Strict Scrutiny Research Articles

Brief Amicus Curiae of Gail Heriot and Peter N. Kirsanow, Members of the United States Commission on Civil Rights, in Their Private Capacities, in Support of Petitioner in Shea V. Kerry

This brief discusses whether Section 717 of Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972), 42 U.S.C. § 2000e-16(a), should be interpreted, despite its text, to permit the federal government to discriminate on the basis of race in hiring in order to eliminate racial “imbalance” in its workforce; and if so, whether Section 717 should be exempt from the ordinary requirement that racially discriminatory federal statutes must be subjected to strict scrutiny as discussed in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

Think of the Children: Using IIED to Reformulate Disturbing Speech Restrictions

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent. It then argues that courts have formulated the interest with a breadth that is flawed and antithetical to the First Amendment. It concludes by proposing that the state’s interest in protecting children from disturbing speech should be reformulated in the mold of intentional infliction of emotional distress.

Is Anyone Listening? The Politicization of the Judiciary and the Loss of Authority: An Initial Assessment

Our study initiates an effort to determine if the recent politicization of the U.S. Supreme Court had meant its opinions have less impact on the lower courts who are expected to follow its direction and on the impacted parties upon which its ruling are applied. It is our contention that the court has become increasingly politicized and this politicization has reduced the Courts influence in lower courts and affected parties. We begin our study with the examination of how a recent Supreme Court opinion, Fisher v. Univ. of Texas (570 U.S., 2013) has been applied in the lower and appellate federal courts. This opinion strengthened the application of strict scrutiny in affirmative action cases. It was a wellpublicized opinion and its directives were clearly stated in Justice Kennedy’s majority opinion. It called on courts to apply a ‘strong’ version of strict scrutiny not only to the objectives being sought but also to the means being utilized. Our initial examination of the diffusion of this precedent shows no influence on lower or appellate courts. But the opinions of the Court are not for the judiciary alone. Our second examination involves how affected parties are reacting to the dictates of the Court. Staying with Fisher, we conducted a survey of public university admission staffs to determine if they have adjusted their admissions processes in response to the Court. We were surprised to discover no reaction. It is clear, the message of Fisher has been lost. We conclude with a brief discussion of where this leaves the Court. Of the three branches of government, the American public has traditionally held the judiciary in the highest esteem. Unlike the two ‘political’ branches, Americans, even if they disagree with the Court, have respected its authority to render decisions that overturn a properly elected legislature or a executive operating under his official authority. But what if this were not the case? Instead, what if the American public and the officials in government viewed the Court as a third ‘political’ branch? Our research begins with an assumption: the judiciary, in general, and the U.S. Supreme Court, in specific, is undergoing a politicization process that has not been witnessed since at least the Court Packing Era of the 1930s. By politicization, we mean that the Court, in perception or reality, is basing its judgments not solely on the facts before the Court and the objective application of the law but instead ideological or partisan influence is having a significant impact on the rulings of the Court, irrespective of the facts or the law. This is a highly controversial assumption but we accept this as a given. In this work, instead of demonstrating the veracity of his assumption, our focus is on how such a politicization impacts both the diffusion of Court precedent throughout the judicial branch and also whether the politicization of the Court lessons its ability to influence the behavior of impacted parties within society. We believe that as the Court has become politicized its ability to having its rulings followed has declined. Our paper will proceed in the following manner: in part I we will discuss the recent scholarship suggesting a politicization of the U.S. Supreme Court and the process of diffusion of judicial opinions. In Part II we will detail our specific methodology including a brief description of the changing Court rulings on the used of affirmative action in the admissions process of public universities that led to the Fisher v. Univ. of Texas (570 U.S., 2013) ruling. In Part III we review the paucity of results from our study. In Part IV we offer concluding remarks.

