Also known as: least restrictive means test · narrow tailoring
Written by attorneys · grounded in primary & secondary sources — see below
A tailoring requirement in strict scrutiny review that the government must show its regulation is the least burdensome method of achieving a compelling governmental interest.
A local newspaper seeks access to a high-profile murder trial. The judge proposes closing the courtroom to protect witness identities. After reviewing alternatives such as partial redactions and limited protective orders, the court denies the closure because a less burdensome option exists that still safeguards the witnesses.
A city denies a building permit to enlarge a historic church. The church sues under RFRA. The city must prove that preserving the historic district is compelling and that denying the permit is the least burdensome way to achieve that goal rather than allowing modified designs.
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Federal law bars providing legal training to a designated foreign group. The organization challenges the ban as applied to its peaceful advocacy work. The government must demonstrate that the prohibition is the least burdensome method of preventing material support for terrorism.
A minor political party objects to donor disclosure rules. The government defends the requirement by showing that public disclosure is the least burdensome method of preventing corruption and informing voters compared with private reporting to regulators only.
A state requires spousal notification before an abortion. The clinic argues the rule burdens the woman's choice. The state must establish that the notification requirement is the least burdensome means of protecting potential life and marital integrity.
A federal statute bans indecent material on the internet accessible to minors. Providers challenge the law. The government must prove that the total ban is the least burdensome method of protecting children compared with user-based blocking software.
The test applies once a plaintiff shows a substantial burden on a fundamental right or protected conduct. The government then must prove both a compelling interest and that its chosen regulation is the least burdensome method of achieving that interest.
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Least restrictive means is the strictest form of narrow tailoring and requires the government to prove no less burdensome alternative exists. Intermediate scrutiny requires only a reasonable fit between the interest and the means, not the absolute least restrictive option.
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Yes. Courts have upheld regulations when the government demonstrates that every plausible alternative would leave the compelling interest unfulfilled or would impose equal or greater burdens on protected activity.
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The regulation fails strict scrutiny. The existence of any viable alternative that achieves the compelling interest with less burden on the right defeats the government's defense.
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…we note and agree with appellants' concession that disclosure requirements—certainly in most applications—appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist. Appellants argue, however, that the balance tips against disclosure when it is required of…