Legal Definition of Strict Judicial Scrutiny
Not every governmental regulation implicating First Amendment or other fundamental rights is subject to strict judicial scrutiny.3 min read
2. How Individuals Can Use Strict Scrutiny
Not every governmental regulation implicating First Amendment or other fundamental rights is subject to strict judicial scrutiny. On the contrary, "[i]t is only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right that the strict scrutiny doctrine will be applied. [Citations.]" (Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 47.) "When the regulation merely has an incidental effect on the exercise of protected rights," the First Amendment is not implicated and the regulation need only be reasonable. (Ibid.; Zablocki v. Redhail (1978) 434 U.S. 374, 386-387 [54 L.Ed.2d 618, 631]; Gould v. Grubb (1975) 14 Cal.3d 661, 670.)
What Qualifies for Strict Scrutiny?
In order to satisfy strict scrutiny, a law must be neither vague nor substantially over- or underinclusive. (See Schad v. Mount Ephraim (1981) 452 U.S. 61, 71-74 [68 L.Ed.2d 671, 682-684]; City of Indio v. Arroyo (1983) 143 Cal.App.3d 151, 157.) It must further an overriding state interest yet be drawn with narrow specificity to avoid any unnecessary intrusion on First Amendment rights. (McIntyre v. Ohio Elections Com., supra, 514 U.S. at p. ___ [131 L.Ed.2d at p. 440]; H-CHH Associates v. Citizens for Representative Government (1987) 193 Cal.App.3d 1193, 1207.)
Those categories of speech and association related to campaigns for political office or issue-based elections reside at the core of the First Amendment. (McIntyre v. Ohio Elections Comm'n. (1995) 514 U.S. ___, ___ [131 L.Ed.2d 426]; Griset v. Fair Political Practices Com. (1994) 8 Cal.4th 851, 860.) "When a law burdens core political speech, we apply 'exacting scrutiny,' and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest. [Citation.]" (514 U.S. at p. ___ [131 L.Ed.2d at p. 440].)
How Individuals Can Use Strict Scrutiny
"Contributions by individuals to support concerted action by a committee advocating a position on a ballot measure is [sic] beyond question a very significant form of political expression." (Citizens Against Rent Control v. Berkeley, supra, 454 U.S. at p. 298 [70 L.Ed.2d at p. 500].) Often, it is the only means for individuals or private entities to influence the political process in any meaningful way. "[T]he practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process. . . . The tradition of volunteer committees for collective action has manifested itself in myriad community and public activities; in the political process it can focus on a candidate or on a ballot measure. Its value is that by collective effort individuals can make their views known, when, individually, their voices would be faint or lost." (Id. at p. 294 [70 L.Ed.2d at pp. 497-498].)
However, government action need not amount to a total ban on concerted activity before giving rise to heightened scrutiny. In Meyer v. Grant, supra, 486 U.S. 414 [100 L.Ed.2d 425, state legislation prohibited the use of paid signature gatherers for qualifying an initiative measure. The court applied strict scrutiny despite the fact the legislation did not preclude the use of independent signature gatherers (providing they were not paid for their services) or the gathering of signatures. It was enough that the legislation placed a more than incidental burden on protected activity.