Also known as:narrowly specific · narrow tailoring · narrow construction
Written by attorneys — see sources below.
A First Amendment requirement that government regulations burdening protected speech or assembly be drawn with precision to advance their asserted objectives without sweeping in substantially more expression than necessary.
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How its tested
Common Examples
6
Trial Closure Order
A district judge ordered the closure of a high-profile espionage trial after receiving a general national-security letter from prosecutors. Nyah Ndlovu, a reporter for a legal news service, challenged the order. The court of appeals vacated the closure because the judge had made no particularized findings showing that less restrictive alternatives would fail to protect the asserted interest.
Abortion Regulation Challenge
State law required a married woman to notify her husband before obtaining an abortion and imposed related speech restrictions on clinics. Nia Nkosi, a patient seeking the procedure, sued. The court struck down the spousal-notification rule because the state had not shown that the measure was the least burdensome means of advancing its interest in potential life.
Planned Parenthood of Southeastern Pennsylvania v. Casey505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992)
The Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989, established several requirements governing the performance of abortions within the Commonwealth.
The Act required a woman seeking an abortion to provide informed consent after receiving specific information from a physician or counselor at least twenty-four hours before the procedure. It mandated that a minor obtain the informed consent of one parent, subject to a judicial bypass option. It further required a married woman to sign a statement confirming that she had notified her husband of her planned abortion, unless certain exceptions applied. The Act also imposed reporting obligations on facilities providing abortion services and defined a medical emergency exception to the various requirements.
Before any of these provisions took effect, the petitioners brought suit in the United States District Court for the Eastern District of Pennsylvania. The petitioners were five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services. They sought declaratory and injunctive relief and challenged each provision as unconstitutional on its face.
The District Court entered a preliminary injunction. After conducting a three-day bench trial, the District Court held all the provisions unconstitutional and entered a permanent injunction against their enforcement by Pennsylvania.
The Court of Appeals for the Third Circuit affirmed in part and reversed in part. It adopted the District Court's factual findings and legal analysis except with respect to the spousal notification requirement. The Court of Appeals upheld the spousal notification requirement as constitutional and applied the undue burden standard in evaluating the provisions.
The Supreme Court granted certiorari to consider the constitutionality of the challenged provisions of the Pennsylvania statute.
A city banned ritual animal sacrifice while permitting other forms of animal killing and imposed related speech restrictions on religious announcements. Naveen Nanda, a priest in a Santería congregation, sought an injunction. The court invalidated the ordinance because it singled out religious conduct and was not narrowly drawn to address public-health concerns.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993)
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.
A city ordinance prohibited possession of operable handguns in the home and imposed related speech restrictions on self-defense advocacy. Neville Norton, a resident who kept a firearm for self-defense, brought suit. The court held the ban invalid because it was not narrowly tailored to any governmental interest in public safety.
District of Columbia v. Heller554 U.S. 570 (2008)
The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for one-year periods.
District of Columbia law also requires residents to keep their lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device unless they are located in a place of business or are being used for lawful recreational activities.
Respondent Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of functional firearms within the home.
The District Court dismissed respondent's complaint. The Court of Appeals for the District of Columbia Circuit reversed, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense. The Court of Appeals directed the District Court to enter summary judgment for respondent.
The Supreme Court granted certiorari.
Federal regulations required cable operators to carry local broadcast stations. Nordic Ventures, a cable system owner, challenged the rules. The court upheld the requirements after finding they were narrowly drawn to advance the government's interest in preserving free television.
Turner Broadcasting System v. Federal Communications Commission512 U.S. 622 (1994)
In the late 1940s cable systems were first built to bring clear broadcast television signals to remote or mountainous communities. Modern systems with capacity for dozens or hundreds of channels came to compete directly with over-the-air broadcasters as an independent source of programming.
Cable operators own the physical transmission facilities and select programming from outside sources including local and distant broadcast stations as well as national networks such as CNN, MTV, and ESPN. They charge subscribers monthly fees. Broadcasters transmit signals over the air at no charge to viewers and rely on advertising revenue.
On October 5, 1992, Congress overrode a presidential veto to enact the Cable Television Consumer Protection and Competition Act of 1992. Sections 4 and 5 impose must-carry obligations on cable systems. Section 4 requires systems with more than twelve active channels and more than three hundred subscribers to set aside up to one-third of their channels for local commercial broadcast stations requesting carriage. Systems with twelve or fewer channels must carry three such stations. Section 5 imposes parallel requirements for local noncommercial educational stations. It mandates carriage of one to all requesting stations depending on system size. Carriage must be continuous, on the same channel position, and without charge to the broadcaster.
