I. Standards of Review
a. Conclusive Invalidity—required or prohibited regardless of strength of countervailing considerations.
i. Congress can’t enact laws outside of regulatory authority granted.
ii. Individual rights usually not decided this way.
1. Even prior restraint may be necessary in exceptional circumstances. US v. NY Times.
b. Strict Scrutiny—action must be least restrictive means of advancing a compelling government interest.
i. “Least restrictive means”—the fit between government’s regulatory objective and means to advance that objective must be perfect. If Ct can ID less restrictive means, law is invalid.
ii. “Compelling government interest”—must be incredibly important.
iii. Ct affords no deference to gov’t.
c. Intermediate Standard—action must be substantially related to an important government interest.
i. “Substantially related”—needn’t be least restrictive; some over/underbreadth tolerable depending on degree to which action impinges rights.
ii. “Important government interest”—less than compelling, greater than merely unlawful/legitimate.
iii. Ct affords differing degrees of deference to gov’t depending on context.
d. Rational Basis—action must be rationally related to a legitimate government end.
i. “Rationally related”—must not be irrational to believe chosen means promotes regulatory objective.
ii. “Legitimate government end”—need only be lawful.
iii. Ct affords great deference to gov’t. Gov’t need not ID particular regulatory objective to be legitimate; law need only advance a legitimate objective. Ct can provide such hypothetical objective.
e. Conclusive Validity—tantamount to no judicial review at all.
II. Individual Rights, Generally
a. Bill of Rights & 14th Amendment
i. Incorporation—1st-10th As incorporated to states by 14th A. Barron v. City of Baltimore.
1. States must respect “fundamental” freedoms given by BoR.
2. Incorporation is instance of substantive due process.
ii. Reverse Incorporation—14th A’s equal protection incorporated into 5th A. Bolling v. Sharpe.
iii. Privileges & Immunities Clause—Ct interpreted to protect only rights already established elsewhere in Constitution, making guarantee superfl
sion, i.e., unless specifically excluded, it is fully protected speech.
1. Criticism of Public Figures on Matters of Public Concern—no tort liability on people who criticize public officials unless statements of fact were knowingly false or uttered in reckless disregard of truth or falsity.
a. “Public figure”—one who has voluntarily injected himself into public controversy or achieved general fame or notoriety.
2. Offensive Political Speech—fully protected, e.g., “Fuck the draft” jacket and flag burning.
a. Clear and Present Danger Test—advocacy of unlawful conduct, in political context, is protected unless speaker intends to incite imminent lawless action and such imminent lawless action is likely. Brandenburg.
3. Campaign Finance—limits on contributions okay; limits on expenditures not okay. Buckley.
Contributions—use heightened scrutiny somewhat less demanding than strict scrutiny. As long as candidate can spend freely, restrictions on amount of contributions don’t significantly impact quantity of speech. Gov’t interest in preventing corruption is greater respecting contributions; danger of quid pro quo is greater here.