Strict in Theory, But Feeble in Fact? First Amendment Strict Scrutiny and The Protection of Speech

Professor Gerald Gunther famously declared strict scrutiny to be “‘strict’ in theory and fatal in fact” in 1972. Although Professor Gunther's pithy and influential slogan may have been a reasonably accurate characterization at that time, strict scrutiny in the realm of the First Amendment is now much less fatal to government regulation of expression. This article explores the beginnings of the strict scrutiny test and the underpinnings of its subsequent dilution. The article examines the multiple ways courts can avoid applying strict scrutiny and argues that compelling state interests are proliferating in a manner that is harmful to robust speech protection. It also critiques the lack of precision in narrow tailoring analysis. The article concludes that First Amendment strict scrutiny has serious weaknesses that threaten to undermine vigorous protection for expression and offers suggestions for increasing the rigor and precision of the doctrine.