Congress can regulate four categories of activities involving interstate commerce:
(1) channels of interstate commerce (e.g. roads, rivers, etc.)
(2) instrumentalities of interstate commerce (e.g. trucks, boats, wires, internet, etc.)
(3) Persons and articles moving in interstate commerce
(4) activities substantially affecting commerce.
Decide whether (1) activity is commercial or economic; and (2) there is a rational basis to believe that activity substantially affects interstate commerce or activity is part of general class of activities that, cumulatively, substantially affect ISC (e.g., growing what or marijuana).
- If both true, statute is valid.
If activity is non-commercial, must be "pretty obvious connection" between activity and ISC. Less deference is given to Congress for noncommercial activity.
Where person is already involved in aspect of commerce, Congress' power to regulate their behavior is broad.
State statutes can't unduly burden interstate commerce
- Does legitimate interest of the state outweigh the burden on interstate commerce, taking into account less burdensome alternatives.
Applies to suspect classifications - race, ethnicity, or alienage (for alienage, doesn't apply to jobs performing essential state functions); or
Classification relates to who may exercise a fundamental right:
- Freedom of association
- Access to the courts
- Being a political candidate
- Interstate travel (residency reqs as conditions of welfare, medical care, voting rights -- not tuition reduction or the right to divorce)
- Privacy (marriage, procreation, child-rearing, abortion)
- Voting in state and local elections, except special purpose districts (requirements other than age, residency, citizenship)
Compelling interest test: classification scheme must be necessary to achieve a compelling governmental interest. Burden of proof on the government, statutes almost never survive.
Requires government intent to discriminate.
Addresses fairness of procedure used to deprive life, liberty or property interest, including interest already acquired in specific benefits.
Liberty: Right to drive, raise a family etc.
Property: Includes real property, personal property, public education, government employment, government licenses, government benefits one is already receiving. Typically no property right in continued public employment, absent tenure, "for cause" provision etc.
- Judicial proceedings: hearing, counsel, call witnesses, fair trial, and appeal.
- Nonjudicial proceedings: balancing test weighing (a) individual's interest in the right that will be affected; (b) added value of procedural safeguards used and the possibility of substitute procedural safeguards; and (c) the government's interest in fiscal and administrative efficiency
When state action interferes with a fundamental right (marriage, family, child's education, child bearing/rearing, domestic travel, voting, and other 1A rights) must meet strict scrutiny test (burden on government). If non-fundamental right (typically social and economic regulations, e.g. education, employment), rational relation test (burden on attacker).
Only personal rights: (1) First amendment rights, (2) privacy rights (contraception, procreation, marriage, abortion), (3) interstate (and prob. international) travel
- For right to travel, state may not discriminate between bona fide residents based on how recently they moved to the state.
Freedoms of speech, press, assembly, and association.
The First Amendment protects an individual's right to free speech and is applicable to the states through the Fourteenth Amendment.
Any statute regulating speech or association must contain narrow and definite standards
- Overbreadth: if statute prohibits not only unprotected but also some protected speech as well
- Vagueness: if reasonable person would have to guess at its meaning
- For permit/licensing regulations, unconstitutional if it leaves unfettered discretion to the decisionmaker by not setting forth narrow and specific grounds for denial or where permit mechanism is not closely tailored to the regulation's objective.
Content-based regulations are those that forbid the communicative impact of the expression.
- Strict scrutiny applies to these restrictions.
- For unprotected categories of speech (e.g. obscenity, defamation, fighting words), the requirement is that the government regulate it in a content-neutral way
Obscenity: Speech that, taken as a whole, by the average person, appeals to prurient interest in sex under a community standard, describes or depicts sexual conduct in a way patently offensive, lacks series Literary, Artistic, Political, or Scientific value under a national reasonable persons tandard.
Misrepresentation and defamation
Advocacy of unlawful conduct: "clear and present danger" test. (1) advocacy is intended to produce or incite imminent illegal action, and (2) the advocacy is likely to produce or incite such action.
Fighting words: likely to cause listener to commit an act of violence. Causing another to be angry alone is insufficient.
Content-neutral regulations are those where the regulation is aimed at someone other than the communicative impact of the expression. Allowable where:
- Serve a significant/important government interest,
- Are narrowly tailored to serve that interest, and
- Leave up alternative channels of communication
Prior restraints: Prevents speech from being heard before it even occurs. Heavy presumptions of invalidity. Valid where the mere existence of the communication is proven to create some special harm to society. Must be narrowly drawn standards and a final determination of the validity of the restraint.
- Collateral bar rule: Cannot violate prior restraint and then defend oneself by asserting that it was unconstitutional.
Commercial Speech: Speech whose primary goal is a commercial transaction is subject to greater regulation, must survive intermediate scrutiny. Commercial speech that is misleading or deceptive is not entitled to any protection at all.
Time, place, and manner regulations.
Public speech restrictions in public and designated public forums (forums opened up to the public at large for a specific purpose) must:
(1) must be neutral as to the content of the speech, both on its face and as applied ("content-neutral")
(2) must further a significant government interest not capable of accomplishment by less restrictive means;
(3) be narrowly tailored to server that interest, and
(3) must allow for adequate alternative channels for communicating the information
Public speech restrictions in limited public forums (forums opened up for limited use by certain groups or discussion of certain subjects) and nonpublic forums closed to the public must:
(1) be viewpoint neutral (not subject matter neutral like public/designated)
(2) serve a legitimate government interest, and
(3) be reasonably related to serve that interest.
Freedom of Association: Government can prevent freedom of association if there is a compelling governmental interest that cannot be achieved by less restrictive means (narrowly tailored).
- Government cannot deny privilege or benefit based on mere membership in a group, but may do so if individual has shown intent to further the goals of an org. dedicated to overthrow of the government by force or violence.
Freedom of Press:
If a newspaper lawfully obtains information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.
Private property may not be taken for public use without just compensation
Public use: liberally construed, satisfied if state's use of the property is rationally related to a conceivable public purpose and can include public benefit rather than actual public usage.
Just compensation: measured by the market value of the property at the time of the taking.
Taking v. regulation:
- Total taking: Actions are total takings if there is a (1) permanent physical invasion or confiscation of property (per se taking); or (2) use restriction that denies all economically beneficial use of property.
- Temporary taking: If economic use is denied only temporary, court will consider the economic impact on the owner, the length of the delay, the reasonable expectation of the owners, and the good faith of the government planners, in determining whether just compensation is required.
- Regulatory taking: Regulations, such as zoning ordinances, that decrease economic value by prohibiting most beneficial use are not considered takings if there is still an economically viable use for the property. Balancing test: (1) the character of the invasion (value to the community of the social goal being advanced), (2) economic impact on the claimant, and (3) extent of interference with the investment back expectation of the owner.