Welcome back to SCOTUS Oral arguments and Opinions.

Today I want to examine a development that emerged from analyzing First Amendment cases from the 2024-25 Supreme Court term.

The development concerns levels of scrutiny, strict scrutiny, intermediate scrutiny, rational basis review.

Four cases this term suggest the Court may be rethinking how courts choose between these standards.

This matters enormously because the level of scrutiny often determines constitutional outcomes.

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Before diving in, let me update you on Supreme Court scheduling.

The Court has set oral arguments for the upcoming 2025 term during the first two weeks of October and the first two weeks of November.

I'll analyze those cases in detail as we get closer to the argument dates.

Meanwhile, the Justices face a busy September 29th conference, where they'll review roughly 2,000 petitions for Serdi orreri that have accumulated since their last conference in June.

Those upcoming cases will be decided under shifting constitutional frameworks.

The changes I want to discuss today didn't emerge from any single blockbuster decision.

Instead, they developed quietly across four First Amendment cases that each seem to apply familiar doctrine in unremarkable ways.

But when you examine these cases together, a pattern emerges that suggests something more significant may be happening.

To understand what might be changing, let me start with the constitutional foundation and then show you how the Court traditionally analyzed these issues.

The First Amendment's relevant text provides our starting point.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press.

Today's cases involve the Establishment Clause, the Free Exercise Clause, and the Freedom of Speech Clause.

But the constitutional text doesn't tell courts how strictly to review government actions that affect these rights.

That framework developed through decades of Supreme Court precedent.

Think of First Amendment doctrine as a road system.

Before this term, the Court used three main routes.

Established strict scrutiny serves as the closed road.

Content based laws, those that target speech based on communicative content, are presumptively unconstitutional and may be justified only if the government proves they are narrowly tailored to serve compelling state interests.

This strict standard proves nearly impossible to satisfy.

Legal scholars coined the phrase strict in theory, fatal in fact, because governments almost never survived this review.

When courts applied strict scrutiny to speech regulations, the government typically lost.

Justice Thomas once called strict scrutiny the most demanding test known to constitutional law, and here's what makes that assessment so stark.

According to Justice Thomas, the Court applied strict scrutiny to uphold a First Amendment law exactly once in modern history just once.

That case was Humanitarian law project in 2010 involving material support to foreign terrorist organizations.

Even then, the Court upheld the law only because of extraordinary deference to national security.

As a quick aside, some commentators have identified a few other cases where government action survives strict scrutiny.

Anticipating that people may disagree with his claim about strict scrutiny, in Footnote in Free Speech Coalition, Justice Thomas addressed one case that commentators would likely cite as a counterexample, Williams Yulee vs. Florida Barr.

Justice Thomas defused this counterexample by pointing out that Williams Yulee involved only a plurality opinion, not a majority opinion on strict scrutiny.

But whether it's one case or three cases doesn't matter.

For Justice Thomas's central point, strict scrutiny means fatal.

In fact, it almost always dooms the government action under review.

Intermediate scrutiny functions as fairly busy road with stop signs and traffic lights.

The Court applied the standard to content neutral regulations that burden speech under cases such as Turner Broadcasting.

These laws survived if they advance important governmental interests unrelated to the suppression of free speech and do not burden substantially more speech than necessary to further those interests.

This standard gave governments a fighting strict enough to protect speech, flexible enough to allow reasonable regulations.

Rational basis review operates as the highway.

The Court applied rational basis scrutiny to regulations of traditionally unprotected speech categories like obscenity, defamation, and true threats.

Government needed only to show a rational relationship between the law and a legitimate government interest.

Under this highly deferential standard, governments almost always won.

The beauty of the system lay in its simplicity and predictability.

Like following a Google Maps, lawyers could generally determine which standard applied by asking simple questions.

Does the law target speech based on content?

If yes, strict scrutiny applies.

Does the law burden speech incidentally, while regulating conduct?

If yes, intermediate scrutiny applies?

Does the law regulate unprotected speech?

If yes, rational basis applies?

I'm painting with broad strokes, but this system provided the basic roadmap that dominated constitutional litigation for decades.

Courts knew exactly which standard to apply, and lawyers could predict outcomes with reasonable confidence.

The system prioritized clarity and consistency over contextual judgment calls.

This system provided the basic roadmap that dominated constitutional litigation for decades.

Courts knew exactly which route to take, and lawyers could predict destinations with reasonable confidence.

But this term's cases suggest the court may be developing additional approaches, sometimes constructing bypasses that lead directly to strict scrutiny, other times finding alternate routes to avoid the usual constitutional roadblocks.

To understand how this works, let's start with the case that demonstrates the traditional system still operating as designed.

Catholic Charities Bureau versus Wisconsin labor and Industry Review Commission.

Here's the Wisconsin exempted religious organizations from unemployment taxes, but only if they operated primarily for religious purposes.

