SCOTUS Upholds TikTok Ban: Read It For Yourself

CJColucci in reply to Jaybird

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That’s an excellent question. The prevailing jargon is that there are three, or maybe three and a half “levels of scrutiny” when assessing the constitutionality of legislation, usually applied in first amendment or equal protection cases.
First, there is “strict scrutiny,” which applies to explicitly content-based or viewpoint-based (there are subtle differences between the two that aren’t worth getting into) restrictions on speech or explicitly race-based classifications. Strict scrutiny requires that a restriction advance a “compelling government interest” (which can’t, in free speech cases, be based on the desire that people not come to accept the viewpoint being suppressed — so preventing people from coming to believe in communism doesn’t count) and that it be the “least restrictive means” of advancing that interest. (This is a big issue in the porn age verification case; is there another way to keep porn away from the kiddies without making it too hard for adults to get it?) If you apply strict scrutiny, you usually overturn things. The cliche is that “scrutiny is strict in theory but fatal in fact.”
Second is “rational basis” scrutiny, which applies to almost every other legislative classification (and all legislation classifies). This is a very forgiving standard. All you need is a “legitimate state interest”, and if a rational legislator could have thought the measure would advance that interest (even if no actual legislator actually relied on the rationale offered in court), then it stands. So a ban on truck loudspeakers survives a first amendment challenge because cutting down on noise is a legitimate interest and banning people from blaring out messages (of any type–if it banned only things like “Vote for Smith” you’d have a harder question) is a rational measure even if there are better ones available. This doesn’t sound like much, and it isn’t, but that’s not a bug, it’s a feature. If we applied anything stronger than rational basis scrutiny to most government action, nothing would ever get done and lawyers would be the richest people around until the economy crashed. When I said there were possibly three and a half levels of scrutiny, there is a rarely-applied test called “rational basis with teeth,” where the court looks a little harder at the offered justification. Courts seem to apply it when there is some lurking issue of whether the legislation is an ordinary mistake that the government is entitled to make or whether it might be the product of some improper animus. (It was applied in a case involving locations of group homes because the court thought it wasn’t merely zoning, but something to do with the mentally ill.)
That brings us to the third (or third and a half) level, “intermediate scrutiny.” That requires an “important state interest” and the means chosen to advance it must be “substantially related,” not merely rationally related, to advancing that interest. (It must also be, or at least seem, to be the actual purpose for the choice, not merely a purpose the legislature could rationally have been supposed to have.) It first showed up, if I recall correctly, in sex discrimination cases. Where it applies, you can’t second-guess the government. You have to give it some slack. But you can hold its feet to the fire more than you do under strict scrutiny.
So what is “intermediate scrutiny”? Hard to say beyond “I know it when I see it.” That’s likely why Justice Stevens thought the whole “levels of scrutiny” framework was just a clumsy attempt to formalize what was in actual practice, pretty sensible, if poorly articulated. (Justice Marshall advocated a “sliding scale” of scrutiny, a clumsy compromise between the the unduly formal three-ish tier test and “I know it when I see it.”)
I think this is a correct answer to your question. I don’t claim that it is satisfying. Or that it should be.Report