Also known as: less restrictive alternatives · least restrictive alternative · least restrictive alternatives · least restrictive means · LRA · least restrictive means test
Written by attorneys — see sources below.
A requirement under strict scrutiny that a government regulation burdening a fundamental right or employing a suspect classification must be the least intrusive means of advancing a compelling governmental interest. The government bears the burden of demonstrating that no other effective measure would achieve the interest with less intrusion on protected rights.
Congress enacts a statute requiring commercial websites to verify users' ages before displaying sexually explicit material and imposing criminal penalties for noncompliance. Parents can instead install filtering software on home computers to block such content. A court invalidates the statute because the filtering option achieves the government's interest in protecting minors without the same burden on adult speech.
A federal statute bars corporations from using general treasury funds for independent expenditures supporting or opposing candidates. The government asserts an interest in preventing corruption. A court strikes down the ban because disclosure requirements alone can address the interest without suppressing corporate speech.
Citizens United is a nonprofit corporation with an annual budget of about $12 million. Most of its funds come from donations by individuals, though it accepts a small portion from for-profit corporations. In January 2008, Citizens United released a 90-minute documentary film entitled Hillary: The Movie. The film mentions Senator Hillary Clinton by name and depicts interviews with political commentators, most of them critical of her. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making the film available through video-on-demand. In December 2007, a cable company offered to make Hillary available on a video-on-demand channel called Elections '08 for a payment of $1.2 million. The proposal was to make the film available to viewers free of charge. To promote the video-on-demand offering, Citizens United produced two 10-second ads and one 30-second ad. Each ad includes a short statement about Senator Clinton followed by the name of the movie and the movie's website address. Citizens United desired to promote the offering by running the advertisements on broadcast and cable television within 30 days of primary elections. Before the Bipartisan Campaign Reform Act of 2002, federal law prohibited corporations from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of a candidate in connection with certain federal elections. BCRA §203 amended the law to prohibit any electioneering communication. An electioneering communication is any broadcast, cable, or satellite communication that refers to a clearly identified candidate for federal office and is made within 30 days of a primary or 60 days of a general election when publicly distributed so that it can be received by 50,000 or more persons in a relevant state. Concerned about possible civil and criminal penalties for violating 2 U.S.C. §441b, Citizens United filed suit in the United States District Court for the District of Columbia in December 2007. It sought declaratory and injunctive relief, arguing that §441b is unconstitutional as applied to Hillary and that BCRA's disclaimer, disclosure, and reporting requirements are unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United's motion for a preliminary injunction and granted the Federal Election Commission's motion for summary judgment. The Supreme Court noted probable jurisdiction. The case was reargued after the Court requested supplemental briefs addressing whether Austin v. Michigan Chamber of Commerce and the relevant portion of McConnell v. Federal Election Commission should be overruled.
View caseA city denies a church's building permit unless the church agrees to reduce its size and parking. The church claims the condition substantially burdens religious exercise. A court holds the denial invalid because the city failed to show that denying the permit outright was the only way to serve its traffic and zoning interests.
A state denies unemployment benefits to a worker who refuses Saturday shifts on religious grounds. The state claims a need for uniform work rules. A court orders benefits paid because the state can grant a narrow exemption without undermining its interest in an orderly workforce.
A city bans ritual animal sacrifice while permitting other forms of animal killing. Practitioners of a religion that requires the practice challenge the ban. A court invalidates the ordinance because the city can pursue public health goals through narrower rules on sanitation rather than a total prohibition.
In April 1987 the Church of the Lukumi Babalu Aye, Inc., a not-for-profit corporation organized under Florida law in 1973 whose president is Ernesto Pichardo, leased land in Hialeah, Florida, and announced plans to build a house of worship, school, cultural center, and museum at which members would practice Santeria. Santeria originated in nineteenth-century Cuba as a fusion of Yoruba traditions and Roman Catholicism. It centers on animal sacrifice performed by cutting the carotid arteries, after which the animals are usually cooked and eaten except in healing and death rituals. The announcement prompted the Hialeah City Council to convene an emergency public session on June 9, 1987. At that session residents and council members voiced strong opposition to Santeria practices. The council then adopted Resolution 87-66 declaring opposition to religious acts inconsistent with public morals, peace, or safety and passed Ordinance 87-40 incorporating Florida's animal-cruelty statute that criminalizes unnecessary or cruel killing of animals. After the Florida attorney general issued an opinion that ritual animal sacrifice other than for food consumption violated state law, the council in August 1987 adopted Resolution 87-90 opposing ritual animal sacrifice. In September 1987 the council enacted three further ordinances. Ordinance 87-52 barred possession of animals with intent to use them for ritual sacrifice except by licensed food establishments. Ordinance 87-71 directly prohibited any person from sacrificing an animal within city limits. Ordinance 87-72 restricted slaughter of animals to properly zoned slaughterhouse premises while exempting small-scale commercial hog and cattle operations. The Church and Pichardo filed suit against the city and its officials in the United States District Court for the Southern District of Florida under 42 U.S.C. § 1983. They alleged that the ordinances violated their rights under the Free Exercise Clause. After granting summary judgment to the individual defendants on immunity grounds, the district court conducted a nine-day bench trial on the remaining claims and entered judgment for the city. The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam opinion. The Supreme Court granted certiorari.
View caseA state funds public schools primarily through local property taxes, producing large differences in per-pupil spending between wealthy and poor districts. Parents in low-wealth districts challenge the system as denying equal educational opportunity. A court upholds the system because the state shows that alternative funding formulas would not achieve its interest in local control as effectively.
The government bears the burden of showing that its chosen regulation is the least restrictive effective means of achieving a compelling interest. If the challenger identifies a plausible alternative, the government must demonstrate why that alternative would not suffice.
No. The principle applies whenever strict scrutiny is triggered, including free exercise claims, substantive due process challenges to parental rights in education, and certain equal protection claims involving suspect classifications.
The regulation survives strict scrutiny. The government must still prove that the interest is compelling and that the chosen means are narrowly tailored, but the absence of workable alternatives satisfies the least-restrictive-means prong.
No. Mere administrative inconvenience or added expense does not automatically defeat an alternative. The government must show that the alternative would fail to achieve the interest at all, not merely that it would be more burdensome to administer.
…of serving the asserted government interest; existence of an analogous, but more narrowly drawn, federal statute showed that “a less restrictive alternative is readily available”). Dissenting opinions Dissenting — Justice Blackmun 279 U. S. App. D. C., at 6, 7, 878 F. 2d, at 1463, 1467 (quoting DEA Final Order to the effect that total…