Strict Scrutiny -Constitutional Standard of Review
This standard requires that a law have a compelling state purpose to be constitutional. Further, the law in question must be “narrowly tailored” to achieve that purpose and must be the “least restrictive means” of achieving that purpose. This means that the government must make certain that the law is not overly broad in the type of conduct that it affects. Further, there must not be another method of achieving this purpose without infringing upon the affected individual’s rights. Strict scrutiny is used if the classification involves a fundamental right under the Bill of Rights or under the Due Process Clause. It is also applied when a law or government action specifically affects a suspect class. That is, the law or action has a discriminatory effect based upon race, gender, religion, and national origin.
⁃ Example: The state passes a law prohibiting individuals from burning the state flag. Burning a flag is a form of expression that is protected by the 1st Amendment. For this statute to be constitutional, it must achieve a compelling governmental purpose (within the state’s police power), be narrowly tailored to achieve that purpose, and be the least restrictive means of achieving that purpose. In this situation, there is likely no compelling purpose related to the state’s police power that justifies limiting an individual’s 1st Amendment rights. As such, the state statute would likely be held unconstitutional.
⁃ Discussion: There is no single standard for determining what is a compelling state purpose. The court must determine whether the law’s purpose is a compelling interest. How do you feel about the court’s autonomy in making this determination? Do you believe that the requirement that the law be narrowly tailored and the least restrictive means of achieving the purpose adequately protect an individual’s fundamental or constitutionally protected rights?
⁃ Practice Question: The state passes a law stating the news media must receives approval from state authorities before reporting on any criminal investigations. The purpose of the law is to make certain that the new reporting does not detriment an investigation in process. A media group challenges the law in court, alleging that the law is a violation of the 1st Amendment. What analysis will the court apply in determining whether the law is Constitutional?