The Right of States to Regulate in Risk-Averse Areas and the ECtHR Concept of Margin of Appreciation in the WTO US-Cool Article 21.5 Decision

This paper aims to explore the constituent grammars of the margin of appreciation as a concept, and the way it is used by world trade judges, as well as the reasons for, and the immediate and potential outcomes directly and indirectly arising from, the plea to the concept when deciding WTO disputes relating to domestic societal regulation. In doing so, it is particularly important to demonstrate, through a detailed analysis of GATT and WTO jurisprudence, that GATT/WTO judges have applied the necessity test in order to follow different political agendas at different times – and also using the necessity narrative in various ways, including the hypothetical aim to ‘discipline’ members to regulate in the least trade-restrictive way possible. Until the US-COOL Article 21.5 decision, under the TBT, world trade adjudicators, and especially the Appellate Body, added nuances to the necessity test with considerations related to the right of WTO members to regulate in order to set their own level of protection. The latest relevant interpretative development in US-COOL Article 21.5, namely the WTO Appellate Body’s plea for the margin of appreciation concept, may have interesting implications for future WTO jurisprudence. At least two scenarios are possible. Either the Appellate Body has tacitly suggested in this ruling that members have certain discretion in considering what could constitute a legitimate objective of a particular regulation. Or the Appellate Body’s interpretation implies that the permissible degree of regulatory discretion of members actually rather depends on the importance of the objective to a member, and not – or to a lesser extent – on its legitimacy, so the latter should not be placed under strict scrutiny.

Unprotected: Condoms, Bareback Porn, and the First Amendment

In November 2012, Los Angeles County voters passed Measure B, or the Safer Sex in the Adult Film Industry Act. Measure B mandated condom use by all porn performers in adult films produced within county borders and created a complex regulatory process for adult film producers that included permitting, mandatory public health trainings, and warrantless administrative searches. Shortly after its passage, Vivid Entertainment filed a lawsuit to enjoin the enforcement of Measure B, arguing that the Measure violated their First Amendment right to portray condomless sex in porn. In December 2014, the Ninth Circuit upheld the district court’s decision upholding the constitutionality of Measure B. Notably, the mainstream discourse surrounding the Measure B campaign, as well as the legal arguments put forth in the lawsuit, focused exclusively on straight pornography while purporting to represent all porn. As a result, an entire genre of condomless pornography went unrepresented in the discussion: bareback porn, which portrays intentional unprotected anal sex between men. Excluding bareback porn from the lawsuit represented a missed opportunity for Vivid in its challenge of Measure B. There are several political messages underlying bareback porn unique to that genre that might have resulted in the † The author received a law degree from the University of California, Berkeley, School of Law (Boalt Hall) in 2015. As a law student, the author worked as a Teaching Assistant in the First Year Legal Writing Program and served as a Senior Board Member of the Boalt Hall Women’s Association. The author also co-founded the Health Law Initiative, a student organization that partners with the East Bay Community Law Center and Bay Area hospitals to serve low-income populations related to their health, housing, and public benefit needs. She is grateful to Professor Melissa Murray, whose Regulating Sex & Sexuality course provided the impetus for this Comment. She would also like to thank Courtney Fraser for excellent editorial assistance. LANGNER_TO PRODUCTION (EJD EIC EDITS) 199 EDITED (DO NOT DELETE) 7/25/2015 11:29 AM 200 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE Ninth Circuit applying strict scrutiny instead of intermediate scrutiny, and might have ultimately helped Vivid successfully defeat the Measure. Now, if the condom mandate is extended statewide, as the Aids Healthcare Foundation hopes it will, producers of bareback may unfortunately be without recourse—it seems unlikely that a court would extend First Amendment protection to bareback pornography after declining to extend protection to straight condomless pornography. ABSTRACT 199 INTRODUCTION 200 I. MEASURE B 203 A. Measure B Supporters 204 B. Measure B Opponents 205 II. THE LAWSUIT 207 A. The District Court Decision 208 B. The Appeal 208 III. THE STATE-WIDE INITIATIVE 210 IV. GAY BAREBACK PORN 211 A. Background 212 B. Arguments Missed by the Straight-Focused First Amendment Framework 213 1. Liberating the gay community from the politics of respectability 213 2. Liberating the gay community from the stigma of HIV 217 V. GAY BAREBACK PORN & MEASURE B 220 CONCLUSION 223 199 INTRODUCTION 200 I. MEASURE B 203 A. Measure B Supporters 204 B. Measure B Opponents 205 II. THE LAWSUIT 207 A. The District Court Decision 208 B. The Appeal 208 III. THE STATE-WIDE INITIATIVE 210 IV. GAY BAREBACK PORN 211 A. Background 212 B. Arguments Missed by the Straight-Focused First Amendment Framework 213 1. Liberating the gay community from the politics of respectability 213 2. Liberating the gay community from the stigma of HIV 217 V. GAY BAREBACK PORN & MEASURE B 220 CONCLUSION 223

