Chapter 6 Freedom of Expression

Question 1

Bill of Rights

Answer 1

Checks on Governmental Power. First ten amendments of the constitution. Where the body of the Constitution grants power to government, the Bill of Rights limits powers of the government.

Question 2

Difference between Liberty and Right

Answer 2

Liberty: ability to act without the government intruding.
Right: ability to act without other people intruding.

Question 3

Means-Ends Test for Constitutional Scrutiny (Three Types)

Answer 3

Strict Scrutiny, Intermediate Scrutiny, and Rational Basis.
More important the liberty, the higher the scrutiny!(examination of the government act to determine if its constitutional)

Question 4

Strict Scrutiny

Answer 4

The law must be necessary to fulfill a compelling state interest and be no more extensive than necessary to do so.
Free political speech is strict scrutiny, highest level of scrutiny!

Question 5

Intermediate Scrutiny

Answer 5

Directly advance a substantial governmental interest and be no more extensive than necessary to do so.
Less than compelling but more than legitimate.
Race and gender.

Question 6

Rational Basis

Answer 6

Have a reasonable relation to achievement of a legitimate governmental purpose.
Economic right or commercial liberty; must have a legitimate governmental purpose and the means must be reasonable. (Almost everything passes here!)

Question 7

Texas vs. Johnson (1989)

Answer 7

Johnson burned an American flag in protest outside the Republican National Convention in Dallas. He was prosecuted under a Texas state statute outlawing flag desecration.The Court struck down the Texas Statute as unconstitutional (did not pass strict scrutiny).

Question 8

Political Speech

Answer 8

“Truth” is whatever we believe it is. The “marketplace of ideas” will work to elevate truth and bury falsity. Political speech receives an especially high degree of protection under the constitution. If its Is false political speech, it can not be regulated, we can find the facts but the government cannot do much.

Question 9

Commercial Speech

Answer 9

Granted less protection under the first amendment than political speech, must pass intermediate scrutiny only.
Think of the KFC example with their 2-piece chicken meal and the whopper (ad had to be withdrawn). False commercial speech is not protected; it may be regulated by govt.

Question 10

Corporate Political Speech:

Citizens United vs. Federal Elections Commission (2010)

Answer 10

CU filed suit for declaratory judgment; that running these ads would not be a violation of law that infringes on the liberty of free political speech. Here was a legal person or corporation not a literal person with human rights! Corporations now have unlimited political influence to give to candidates (money) to use as they see fit.

Question 11

Courts decision on Citizens United vs. Federal Elections Commission (2010)

Answer 11

We hold that stare decisis does not compel the continued acceptance of Austin.
The Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. (Can’t pass strict scrutiny test–no compelling state interest).

Question 12

Kasky vs. Nike Inc. (2002)

Answer 12

Kasky filed a lawsuit against Nike over a false advertising ad.
Nike response: “This is not commercial speech, this is political speech and we can say whatever we want, and its up to your interpretation if it is true or not.”
The court here determined Nike’s statements were commercial speech (based on three factors). Nike later on settled the case.

Question 13

How do we distinguish between political and commercial speech?

Answer 13

1) The speaker.
2) The intended audience.
3) The content of the message.

Question 14

44 Liquormart Inc. vs. Rhode Island (1995)

Answer 14

A Rhode Island statute made it illegal to advertise liquor prices. 44 Liquormart alleges infringement of free commercial speech. You can sue states for violation of Bill of Rights!

Question 15

44 Liquormart Inc. vs. Rhode Island (1995)
What level of “scrutiny” should the Court apply?
Court to Rhode Island: What are the ends that you are seeking to achieve? What are the means that you are using to achieve those ends?

Answer 15

Here the court splits the difference and gives it INTERMEDIATE level of scrutiny because it had a corporation (rational base level) but also a speech of liberty issue that was (Strict scrutiny)!
(Ends) RI wants to cut down on drunk driving.
(Means) Do your means directly enhance to stop drunk driving? Seems there is not a direct straight line from drunk driving to this law they want to implement.(Below)
Bottom line: RI was infringing on commercial speech; therefore this law fails to pass the intermediate scrutiny test! And this law is unconstitutional! (Important)