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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 10 From 44 Liquormart to Lorillard Tobacco: Strengthening Commercial Speech First Amendment Protection Beginning with the 44 Liquormart, 68 case, the Supreme Court attempted to clarify the inconsistencies in their previous applications of the Central Hudson test, particularly the third and fourth prongs. The Court found that a ban on truthful, nonmisleading price advertising for alcohol in Rhode Island violated the First Amendment. The state government did not produce compelling evidence that the price advertising ban directly advanced the state’s interest in promoting temperance, thus failing the third prong of the test. Justice Stevens, in authoring the Court’s decision, also said that the state government failed to pass the fourth prong because “alternative forms of regulation that would not involve any restriction of speech would be more likely to achieve the state’s goal of promoting temperance.” 69 Examples given were regulation of alcohol sales, taxes, or the establishment of educational campaigns to reduce excessive drinking. 70 The importance of the case lies not in its holding, however, but in the revelation of the various perspectives about the state of the commercial speech doctrine held by members of the Court. 71 In 44 Liquormart, 72 there were four separate opinions with none receiving a majority. 73 Three of the four opinions expressed varying degrees of discomfort with the Central Hudson test. Justice Stevens proposed a two-tier formal recognition for commercial speech, each with its own controlling test. The prohibition of commercial speech to further objectives unrelated to consumer protection would come under “rigorous review” while speech restricted to prevent consumer fraud would come under “less than strict review.” Justice Thomas, who was becoming the most outspoken critic of Central Hudson, called the current test a case-by-case balancing act, unaccompanied by any categorical rules and often governed by the pretenses of individual judges. 74 Thomas’ preference was and still is the abandonment of the Central Hudson test in favor of the rule established in Virginia Pharmacy. Under that rule, “all attempts to dissuade legal choices by citizens by keeping them ignorant are impermissible.” 75

Authors: Hollerbach, Karie.
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ICA 1-10808 10
From 44 Liquormart to Lorillard Tobacco: Strengthening Commercial Speech First
Amendment Protection
Beginning with the 44 Liquormart,
68
case, the Supreme Court attempted to clarify
the inconsistencies in their previous applications of the Central Hudson test, particularly
the third and fourth prongs. The Court found that a ban on truthful, nonmisleading price
advertising for alcohol in Rhode Island violated the First Amendment. The state
government did not produce compelling evidence that the price advertising ban directly
advanced the state’s interest in promoting temperance, thus failing the third prong of the
test. Justice Stevens, in authoring the Court’s decision, also said that the state
government failed to pass the fourth prong because “alternative forms of regulation that
would not involve any restriction of speech would be more likely to achieve the state’s
goal of promoting temperance.”
69
Examples given were regulation of alcohol sales,
taxes, or the establishment of educational campaigns to reduce excessive drinking.
70
The importance of the case lies not in its holding, however, but in the revelation
of the various perspectives about the state of the commercial speech doctrine held by
members of the Court.
71
In 44 Liquormart,
72
there were four separate opinions with none
receiving a majority.
73
Three of the four opinions expressed varying degrees of
discomfort with the Central Hudson test. Justice Stevens proposed a two-tier formal
recognition for commercial speech, each with its own controlling test. The prohibition of
commercial speech to further objectives unrelated to consumer protection would come
under “rigorous review” while speech restricted to prevent consumer fraud would come
under “less than strict review.” Justice Thomas, who was becoming the most outspoken
critic of Central Hudson, called the current test a case-by-case balancing act,
unaccompanied by any categorical rules and often governed by the pretenses of individual
judges.
74
Thomas’ preference was and still is the abandonment of the Central Hudson
test in favor of the rule established in Virginia Pharmacy. Under that rule, “all attempts
to dissuade legal choices by citizens by keeping them ignorant are impermissible.”
75


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