Off-Label 'Promotion' May Not Be Merely Commercial Speech

Most attorneys (whether in practice or academia) assume that pharmaceutical companies’ discussion and dissemination of information regarding “off-label” uses of prescription drugs (i.e., uses that have not been specifically approved by the Food and Drug Administration (FDA)) are inherently commercial in nature. Two aspects of the speech, however, suggest that it does not cleanly fall into the category of “commercial speech” for purposes of First Amendment analysis. First, most prescribers are not, in fact, purchasing drugs for their patients, and so conversations between pharmaceutical company representatives and prescribers are not directly linked to a commercial transaction the same way they are with an advertisement or sales pitch to an end consumer. Second, prescribers are “learned intermediaries,” charged by profession and law to research and weigh the range of potential risks and benefits of each product they prescribe for their patients, whether it is prescribed for an FDA-approved use or an off-label use. As a result, scientific and medical information is “inextricably linked” to any speech that would be considered merely commercial. Prior attempts to restrict speech that included both financially driven and noncommercial components have received exceptionally rigorous scrutiny when reviewed by the Supreme Court. This Article suggests that the current restrictions on some pharmaceutical company speech may be given what I shall call “enhanced intermediate” (or even strict) scrutiny, rather than the usual intermediate scrutiny given to restrictions of merely commercial speech, because of the unique professional and legal role played by prescribers.

Investigations and Litigation Follow S.S. El Faro Tragedy

On October 1, 2015, the U.S. flag cargo ship El Faro sank with all hands in the Atlantic Ocean east of The Bahamas, during Hurricane Joaquin. The casualty is under investigation by the U.S. Coast Guard and the National Transportation Safety Board. In response to claims by families of some of the 33 crew member, the vessel owner invoked the U.S. Shipowner Limitation of Liability Act. Events leading up to the tragedy will be given strict scrutiny in the coming months.

The Trouble with Racial Quotas in Disparate Impact Remedial Orders

Justice Scalia’s concurring opinion in Ricci v. DeStefano highlighted severe conceptual tensions between the Equal Protection Clause of the Fourteenth Amendment, which protects individuals from racial discrimination, and disparate impact liability, which protects racial groups from adverse effects. This year’s Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. suggested that disparate impact liability under the Fair Housing Act was constitutionally unproblematic because successful fair housing lawsuits over the past four decades have only led to race-neutral remedial orders enjoining the practice causing the disparate impact. This Article analyzes the constitutionality of another disparate impact remedy: the imposition of racial quotas. Employment lawsuits brought under Title VII of the Civil Rights Act of 1964 have resulted in such remedies, potentially opening the door to an as-applied constitutional challenge arguing that the imposition of these remedies violates the Equal Protection Clause. The outcome will likely hinge upon the standard of review. Many have argued that a deferential standard is appropriate in light of federal court decisions approving the use of race in census questionnaires, suspect descriptions, and school zoning. This Article challenges that notion, and argues that the proper standard is strict scrutiny.

The Structure of Modern Free Speech Doctrine: Strict Scrutiny: Intermediate Review, and 'Reasonableness' Balancing

The structure of modern First Amendment free speech doctrine has evolved consistent with the more formalized structure of doctrine under modern Equal Protection and Due Process review. This involves more explicit use of strict scrutiny, intermediate review, “reasonableness” balancing, and minimum rationality review. As discussed in Part II of this article, for regulations of free speech in a public forum or on individual private property, the Court uses strict scrutiny for content-based regulations and intermediate review for content-neutral regulations. As discussed in Part III, for regulations of speech in a government-owned non-public forum, or speech supported by government grants or subsidies, the Court uses strict scrutiny for viewpoint discrimination, and “reasonableness” balancing for subject-matter and content-neutral regulations.In some cases, certain kinds of speech do not trigger free speech protection at all. As discussed in Part IV, this includes cases of pure government speech or regulations of alleged symbolic speech that is viewed by the Court as involving conduct only. Other kinds of speech, like advocacy of illegal conduct, fighting words, or obscenity, get limited free speech protection: strict scrutiny for viewpoint discrimination, but otherwise no further free speech review, as discussed in Part V. When free speech principles do not apply, there is only then other kinds of constitutional review, such as minimum rationality review under the Due Process and Equal Protection Clauses for social or economic regulations not involving fundamental rights.In addition to these categories of speech, content-based regulations of certain kind of speech in a public forum trigger less than normal strict scrutiny review. As discussed in Part VI, this can involve regulations of commercial speech, speech by government employees on matters of public concern, or alleged tortious speech, such as defamation or invasion of privacy, among others. Special First Amendment free speech doctrines for cases of prior restraints, injunctions, vagueness, substantial overbreadth, and other such matters are discussed in Part VII.This overall structure is reproduced in an Appendix, Table 2 to this article. In Appendix, Table 1, the same standards of review used in First Amendment free speech cases are presented as used in other parts of constitutional interpretation. Together, Tables 1 and 2 provide a general summary of standards of review currently used by the Supreme Court in individual rights adjudication.

