1994), the court applied intermediate scrutiny to a statute which required "producers of materials depicting sexually explicit acts to maintain certain records documenting the names and ages of the persons portrayed and to attach statements to the materials indicating where the records are located." The court found that if the regulation was related to the content of the speech of the individual materials, then strict scrutiny would apply. The US West court also held that for the government to pass the second prong (means test) of intermediate scrutiny for a First Amendment issue, the regulation must leave open "ample alternative channels of communication." Regulating Adult Entertainment The US West court held here that in order to pass the first prong (important government interest prong) of intermediate scrutiny for a First Amendment issue, the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” 1994), the Ninth Circuit Court of Appeals used intermediate scrutiny for a federal statute which prohibited telephone companies from providing video programming to subscribers. Below are a few First Amendment issues dealing with speechfor which courts have used intermediate scrutiny. The First AmendmentĬourts have also held that intermediate scrutiny is the appropriate standard for certain First Amendment issues. These cases may also refer to the level of scrutiny as "elevated scrutiny" or "realm of less than strictest scrutiny). children born out of wedlock) are also subject to intermediate scrutiny, according to Matthews v. In addition to statutes which discriminate based on gender, statutes which discriminate based on illegitimacy (i.e.
Since then, courts have found that gender is a protected class, and any statute which discriminates on the basis of gender must undergo the intermediate scrutiny test. In Craig, the Court created the intermediate scrutiny test and applied it to a statute which discriminated on the basis of gender. The Supreme Court created the Intermediate Scrutiny Test in Craig v. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.įurther courts will sometimes refer to intermediate scrutiny by other names, such as " heightened scrutiny," or as " rational basis with bite." When referred to by these names, courts will typically use the same two prongs used for intermediate scrutiny. and must do so by means that are substantially related to that interest.Īs the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than the rational basis test.further an important government interest.To pass intermediate scrutiny, the challenged law must: Intermediate scrutiny is only invoked when a state or the federal government passes a statute which negatively affects certain protected classes (this is described in further detail in the next section). Intermediate scrutiny is a test courts will use to determine a statute's constitutionality.
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