedom of expression. If the government is impairing free expression in a content-based way, then the court will use strict scrutiny and will almost certainly strike down the regulation. In other words, if the government is restricting some speech but not others, based on the content of the messages, then this suppression of expression will only be allowed if necessary to achieve a compelling purpose (a standard which is rarely found to be satisfied in the First Amendment area). Similarly, any interference with the right of free association will be strictly scrutinized.

d. Freedom of religion/Free Exercise Clause:  Lastly, the court will use strict scrutiny to evaluate any impairment with a person’s free exercise of religion. Even if the government does not intend to impair a person’s free exercise of his religion, if it substantially burdens his exercise of religion the government will have to give him an exemption from the otherwise-applicable regulation unless denial of an exemption is necessary to achieve a compelling governmental interest.

3. Middle-level review:  Finally, here are the relatively small number of contexts in which the court uses middle-level review:

a. Equal protection/semi-suspect:  First, middle-level review will be used to judge an equal protection claim, where the classification being challenged involves a semi-suspect trait. The two traits which are considered semi-suspect for this purpose are: (1) gender; and (2) illegitimacy. So any government classification based on gender or illegitimacy will have to be “substantially related” to the achievement of some “important” governmental interest.

b. Contracts Clause:  Second, certain conduct attacked under the Obligation of Contracts Clause will be judged by the middle-level standard of review.

c. Free expression/non-content-based:  Finally, in the First Amendment area we use a standard similar (though not identical) to the middle-level review standard to judge government action that impairs expression, but does so in a non-content-based manner. This is true, for instance, of any content-neutral “time, place and manner” regulation.