Supreme Court: Town's Sign Code Violates Church's Free Speech Rights; Strict Scrutiny Expanded

Supreme Court: Town's Sign Code Violates Church's Free Speech Rights; Strict Scrutiny Expanded

Amicus Brief -- Fisher v. University of Texas

The University of Texas at Austin’s affirmative action program, particularly its holistic review process, is based on the factually unsupported assumption that minority students from largely segregated schools are less qualified — and contribute less to educational diversity — than minority students who graduate from predominantly white high schools. This assumption is laden with the very stereotypes of African-American and Hispanic applicants that haunted the Jim Crow era, and “embraces the very ill that the Equal Protection Clause seeks to banish.” Fisher v. University of Texas, 758 F. 3d 633, 678 (7th Cir. 2014) (Garza, J., dissenting). The University’s argument simply cannot be reconciled with the core purpose of affirmative action, which the United States Supreme Court has held is to promote “values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.” Fisher v. University of Texas at Austin, 133 S. Ct. 2411, 2418 (2013). The University's affirmative action program is certainly not the way to stop discriminating on the basis of race. On these facts, to hold that the University’s program is narrowly tailored would be to render strict scrutiny “strict in theory but feeble in fact.” Id. at 2421. Ultimately, by abandoning a disproportionate emphasis on skin color, universities can finally begin to focus on what individuals have overcome, not what they cannot change.

Living donor liver transplantation in Taiwan-challenges beyond surgery.

Taiwan has a high prevalence of hepatitis B and C viral infections, and consequently a high burden of chronic liver diseases. Liver transplantation (LT) began in Taiwan in 1984, and living donor liver transplantation (LDLT) in 1994. Education and collaboration between physicians on a national and international scale were important factors in the development of transplantation in East Asia. Technical innovations in donor hepatectomy, vascular and biliary reconstruction, and interventional radiology, perioperative management of transplant patients and development of associated specialties have enabled achievement of excellent results after both adult and pediatric LDLT. The establishment of rigorous protocols to withstand strict medico-legal scrutiny, combined with technical excellence has contributed to excellent surgical outcomes. The socioeconomic development of Taiwan and the first nationwide hepatitis B vaccination program in the world have also contributed to the decrease in disease burden and improvement of quality of healthcare. This article examines the factors enabling the development of LT in Taiwan, the innovations that have contributed to excellent outcomes, and indicates the future prospects of LDLT in Taiwan.

The First Amendment Right to Record Images of Police in Public Places

Analyzing federal cases through May 2015, this Article examines the current, contested terrain of the emerging, yet qualified, First Amendment right to record police performing duties in public venues. The Article argues that multiple First Amendment interests, ranging from the watchdog role of the press to discovery of truth under the marketplace of ideas theory, mandate that the reasonable-restrictions standard, which is now deployed by most courts to decide if this nascent right may permissibly be abridged, be jettisoned in favor of a more rigorous, speech-friendly approach. Specifically, the Article advocates a form of judicial review akin to strict scrutiny. It also proposes a framework of analysis—a “Continuum of Necessity”—for adding consistency and teeth to this tack. The Article concludes by calling on the Supreme Court to quickly consider a right-to-record case to establish two key points: (1) the existence of a clearly established First Amendment right in 2015 to record police performing their duties in public places; and (2) any restrictions imposed on this right are permissible only if they are so narrowly tailored that no viable alternatives exist that would allow for greater ability to record police under the circumstances.

