Uses of Balancing in First
Amendment Analysis
I. Individual Case Balancing
(ad hoc balancing)
a. Unweighted or pure balancing (both sides of the
scale begin at zero)
b. Weighted or tilted balancing (applying a standard
of review, such as strict scrutiny or intermediate scrutiny, to the
facts; the standard will tilt the scales by giving one side the benefit
of the weight of a presumption in its favor)
II. Category Balancing
a. Standard Selection Balancing (balancing the
competing interests in a category of speech in order to decide what
standard of review to apply to government infringement of speech within
that category; this is engaged in prior to I.b. above and once the
standard is selected (such as strict or intermediate scrutiny) it is
then applied to all instances of speech falling within that category)
b. Rule Creation Balancing (sometimes called
definitional or categorical balancing) (balancing is used to create a
rule to apply to a particular category of speech, as in New York Times v. Sullivan, which
rule gives protection to the speech within the category, but only under
particular circumstances or to an extent, but not all of the time; once
created the rule is then applied to all instances of speech falling
within that category)
c. Exclusionary Categorization (balancing of
competing interests results in a decision that a particular category of
speech is not protected by the First Amendment)