Least Restrictive Means Test

Least Restrictive Means Test

The "least restrictive means," or "less drastic means," test is a standard imposed by the courts when considering the validity of legislation that touches upon constitutional interests. If the government enacts a law that restricts a fundamental personal liberty, it must employ the least restrictive measures possible to achieve its goal. This test applies even when the government has a legitimate purpose in adopting the particular law. The Least Restrictive Means Test has been applied primarily to the regulation of speech. It can also be applied to other types of regulations, such as legislation affecting interstate commerce.

In Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960), the U.S. Supreme Court applied the least restrictive means test to an Arkansas statute that required teachers to file annually an Affidavit listing all the organizations to which they belonged and the amount of money they had contributed to each organization in the previous five years. B. T. Shelton was one of a group of teachers who refused to file the affidavit and who as a result did not have their teaching contract renewed. Upon reviewing the statute, the Court found that the state had a legitimate interest in investigating the fitness and competence of its teachers, and that the information requested in the affidavit could help the state in that investigation. However, according to the Court, the statute went far beyond its legitimate purpose because it required information that bore no relationship to a teacher's occupational fitness. The Court also found that the information revealed by the affidavits was not kept confidential. The Court struck down the law because its "unlimited and indiscriminate sweep" went well beyond the state's legitimate interest in the qualifications of its teachers.

Two constitutional doctrines that are closely related to the least restrictive means test are the overbreadth and vagueness doctrines. These doctrines are applied to statutes and regulations that restrict constitutional rights. The Overbreadth Doctrine requires that statutes regulating activities that are not constitutionally protected must not be written so broadly as to restrict activities that are constitutionally protected.

The vagueness doctrine requires that statutes adequately describe the behavior being regulated. A vague statute may have a chilling effect on constitutionally protected behavior because of fear of violating the statute. Also, law enforcement personnel need clear guidelines as to what constitutes a violation of the law.

The least restrictive means test, the overbreadth doctrine, and the vagueness doctrine all help to preserve constitutionally protected speech and behavior by requiring statutes to be clear and narrowly drawn, and to use the least restrictive means to reach the desired end.

Further readings

Rotunda, Ronald D., and John E. Nowak. 1992. Treatise on Constitutional Law: Substance and Procedure. St. Paul, Minn.: West.


Chilling Effect Doctrine; First Amendment; Freedom of Speech; Void for Vagueness Doctrine.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
Flores, the Court stated that RFRA, by imposing a least restrictive means test, went beyond what was required by its pre-Smith decisions.
(64) These cases suggest that the least restrictive means test is a highly fact-based inquiry related to the continued efficacy and ability of the statute to achieve the government's objectives were the requested exemption to be granted.
United States Forest Service, (29) the Ninth Circuit concluded that even when the regulation aims to remedy safety concerns, it does not automatically justify burdening inmates' rights when analyzed under the least restrictive means test. (30)
2006) (rejecting dissent's assertion that least restrictive means test allows courts to second guess prison officials).
The Supreme Court recognized that deference should be given to prison officials, but neglected to articulate burden of proof necessary to meet least restrictive means test. See Cutter v.
Under RFRA's least restrictive means test, some, courts have upheld prison policies that censored potentially dangerous publications(201) without considering the alternative (used by another prison) of redacting the problematic portions.(202) One court entirely prohibited Native American sweat lodge ceremonies(203) due to safety concerns,(204) although other maximum security facilities allowed these ceremonies.(205) Several courts upheld hair regulations(206) despite the fact that numerous other prisons permitted long hair and beards, satisfying their penological interests in other ways.(207)
The court properly concluded that since this policy only deleted specific portions and did not ban the publications entirely, it satisfied RFRA's least restrictive means test.(233) Further, the court correctly remanded the case to the district court to determine whether specific redactions were valid under RFRA and the Constitution.(234) The court noted that the prison should not be "required to adduce specific evidence of a causal link between text that it wants to remove and actual incidents of violence."(235) While the court's statement should not be interpreted as permitting the prison to avoid supplying any support for its redactions, the prison should not have to produce evidence of an almost certain correlation between racist language and violence.
5, 1996) (concluding, without in-depth analysis of specific facts, that prison policy satisfied least restrictive means test); George v.
As a result, prison regulations of dubious validity and narrowness have easily passed muster despite RFRA's compelling interest and least restrictive means tests. This lack of skepticism has transformed RFRA's strict scrutiny into the de facto equivalent of minimal scrutiny.

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