Exacting scrutiny is a form of close judicial review used by the U.S. Supreme Court generally to evaluate restrictions on speech in the area of campaign finance, election law and compelled disclosures. It appears to be a form of review somewhere between strict scrutiny and intermediate scrutiny.
The three traditional standards of review in constitutional law cases are strict scrutiny, intermediate or heightened scrutiny, and rational basis.
Strict scrutiny is most demanding review standard in First Amendment cases
Under strict scrutiny, the government must advance a compelling governmental interest often in the least restrictive means available. Admittedly, the court has not always been consistent in its articulation of strict scrutiny. Sometimes it requires that the challenged governmental method be the least speech restrictive means possible. Other times, it explains that the government regulation must be very narrowly tailored.
Under intermediate scrutiny, the government must advance an important state interest that is substantially related to its objectives. Meanwhile, under rational basis, the government need only advance a legitimate governmental interest.
Exacting scrutiny requires disclosure regimes to be ‘narrowly tailored’ but not ‘least restrictive means’
Exacting scrutiny appears to be closer to strict scrutiny than the other two forms. Justice Thurgood Marshall initially used the term in his dissenting opinion in San Antonio Independent School Dist. v. Rodriguez (1973), a case involving Texas’ system that disproportionally funded different school districts. Marshall wrote: “This Court has frequently recognized that discrimination on the basis of wealth may create a classification of a suspect character and thereby call for exacting judicial scrutiny.”
The Supreme Court used the term in a majority opinion for the first time in Buckley v. Valeo (1976), examining the constitutionality of various provisions of the Finance Election Campaign Act of 1971. In a per curiam opinion, the majority wrote that “the constitutionality [of a provision of the FECA] turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.”
The court’s latest iteration of exacting scrutiny occurred in Americans for Prosperity Foundation v. Bonta (2021), a case involving a California law that compelled the disclosure of those who donated to charities. The court clarified that exacting scrutiny is the First Amendment standard for cases involving compelled disclosure requirements. The court further explained that “[w]hile exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the government’s asserted interest.”
The court thus explained that under exacting scrutiny, the governmental regulation must be narrowly tailored but need not be the least speech restrictive means available.
Some consider exacting scrutiny more flexible for courts
Confusion remains as to what exactly is exacting scrutiny. Some posit that it is somewhere between strict and intermediate scrutiny. Others view it as synonymous with strict scrutiny. Still others view it as a type of strict scrutiny.
Legal scholar R. George Wright views exacting scrutiny as a unique form of constitutional review with potential for giving courts greater flexibility, writing: “The more general point is that on its own terms, exacting scrutiny offers greater built-in, formal, legitimate adaptability, or inherent flexibility, than does strict scrutiny, or than standard fixed intermediate scrutiny, or than any version of minimum scrutiny.”
This article was published in July, 2021. David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.