NCJ Number
177886
Journal
Seton Hall Law Review Volume: 29 Issue: 4 Dated: 1999 Pages: 1197-1276
Date Published
1999
Length
80 pages
Annotation
This article explores the substance and implications of the doctrine of state interest of the highest order, as it applies to restrictions on speech.
Abstract
The strong speech-protective doctrine propounded in a pair of U.S. Supreme Court cases -- Smith v. Daily Mail Publishing and Florida Star v. B.J.F. -- prohibits the government from impairing First Amendment liberties absent "a need to further a state interest of the highest order." This doctrine clearly places the onus on the government to present an exceedingly persuasive need in order to interfere with an individual's expressive liberties. Part II of this article explores the evolution of this doctrine from its genesis in Wisconsin v. Yoder through its apotheosis as the majority's rule in Daily Mail and Florida Star. Part III breaks down the doctrine into its component parts in an effort to determine the meaning of "state interest of the highest order" by analyzing what interests have been found sufficient and insufficient to meet the doctrine's standards and by scrutinizing the requirements of the doctrine's narrow tailoring prong. Part IV chronicles the often inconsistent efforts of lower courts to apply the state-interest-of-the-highest-order doctrine, which has been invoked as a variant on the rational basis test and as a euphemism for traditional strict scrutiny. Part IV also outlines a number of lower court decisions that prescribe the proper application of the doctrine as a strong due process standard to protect civil liberties. It also discusses opinions of the Supreme Court that suggest ways in which the doctrine should be extended to safeguard First Amendment liberties. Part V explores the erratic jurisprudence and varying standards applied to justify restriction on First Amendment speech in the courtroom in order to serve the government's interest in justice. Part VI explores in greater detail the recent unsettling court-enforced speech restrictions, contending that such decisions are unjustified intrusions on fundamental speech liberties. Part VI proposes that government actors should be held to a single unifying due process standard that requires a state interest of the highest order and no other means to serve that interest before the government can restrict speech. Part VII concludes that only by consistently applying the state-interest-of-the-highest-order doctrine can courts ensure that First Amendment liberties are adequately protected from impairment by any branch of the government. 312 footnotes