Vaccines, School Mandates, and California's Right to Education

California recently enacted Senate Bill 277, which abolishes the personal-beliefs exemption to school immunization requirements. One possible challenge to the law’s constitutionality is that it impermissibly limits the right to education. This Essay rebuts such positions. California’s jurisprudence regarding access to education applies to protected categories; it does not limit the ability of the state to impose health and safety regulations such as immunization requirements. Moreover, the requirement would withstand even strict scrutiny, if applied, because disease prevention in the school context is a compelling interest and there is no alternative that is as effective. Finally, the law actually protects the right of access to education for those whose parents do not have the luxury of choice, such as immune-compromised children, while still reasonably preserving parental choice overall.

Legislative Inconsistency and the 'Smoking Out' of Illicit Motives

US Constitutional law is often perceived to be an exceptional appearance in the landscape of comparative constitutional law. One main difference that is identified is that the US Supreme Court refuses to apply the proportionality test that is a central doctrinal instrument of fundamental rights jurisprudence almost everywhere else. This paper tries to show that this difference is, at least in part, overstated. Even proportionality courts do not exclusively rely on proportionality. This paper analyzes consistency arguments that are common in the case law of several proportionality courts. It examines cases from five different apex courts, arguing that the main function of consistency considerations is the “smoking out” of illicit motives. The paper first shows that the “smoking out” of illicit motives is a frequent element of the strict scrutiny test of the US Supreme Court. It then analyzes the function of consistency arguments in the jurisprudence of proportionality courts. It draws on examples from the UK Supreme Court, the Canadian Supreme Court, the German Federal Constitutional Court, the European Court of Justice, and the South African Constitutional Court. These courts use legislative inconsistency is an indication that the legislature also pursued different aims than the ones which were stated explicitly. In particular, the parliamentary majority may have been captured by interest groups, or it might have had incentives to discriminate against societal minorities.

Dimensions of Diversity and Perception of Having Learned From Individuals From Different Backgrounds: The Particular Importance of Racial Diversity.

Selective higher education institutions that take race into account in admissions decisions must be able to demonstrate that their policy is justified by a compelling governmental interest, is narrowly tailored, and is the least restrictive means for achieving that interest. The authors thus investigate whether, among medical students, the association between racial diversity (as distinct from other forms of diversity) and learning from individuals from different backgrounds is unique. The authors examined six dimensions of diversity, including racial/ethnic diversity, among the 2010, 2011, and 2012 cohorts of fourth-year medical students in the United States. They also examined students' responses to two Medical Student Graduation Questionnaire items pertaining to learning from individuals from different backgrounds. They modeled the association between each of the school-level dimensions of diversity and the student-level responses to having learned from others with different backgrounds, and they assessed whether associations vary across different groups of students. Racial/ethnic diversity is unique in its very strong association with student perceptions of having learned from others who are different. The association between racial/ethnic diversity and student perceptions of having learned from others who are different is especially strong for members of historically underrepresented minority groups. Compared with other forms of diversity, racial/ethnic diversity has a unique association with students' perceptions of learning from others who are different. This association is of particular relevance to admissions and diversity policies in an era of strict scrutiny of these policies.

Testing predictions of the energetic equivalence rule in forest communities

As growth rate is a reasonable proxy measure of the rate of resource use per plant individual, the ‘energetic equivalence rule’ predicts that net primary productivity (the rate of biomass production per unit area, NPP) will be independent of plant biomass and maximum population density in plant communities. However, only a few studies have tested these relationships in plant communities. In this study, we investigated allometric scaling of net primary productivity (NPP) to tree biomass (M) and density (N) across a range of tree-dominated communities in China. The aim was to test the universality of the ‘energetic equivalence rule’ (i.e. whether the exponents of these relationships take a universal value of 0) in forest communities. We used both ordinary least square (OLS) and standardized major axis (SMA) regression for selected boundary points, and quantile regression (QR) to estimate the slopes of regression lines. QR, OLS and SMA regression all showed that four NPP–M and two NPP–N exponents were different from 0 across the 8 forest types. In addition, when we combined all the data to determine a larger pattern that typifies Chinese forests, five out of the six exponents of NPP–M and NPP–N relationships deviated strongly from 0. Therefore the universality of the ‘energetic equivalence rule’ does not hold for forest communities at both the regional and the national scale of China. However, the “zero” exponent seems to be a central tendency for NPP–M and NPP–N relationships in 7 out of 8 forest types. Deviation from the energetic equivalence possibly reflects multiple, unsound assumptions for “an average idealized forest” by metabolic scaling theory, as well as unaccounted-for variations of site factors (e.g. stand age and stand conditions) within forest communities. In addition, our study suggested that statistical methods should be subject to strict scrutiny in testing the ‘energetic equivalence rule’.