Congress enacted the 1992 Cable Act after three years of hearings and recited its conclusions in the statute itself. It found that more than 60 percent of television households subscribe to cable. Cable operators enjoy monopoly power because of local franchising requirements and the expense of building competing systems. Vertical integration and horizontal concentration give operators both the incentive and ability to drop or reposition local broadcast signals in favor of affiliated programmers. This threatens the economic viability of free local broadcast television.
Soon after the Act became law, numerous cable programmers and cable operators filed five consolidated actions in the United States District Court for the District of Columbia against the United States and the Federal Communications Commission. They challenged the must-carry provisions as violations of the First Amendment. A three-judge district court granted summary judgment in favor of the government and intervenor-defendants. The court ruled that the provisions are content-neutral economic regulation that survives intermediate scrutiny. Judge Williams dissented. The Supreme Court noted probable jurisdiction on direct appeal.
A village ordinance required every charitable organization to obtain a permit before soliciting door-to-door. Neil Nair, a canvasser for a nonprofit, was denied a permit because the group refused to disclose its administrative costs. The court struck down the disclosure requirement because it was not narrowly drawn to prevent fraud.
Village of Schaumburg v. Citizens for a Better Environment444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), reh. denied 445 U.S. 972, 100 S.Ct. 1668, 64 L.Ed.2d 250
The Village of Schaumburg is a suburban community located 25 miles northwest of Chicago, Illinois. On March 12, 1974, the Village adopted an ordinance regulating the activities of peddlers and solicitors. Every charitable organization that solicits or intends to solicit contributions from persons in the village by door-to-door solicitation or the use of public streets and public ways must apply for a permit prior to such solicitation. The ordinance prohibits solicitation without a permit and imposes a fine of up to $500 for each offense.
It further requires that permit applications contain satisfactory proof that at least seventy-five percent of the proceeds of such solicitations will be used directly for the charitable purpose of the organization. Salaries or commissions paid to solicitors and administrative expenses of the organization, including salaries, attorneys' fees, rents, telephone, advertising expenses, contributions to other organizations, and related overhead items, are excluded from the definition of charitable purposes.
Citizens for a Better Environment is an Illinois not-for-profit corporation organized for the purpose of promoting the protection of the environment. It is registered with the Illinois Attorney General's Charitable Trust Division and has been afforded tax-exempt status by the United States Internal Revenue Service. The Village denied CBE a permit because it could not demonstrate that seventy-five percent of its receipts would be used for charitable purposes as defined. CBE then sued the Village in the United States District Court for the Northern District of Illinois.
In its amended complaint, CBE alleged that it was organized to protect the Illinois environment. Its canvassers engage in door-to-door activity to distribute literature on environmental topics, answer questions, solicit contributions, and receive grievances. The Village's answer alleged that CBE is primarily devoted to raising funds for the benefit and salary of its employees. The Village also alleged that more than sixty percent of the funds collected by CBE have been spent for benefits of employees and not for any charitable purposes.
CBE moved for summary judgment and filed affidavits describing its purposes and the activities of its canvassers. The affidavits stated that in 1975 the organization spent 23.3 percent of its income on fundraising and 21.5 percent on administration, with similar figures in 1976. The Village opposed the motion but filed no counteraffidavits. The District Court awarded summary judgment to CBE, declaring the seventy-five percent requirement void on its face and enjoining its enforcement. The Court of Appeals for the Seventh Circuit affirmed the judgment in 590 F. 2d 220 (1978). The Supreme Court granted certiorari in 441 U. S. 922 (1979) to review the Court of Appeals' determination.
What level of scrutiny requires narrow specificity?
Strict or intermediate scrutiny under the First Amendment demands that a regulation be narrowly tailored, meaning it must be drawn with narrow specificity to serve the asserted interest without burdening substantially more speech than necessary.
How does narrow specificity differ from overbreadth analysis?
Narrow specificity focuses on whether the government has chosen the least restrictive means. Overbreadth analysis asks whether the regulation reaches a substantial amount of protected conduct beyond its legitimate sweep.
Supporting sources
Does narrow specificity apply outside the First Amendment?
The phrase is used in free-speech and free-exercise cases under the First Amendment.
487 U.S. 654 (1988)
…infirmities, see, e. g. , Commodity Futures Trading Comm'n v. Schor , 478 U. S. 833, 841 (1986), and to that end we think a narrow construction is appropriate here. The termination provisions of the Act do not give the Special Division anything approaching the power to remove the counsel while an investigation or court proceeding…