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Question 6
6. The Congress passed a law prohibiting the “transmission of commercial
electronic communications with the use of a computer system which seeks
to advertise, sell, or offer products and services without prior consent of
the recipient.” The digital marketplace Buy and Ship Online (BSO)
questioned the constitutionality of the law for being a class legislation
because it specifically targets online businesses. The BSO added that the
measure must be tested using the “strict scrutiny test” because it
interferes with the exercise of fundamental rights since commercial
advertisements are forms of free speech and expression. In contrast, the
Office of the Solicitor General invoked the “rational basis test” and
argued that the State has a legitimate interest to protect the public from
unsolicited advertisements. Considering the levels of judicial scrutiny,
what is the proper test to determine the constitutionality of the
subject law? Explain.
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