The Structure of Intermediate Review

Today, there are two well-established versions of intermediate review: stand- ard intermediate review, used for cases like gender discrimination or content-neutral regulations of speech in a public forum, and a heightened intermediate review standard used for content-based, subject-matter regulations of commercial speech under Central Hudson. Yet, in actual use, four other kinds of intermediate review tests have been formulated by the Court in some cases. These four should be viewed as “mutations” of the two kinds of intermediate review proper to apply. This Article discusses both the well-established versions of intermediate review, and the four variations on intermediate review applied by the Court.

This Article ultimately argues that the four mutated kinds of intermediate review should be rejected—the first three of these mutated anomalies should adopt standard intermediate review, and the fourth should adopt the established heightened intermediate review of Central Hudson.