Constitutional Law Flashcards
Commercial Speech
Commercial speech is not entitled to the same broad protection of political or expressive speech, but it is still protected by the First Amendment.
Commercial speech applies a four part test:
- speech must concern a lawful activity and not be misleading (lawful and not misleading)
- statute serves a substantial government interest (substantial gov’t interest)
- statute must directly advance the interest (direct advancement)
- statute must be narrowly drawn
Strict Scrutiny
Strict Scrutiny is the strictest standard for Equal Protection claims challenging a statute as unconstitutional.
The review asks whether the law and its discrimination of a suspect classification are the least restrictive means to achieve a compelling government interest.
Suspect classifications: Race Religion National Origin Alienage
Supreme Court Jurisdiction
Supreme Court may review a final state-court judgment if there is a question whether the judgment rests on adequate and independent state grounds.
If the judgment rests clearly on adequate and independent state grounds, then jurisdiction is improper.
Political Question Doctrine
A court may refuse to hear a case/make a decision if the controversy is a political question.
Political questions may be
1. Constitution has assigned the decision making to a different branch of government
or
2. the matter is inherently not one the judiciary can decide
Spending Power
The Spending component of the Taxing and Spending clauses is very broad.
Congress may spend for any public purpose, and it need not be to pursue other enumerated powers. This means it may be, but does not have to be, in pursuit of the general welfare.
Taxing Power
The Taxing component of the Taxing and Spending Clause turns on the time of tax:
Direct taxes must be 1. apportioned evenly and 2. reasonably related to the revenue produced.
Indirect taxes must be 1. uniformly applied and 2. reasonably related to the revenue produced
Export taxes are inherently unconstitutional.
Conditions for Federal Funds
Congress may, under the spending clause, condition the receipt of federal funds on certain state action if:
- the spending is in pursuit of the general welfare
- the grant conditions are clearly stated
- the conditions are related to the federal interest
- conditions cannot be so forceful as to be compulsory, rather than merely inducing
Dormant Commerce Clause
The states may regulate commercial matters that are not already regulated by congress.
States cannot burden interstate commerce or purport to regulate commercial conduct wholly beyond the state boundaries.
Importantly, states cannot discriminate against out of state commerce unless an exception applies.
Exceptions to state discrimination against out of state commerce include
1. important purpose with no alternative means
2. market participant exception
3. traditional government function
4. subsidy provided to own residents
5. Congress allows it
(MIST or Congress allows it).
Time/Place/Manner Speech Regulation (public fora)
- content-neutral restriction
- NARROWLY tailed to a SIGNIFICANT government interest
- Leave other channels open for the expression
Time/Place/Manner Speech Regulation (Non-Public Forum)
Any speech can be regulated if it is
- viewpoint neutral
- REASONABLY related to LEGITIMATE government interest
Conduct Regulation
Expressive conduct can be regulated if
- regulation is within the government’s power
- regulation furthers an IMPORTANT government interest
- the regulation is unrelated to the suppression of ideas
- the regulation is no greater than necessary
Content-Based Regulation
Any regulation of the content of speech receives strict scrutiny.
Exceptions:
- obscene (appeals to prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary/artistic/political/scientific value)
- incites violence (likely to induce imminent violence)
- fighting words (genuine threat of IMMEDIATE breach of peace)