Wisconsin interpreted this requirement in a very specific way.

Religious organizations had to either actively try to convert people to their faith or limit their services exclusively to members of their own religion.

Catholic Charities couldn't meet either requirement.

Catholic teaching actually forbids using charitable work to recruit new Catholics.

Their mission says they help people because it's the right thing to do not to win converts.

And Catholic doctrine requires them to serve everyone who needs help, regardless of what faith they practice.

So under Wisconsin's interpretation, Protestant organizations that actively evangelized could qualify for the tax exemption.

Catholic organizations following their own religious principles could not.

In practical terms, Wisconsin's interpretation made tax exemptions depend on how organizations practice their faith.

The Court immediately recognized this as textbook denominational discrimination.

Wisconsin created a system where some religious organizations could qualify based on their theological approach, while others couldn't, even when both were genuinely following their faith traditions.

This triggered the constitutional road closure.

Framing the case as triggering the Establishment Clause and the Free Exercise Clauses, the Court applied traditional strict scrutiny.

Wisconsin faced the nearly impossible task of proving its religious line drawings served a compelling state interest through narrowly tailored means.

And just as the traditional framework predicted, Wisconsin lost decisively.

A unanimous court held that the Wisconsin Supreme Court's application of the statute to petitioners violates the First Amendment.

Catholic Charities proves that strict scrutiny still means strict scrutiny.

Wisconsin couldn't demonstrate that its theological distinctions served any compelling purpose, let alone through precisely crafted means.

Now let's see how the Court started.

Rerouted from an impending road closure to a road with traffic lights.

In TikTok vs Garland, Congress essentially banned TikTok unless ByteDance divests the platform to non Chinese owners.

Here, the Court faced a classic constitutional intersection, a law that targeted a specific speaker, clearly problematic under traditional First Amendment analysis.

TikTok argued this violated core principles against speaker based discrimination.

But instead of applying strict scrutiny, the Court found applied intermediate scrutiny.

Rather than treating this as content based speaker discrimination requiring strict scrutiny, the Court characterized the entire law as content neutral.

The Court's reasoning the government's primary justification targeted data collection, not speech suppression.

Congress wanted to prevent China from harvesting personal information from 170 million American TikTok users.

The court said this rationale neither references the content of speech on TikTok nor reflects disagreement with the message such speech conveys.

This characterization changed everything.

Instead of facing the constitutional road closure, the Court detoured to intermediate scrutiny.

And under that more forgiving standard, the government won.

The Court also applied an exception for speaker based distinctions.

While acknowledging that speech restrictions based on the identity of the speaker are all too often simply a means to control content, the Court said differential treatment becomes acceptable when justified by some special characteristic of the regulated speaker.

TikTok had such special characteristics.

Foreign adversary control combined with the ability to collect vast amounts of personal data from Americans.

These unique features justified treating TikTok differently from other social media platforms.

Notably, the Court emphasized the inherent narrowness of this holding, essentially saying this side road applies only to platforms with TikTok's specific combination of foreign control and data.

Now we reach the case that arguably constructed a bypass to intermediate Free Speech Coalition versus Paxton.

In this case, Texas passed a law requiring pornographic websites to verify users ages before showing sexually explicit content, more or less like showing an ID at a liquor store but online.

Under traditional analysis, this triggered the constitutional road closure.

The law clearly targeted speech based on sexual content, making it a textbook content based regulation.

But the Court paved a bypass that avoided road closure altogether.

The Court unveiled the partial protection theory.

The majority declared that this speech was unprotected to the extent the state seeks only to verify age.

The Court essentially said adults have no First Amendment right to view pornographic material without showing ID.

First.

The Court said accessing material without age verification isn't constitutionally protected, so any burden on adults only incidentally affects protected activity.

The Court framed the case under the rubric of o', Brien, a case normally reserved for incidental burdens on speech not read and other cases involving content based restrictions.

In doing so, the majority revealed its deeper concern.

The Court explained, explicitly worried that taking the traditional route, applying strict scrutiny would call into question the validity of all age verification requirements, even long standing requirements for brick and mortar stores.

Adopting the slippery slope argument, the Court expressed concerns about invalidating every law requiring ID to buy adult magazines at convenience stores.

Finally, we reach the case that arguably constructed a bypass to strict scrutiny.

Mahmoud vs Taylor Mahmoud did something different.

The Court paved a largely forgotten, overgrown old dirt initially trekked in 1972 in Wisconsin versus Yoder carved.

Montgomery County Schools in Maryland started using LGBTQ inclusive storybooks in elementary classes without giving parents opt out rights.

Muslim, Christian and Jewish parents sued clinicians claiming this violated their rights to direct their children's religious upbringing.

Here's the constitutional engineering problem the Court faced under the traditional route established in Employment Division versus Smith, these parents would likely end up on the highway to rational basis review and lose.

