Uses of Balancing in First Amendment Analysis

I.  Individual Case Balancing (ad hoc balancing)

a.    Unweighted or pure balancing (both sides of the scale begin at zero)

b.    Weighted or tilted balancing (applying a standard of review, such as strict scrutiny or intermediate scrutiny, to the facts; the standard will tilt the scales by giving one side the benefit of the weight of a presumption in its favor)

II.  Category Balancing

a.    Standard Selection Balancing (balancing the competing interests in a category of speech in order to decide what standard of review to apply to government infringement of speech within that category; this is engaged in prior to I.b. above and once the standard is selected (such as strict or intermediate scrutiny) it is then applied to all instances of speech falling within that category)

b.    Rule Creation Balancing (sometimes called definitional or categorical balancing) (balancing is used to create a rule to apply to a particular category of speech, as in New York Times v. Sullivan, which rule gives protection to the speech within the category, but only under particular circumstances or to an extent, but not all of the time; once created the rule is then applied to all instances of speech falling within that category)

c.    Exclusionary Categorization (balancing of competing interests results in a decision that a particular category of speech is not protected by the First Amendment)