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Expression Here and Abroad: A Comparative Analysis of the U.S. Supreme Court's and the European Court of Human Rights' Commercial Speech Doctrines
Unformatted Document Text:  ICA 1-10808 1 Expression Here and Abroad: A Comparative Analysis of the United States Supreme Court’s and the European Court of Human Rights’ Commercial Speech Doctrines Introduction The United States Supreme Court has spent nearly twenty-seven years crafting a commercial speech doctrine in an attempt to satisfy both the members of the Supreme Court and the public as to what the appropriate level and method of protection is for expression of a commercial nature. Recent cases 1 have demonstrated that the Court currently supports a protection level that is more meaningful than previous decisions indicated. However, these recent cases have also revealed a Court divided as to the appropriate method necessary to provide such meaningful protection. Contrast the Supreme Court’s case law on commercial speech with that of the European Court of Human Rights, the main judicial organ of the Council of Europe and one of the entities 2 charged with the supervision and application of the European Convention on Human Rights. 3 While both the Supreme Court and the European Court are the final arenas available to individuals protesting a commercial speech restriction, the European Court’s approach differs markedly from the Supreme Court in two crucial areas: 1. Commercial speech has always received full protection under Article 10(1) of the Convention, according to the European Court’s judicial interpretation. 2. The criteria for determining if commercial speech could be legally restricted and not violate Article 10(1) are found in Article 10(2). Thus, the European Court did not shape the controlling test for legal restriction nor its method of application through case law. The test is part and parcel of the law concerned with the freedom of expression. Different tests are not used for different types of expression. All restrictions on expression, even those of a commercial nature, are evaluated under the criteria of Article 10(2) in order to determine their legality. This paper is a comparative analysis of the commercial speech doctrines both developed and applied by the Supreme Court and the European Court, respectively. Part I

Authors: Hollerbach, Karie.
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ICA 1-10808 1
Expression Here and Abroad: A Comparative Analysis of the United States Supreme
Court’s and the European Court of Human Rights’ Commercial Speech Doctrines
Introduction
The United States Supreme Court has spent nearly twenty-seven years crafting a
commercial speech doctrine in an attempt to satisfy both the members of the Supreme
Court and the public as to what the appropriate level and method of protection is for
expression of a commercial nature. Recent cases
1
have demonstrated that the Court
currently supports a protection level that is more meaningful than previous decisions
indicated. However, these recent cases have also revealed a Court divided as to the
appropriate method necessary to provide such meaningful protection.
Contrast the Supreme Court’s case law on commercial speech with that of the
European Court of Human Rights, the main judicial organ of the Council of Europe and
one of the entities
2
charged with the supervision and application of the European
Convention on Human Rights.
3
While both the Supreme Court and the European Court
are the final arenas available to individuals protesting a commercial speech restriction, the
European Court’s approach differs markedly from the Supreme Court in two crucial
areas: 1. Commercial speech has always received full protection under Article 10(1) of
the Convention, according to the European Court’s judicial interpretation. 2. The criteria
for determining if commercial speech could be legally restricted and not violate Article
10(1) are found in Article 10(2). Thus, the European Court did not shape the controlling
test for legal restriction nor its method of application through case law. The test is part
and parcel of the law concerned with the freedom of expression. Different tests are not
used for different types of expression. All restrictions on expression, even those of a
commercial nature, are evaluated under the criteria of Article 10(2) in order to determine
their legality.
This paper is a comparative analysis of the commercial speech doctrines both
developed and applied by the Supreme Court and the European Court, respectively. Part I


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