This Note argues for the use of a balancing-of-interests approach in place of the current two-part test when enforcement policies are challenged on first amendment grounds. The Note begins by explaining the current two-part test and analyzing how it conflicts with other first amendment doctrines. Next, an inquiry into the development of current law reveals that the origins of both the selective prosecution defense and its motive requirement lie in equal protection review of administrative action. These roots suggest a defect in the application of an equal protection test in place of a direct application of the first amendment. The Note then examines both equal protection and agency review applications of the motive requirement and concludes that neither model of review supports a motive requirement for a first amendment challenge to federal enforcement policy. Finally, the Note subjects the passive enforcement policy to first amendment analysis. The policy violates the first amendment whether it is assessed as a content-based or as a content-neutral regulation of speech.
Karl S. Coplan, Rethinking Selective Enforcement in the First Amendment Context, 84 Colum. L. Rev. 144 (1984), http://digitalcommons.pace.edu/lawfaculty/362/.