Balancing Doctrine in the United States

An approach used by courts to weigh the adverse interests contained in a case. The balancing doctrine is most often used in those cases that involve a governmental action on the one hand and an asserted constitutional right on the other. The balancing doctrine presumes that constitutionally protected rights are not absolute and that governmental initiatives are probably acceptable. In this outlook, the balancing approach differs substantially from the “preferred position” view, which presumes that laws affecting protected rights are unconstitutional. The balancing approach is used to determine the extent to which governmental authority may be exercised to prevent society from substantial harm. The “clear and present danger test” is an example of a test used under the balancing doctrine.

See Also

Clear and Present Danger Test (Judicial Effects and Policies) Preferred Position Doctrine (Judicial Effects and Policies).

Analysis and Relevance

Use of a balancing test in certain individual rights situations reflects the view that individual rights are not absolutely protected. Rather, there are occasions when a public interest outweighs an individual’s liberty. The balancing approach is somewhat open-ended and leaves room for judges to make determinations on the basis of their own preferences. Balancing, however, is not often undertaken on an ad hoc basis, but is instead governed by certain guidelines depending on the nature of the case. Consider, for example, time, place, and manner restrictions. These are regulations imposed on the how, what, or where aspects of expression. The balancing question facing the courts is whether the public interest outweighs the expression interest of those subject to the regulation. The balancing done by the courts in time, place, and manner regulation cases is not wholly unguided, however. Time, place, and manner restrictions are evaluated by the courts using three principal criteria. First, any such restriction must be content neutral. That is, it cannot regulate expression on the basis of the expression itself, but only on the associated how, when, or where elements. Second, the state must be able to demonstrate a substantial interest for imposing the control. Restricting demonstrations from areas adjacent to hospitals or in-session schools would be such an interest. Finally, time, place, and manner restrictions must be sufficiently narrow in scope to allow alternative ways to communicate particular information. Restrictions that are so broad as to forestall all opportunities for expression will likely be invalidated by the courts.

Notes and References

1. Definition of Balancing Doctrine from the American Law Dictionary, 1991, California