The Smith framework requires courts to first ask whether a challenge policy is neutral and generally applicable.

The school district's no opt out policy applied to everyone regardless of a religious belief.

It didn't target religion specific.

Under normal routing, this neutral, generally applicable policy would send the parents straight to the highway, where the school district would win easily.

But the court determined this case deserved road closure strict scrutiny where the school district would almost certainly lose.

So the court paved the old Yoder dirt road to ensure the parents could reach their proper constitutional destination.

The court invoked what it called the Yoder exception, referring to Wisconsin vs Yoder, the 1972 case involving Amish parents who wanted to pull their kids out of high school.

The court declared that when a burden holds the same character as that imposed in Yoder, courts can take this alternative route and proceed directly to strict scrutiny.

Yoder created this dirt road decades ago, but it was rarely used and largely forgotten.

After Smith established the dominant highway system in 1990, Smith's framework became the main thoroughfare that almost everyone used.

The old Yoder path became overgrown and difficult to navigate.

But this term the Court brought in the road crews to pave that forgotten route, making it a viable alternative to Smith's framework.

Here's the Court's explicit reasoning.

We need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny.

By taking the newly paved Yoder road, courts can skip Smith's preliminary analysis entirely and head straight to road closure.

Once the newly paved Yoder road delivered the case to road closure, strict scrutiny did the rest.

The school district faced the nearly impossible task of proving its no opt out policy served a compelling interest through narrowly tailored means.

The district couldn't meet this standard, so the parents won their preliminary injunction.

So what might this term tell us about the direction of First Amendment doctrine?

The Court appears to be moving away from the mechanical application of scrutiny levels that characterize the Reid era.

Instead of asking simply is this content based and automatically applying strict scrutiny, the Court now considers additional traditional government authority, institutional expertise, and competing constitutional values.

This shift manifests in several ways.

In Catholic Charities, the Court applied traditional strict scrutiny forcefully, suggesting that when denominational discrimination is clear, the old framework remains robust.

But in the other three cases we see more flexible approaches.

TikTok demonstrates the Court's willingness to characterize regulations as content neutral when national security interests are at stake, even when the law targets a specific speaker.

The Court emphasized the inherent narrowness of this holding, but but it still represents a departure from more rigid speaker based discrimination analysis.

Free Speech Coalition reveals perhaps the most significant doctrinal the partial protection theory.

The Court essentially carved out an exception to strict scrutiny for traditional regulatory mechanisms, even when they target speech based on content.

The majority explicitly worried that rigid application of strict scrutiny would invalidate long standing, widely accepted practices like in person age verification.

Mahmoud suggests the Court may be willing to expand strict scrutiny protection in religious contexts, even when doing so requires following old roads.

These cases suggest the Court is developing what we might call contextual constitutionalism, an approach that considers not just doctrinal categories but also practical consequences, historical practices, and institutional relationships.

This term doesn't necessarily mark a complete revolution in First Amendment doctrine, but it does signal important shifts in constitutional methodology.

The Court appears less willing to let categorical rules produce results it considers problematic, whether that means invalidating traditional age verification requirements or preventing parents from protecting their children's religious upbringing.

The changes create both opportunities and uncertainties for constitutional litigants.

On one hand, the Court showed flexibility in applying scrutiny levels, which might benefit parties whose cases don't fit neatly into traditional categories.

On the other hand, this flexibility makes outcomes less predictable and forces lawyers to make more complex arguments about context and consequences.

Rather than relying on clear doctrinal rules for practitioners, these cases suggest several strategic considerations.

First, traditional strict scrutiny remains potent when clearly applicable, Catholic charity shows the Court will still strike down obvious religious discrimination.

Second, framing matters enormously.

The difference between content based and content neutral characterization often determines the scrutiny level and thus the outcome.

Third, historical practice and institutional competence now appear to influence constitutional analysis more explicitly than before.

The Court seems to be acknowledging what critics of rigid formalism have long that mechanical application of constitutional rules sometimes produces absurd results that undermine the Constitution's broader purposes.

Whether this more flexible approach ultimately strengthens or weakens constitutional protection depends on how carefully the Court applies these contextual considerations.

What's certain is that First Amendment doctrine became more complex and fact specific.

The days of simply asking, is this content based?

And applying predetermined scrutiny levels appear to be ending.

Instead, constitutional analysis now requires deeper engagement with regulatory context, historical practice, and competing constitutional values.

The four cases I've discussed today show a Court grappling with how to maintain meaningful constitutional protection while accommodating legitimate government functions and traditional practices.

Time will tell whether this approach proves more effective than the mechanical framework it appears to be displacing.

Next time, I'll examine how these doctrinal shifts might affect future litigation strategies and what constitutional lawyers need to consider when crafting First Amendment arguments in this evolving landscape.

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