Balancing Doctrine

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

Balancing Doctrine: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Balancing Doctrine. This part provides references, in relation to Balancing Doctrine, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Balancing Doctrine by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
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Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Balancing Doctrine and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Balancing Doctrine or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Balancing Doctrine and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Balancing Doctrine. Finding these decisions can be challenging. In many cases, researchers about Balancing Doctrine should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Balancing Doctrine when formerly requested by a designated government officer):

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