Intermediate scrutiny is the First Amendment’s workhorse, yet it is often treated as a deferential formality. This Article argues that this view is outdated. At the Supreme Court and in the federal courts of appeals, intermediate scrutiny increasingly functions as structured proportionality review. Courts frequently demand record support, specify and weigh speech burdens, and ask whether comparably effective, less speech-restrictive measures are available.
The Article reconstructs intermediate scrutiny’s evolution and assesses its modern practice. It traces three cycles in Supreme Court doctrine: early stringency, O’Brien-era deference, and the modern proportionality turn. It then tests that modern cycle with an original dataset of 434 federal appellate decisions from 2006 to 2025. Across subfields, opinions treat intermediate scrutiny as a disciplined meansends inquiry with growing regularity. Claimants prevail in roughly 40 percent of these appeals, nearly 50 percent higher than in Ashutosh Bhagwat’s landmark 1983–2005 study. Read alongside the opinions’ reasoning, that shift reflects a doctrine that has moved beyond plausibility review and begun to function as a meaningful constraint.
Still, recent Supreme Court decisions underscore how contingent that development remains. TikTok Inc. v. Garland and Free Speech Coalition, Inc. v. Paxton illustrate how intermediate scrutiny can revert toward deference and splinter into siloed subtests. The Article responds with a standardized four-part framework that unifies the method across subfields, reduces fragmentation, cabins discretion, and helps entrench proportionality review as a feature of First Amendment doctrine.
