This article proposes that courts and lawmakers look to two factors to help determine whether a given law is necessary. First, they should evaluate the extent of the law’s history of disruption. To do this, they should ask whether the history is pervasive, whether it is egregious, whether it calls for immediate action, and whether it is particular. Second, courts and lawmakers should examine the degree to which the disruption impedes upon the government’s interest. If logic dictates that the government cannot advance its interest so long as the prohibited conduct persists, then the government does not need to show that its interests have historically been harmed.
Preventing Conflict or Descending an Iron Curtain? Buffer-Zone Laws and Balancing Histories of Disruption with Free Speech, 66 Case W. Res. L. Rev. 849 (2016)
Available at: http://scholarlycommons.law.case.edu/caselrev/vol66/iss3/7