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22 Nev. L.J. 1 (2021-2022)

handle is hein.journals/nevlj22 and id is 1 raw text is: 22 NEV. L.J. 1 SCRUTINY-DETERMINATION AVOIDANCE IN FIRST AMENDMENT CASES: LAUDABLE MINIMALISM OR CONDEMNABLE EVASION? Clay Calvert* This Article examines the United States Supreme Court's practice in First Amendment cases of not resolving the precise level of scrutiny that applies to measure a statute's validity. Rather than opting for one of two tiers of scrutiny one more rigorous than the other the Court sometimes dodges the issue. It does this by concluding that a statute would not pass muster under the more lenient standard, thereby rendering it unnecessary to decide which test was, in fact, more appropriate. The Court thus adopts an assuming-without-deciding logic in such cases, simply supposing the lesser standard applies without definitively holding as much. In turn, when lower courts confront uncertainty regarding the correct level ofscrutiny, they too sometimes avoid picking one standard of review by embracing this it wouldn't make any difference anyway brand of reasoning. This Article addresses why the Supreme Court engages in this practice. Addition- ally, it considers how this variety ofprocedural minimalism, which it dubs scruti- ny-determination avoidance, affects doctrinal development of the pivotal division between content-based and content-neutral laws. First Amendment scrutiny se- lection hinges largely on that distinction. Furthermore, this Article analyzes what the implementation of this minimalistic tack may indicate about the practical dif- ferences between the strict and intermediate scrutiny standards in their real- world application. TABLE OF CONTENTS IN TR O D U CTIO N ................................................................................................ 2 I. DODGING SCRUTINY DETERMINATIONS: THE NATION'S HIGH COURT PAVES THE PATH ..................................................................... 7 A. Scrutiny-Determination Avoidance as an Exercise in Judicial Minimalism and a Mechanism to Unite the Justices Around a Single O p inion ............................................................................ 8 * Professor of Law, Brechner Eminent Scholar in Mass Communication, and Director of the Marion B. Brechner First Amendment Project at the University of Florida in Gainesville, Fla. B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University. The author thanks students Amber Edney, Julia Gibson, and Natanel Wainer of the University of Florida for their assistance with this Article. 1

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