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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 11 In Greater New Orleans Broadcasting, 76 Justice Stevens authored a majority opinion, in both result and rationale. Justice Thomas, the only justice who did not join the majority opinion, appears to have acted out of his distaste for the continued use of the Central Hudson test, and not from some significant ideological discord with the other justices. 77 The Court struck down a prohibition of private gambling casino advertising broadcast by television and radio stations located in a state where casino gambling is a lawful activity. Justice Stevens, rather than propose controversial changes in the existing commercial speech test, instead pursued an incremental strengthening of First Amendment protection through an exacting application of the accepted four prongs. He regarded the Central Hudson test as “applied in our more recent commercial speech cases” as a suitable analytical framework 78 . Once again, the government could not pass the third and fourth prongs of the test due to its inconsistent application of the FCC statute used to enact the advertising prohibition and the lack of any pursuit of other means to achieve the government’s interest of reducing gambling’s social costs. The Lorrilard 79 case also reflected the idea that the Central Hudson test could work if applied in the spirit of the case law that created it. Justice O’Connor said that, while the petitioners urged the use of strict scrutiny as the test, the Court saw “no need to break new ground. Central Hudson, as applied in our more recent commercial speech cases, provides an adequate basis for decision.” 80 The Court found that Massachusetts outdoor and point-of-sale advertising regulations for smokeless tobacco and cigars violated the First Amendment in that the regulations could not pass the fourth prong of the Central Hudson test. The state provided ample documentation to satisfy the third prong. However, the regulations were found to be too uniformly broad in terms of geographical limitations and the range of communications restricted and, thus, demonstrated to the Court a lack of tailoring. Members of the Court still expressed growing frustration with the assessment and application realities of the Central Hudson test as there were four opinions in addition to

Authors: Hollerbach, Karie.
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ICA 1-10808 11
In Greater New Orleans Broadcasting,
76
Justice Stevens authored a majority
opinion, in both result and rationale. Justice Thomas, the only justice who did not join
the majority opinion, appears to have acted out of his distaste for the continued use of the
Central Hudson test, and not from some significant ideological discord with the other
justices.
77
The Court struck down a prohibition of private gambling casino advertising
broadcast by television and radio stations located in a state where casino gambling is a
lawful activity. Justice Stevens, rather than propose controversial changes in the existing
commercial speech test, instead pursued an incremental strengthening of First
Amendment protection through an exacting application of the accepted four prongs. He
regarded the Central Hudson test as “applied in our more recent commercial speech
cases” as a suitable analytical framework
78
. Once again, the government could not pass
the third and fourth prongs of the test due to its inconsistent application of the FCC
statute used to enact the advertising prohibition and the lack of any pursuit of other means
to achieve the government’s interest of reducing gambling’s social costs.
The Lorrilard
79
case also reflected the idea that the Central Hudson test could
work if applied in the spirit of the case law that created it. Justice O’Connor said that,
while the petitioners urged the use of strict scrutiny as the test, the Court saw “no need to
break new ground. Central Hudson, as applied in our more recent commercial speech
cases, provides an adequate basis for decision.”
80
The Court found that Massachusetts
outdoor and point-of-sale advertising regulations for smokeless tobacco and cigars
violated the First Amendment in that the regulations could not pass the fourth prong of
the Central Hudson test. The state provided ample documentation to satisfy the third
prong. However, the regulations were found to be too uniformly broad in terms of
geographical limitations and the range of communications restricted and, thus,
demonstrated to the Court a lack of tailoring.
Members of the Court still expressed growing frustration with the assessment and
application realities of the Central Hudson test as there were four opinions in addition to


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