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ERIC Number: ED314764
Record Type: Non-Journal
Publication Date: 1989-Feb
Pages: 35
Abstractor: N/A
Reference Count: N/A
Least Restrictive Means.
Parker, Richard A.
The "least restrictive means" test, a frequently used tool for resolving First Amendment cases in federal courts, is designed to insure that state-imposed abridgement of free expression is limited to the narrowest scope and the least impact necessary to fulfill a compelling state interest. Analysis of the history of the test since its inception in 1876 shows long periods of disuse and several recent instances of inconsistent use and of misue of the courts. A detailed examination of the arguments of Supreme Court Justice Felix Frankfurter in the case of Shelton v. Tucker (1960) reveals that those arguments contained the seeds of two major challenges to the least restrictive means test: (1) that the judiciary should defer to legislative rationality; and (2) that statutes should be judged solely in terms of their effects rather than being called unconstitutional per se. A third challenge stemmed from the Court's identification of a classification system for forums of communication, which determined that the test should be applied only to communication articulated in quasi-public or "quintessentially" public forums. While standards like the least restrictive means test can theoretically insure constitutional rights, vigilant analysis and criticism of the uses of such tests is necessary to the survival of such rights. (One hundred fifty-two footnotes are included.) (MHC)
Publication Type: Speeches/Meeting Papers; Information Analyses; Historical Materials
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers - Laws, Policies, & Programs: First Amendment