Scrutinizing Diversity: Challenging the Premises of Affirmative Action

In Grutter v. Bollinger, the Supreme Court ruled that schools are allowed to make “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” This standard is called “strict scrutiny,” and strict scrutiny applies because the Equal Protection Clause of the Fourteenth Amendment prohibits treating people differently on the basis of race. TheGruttermajority claimed to apply “strict scrutiny” to affirmative action. I contend that the nine supposed educational benefits of student body diversity listed in Grutter are paltry, nonexistent, or worse. Significantly, several of the presumed educational benefits are predicated on negative stereotypes about Acad. Quest. (2015) 28:207–223 DOI 10.1007/s12129-015-9499-7

Scout's Honor: The Boy Scouts, Judicial Ethics, and the Appearance of Partiality

This article will consider the constitutionality of the California Judicial Boy Scout Ban. Because most states including California model their code of ethics after the Model Code of Judicial Conduct, these argument will also apply with equal force to other states that have bans on judicial membership in groups that engage in invidious discrimination. First, this article will look at the text and history of the California Judicial Canon of Ethics to show that the state has deliberately targeted the Scouts and other expressive associations. Next, this article will look at the wide range of constitutional rights that are substantially burdened by the canon, including freedom of association, free exercise, and parental autonomy. As a result, the proper standard of review is Strict Scrutiny, even though judges are public officials, and the State must justify the restriction by pointing to a compelling interest and employ the least restrictive means.To justify its restriction, the state argues that membership in a group such as the Boy Scouts which engages in invidious discrimination creates an appearance of partiality and bias. Gay and lesbians standing before a judge who is a member of the Scouts will have reason to believe that the judge cannot fairly administer justify. Moreover, the general public will lose confidence in the integrity and objectivity of the judiciary. However, as this article will show, avoiding a generalized appearance of impropriety cannot be a compelling governmental interest. Drawing on recent Supreme Court cases in the realm of campaign finance, this article will argue that avoiding a generalized appearance bias (as opposed to the appearance of specific bias against an actual party before the Court) cannot be a compelling governmental interest. Moreover, the California policy is also poorly tailored to achieve the state’s interest because it is both grossly over and underinclusive, and relies on a cynical view of the judiciary which undermines the state’s purported interest in public confidence in the system. Moreover, a wide variety of less restrictive alternatives exist.

Sunshinees Chill: Overboard American Open Meetings Laws and the Limits of Disclosure

In this Article, Prof. Mulroy examines “sunshine laws,” laws which require that meetings of legislative bodies be open to the public. All 50 U.S. States require that physical meetings, or even informal communications, among a quorum of a legislative body must be done pursuant to a publicly noticed meeting. Drawing a line at communication among a quorum is appropriate, because such private communications can effectively decide a question, rendering any subsequent public meetings a sham. But in 8 States, sunshine laws apply even to communications among only 2 or 3 legislators, far short of a quorum. These stricter laws impermissibly chill the free speech of legislators, hamper compromise, transfer power from elected officials to unelected staff and lobbyists, and cause other problems. In contrast, the open meetings laws of many Western countries are too lenient, applying only to formal meetings of legislators and not reaching communications among a quorum. Evaluating the constitutional, free speech implications of the overstrict U.S. sunshine laws raises a doctrinal question of whether such laws are content-based speech regulations triggering “strict scrutiny” constitutional review, or content-neutral regulations triggering only the more relaxed “intermediate scrutiny.” Thanks to a line of cases classifying otherwise content-based regulations as content-neutral if motivated by the “secondary effects” of speech, there is currently confusion in the U.S. legal system about whether one looks to the plain language of a speech restriction, or its underlying justifications, to make the content-based/content-neutral determination. Synthesizing recent U.S. Supreme Court case law, Prof. Mulroy proposes a restatement of the current law on making this content-based/content-neutral distinction, one which relies on the plain language of the speech restriction in all but a very narrow class of cases allowing a very limited “secondary effects” approach. More broadly, Prof. Mulroy proposes that the Supreme Court eliminate the “secondary effects” doctrine entirely, and adopt going forward a “purely facial” approach. A case currently pending before the Supreme Court raises this very question, and provides the Court such an opportunity for adopting such an approach.