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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 12 Justice O’Connor’s opinion written for the Court. 81 The opinions filed ran the gamut from Justice Kennedy who maintained that the Court was not required to consider whether Central Hudson should be retained 82 to Justice Thomas who argued for the establishment of a strict scrutiny standard for commercial speech 83 , much like what Justice Blackmun had called for in Virginia Pharmacy. Twenty-one years after the establishment of the legal standard for commercial speech restriction, the Court appears to be no more satisfied with the standard and the test than it was upon its initial adoption. Part II: Commercial Speech Warrants Article 10 Protection The European Court of Human Rights, though established in the early 1950s as the international tribunal charged with the interpretation and application of the European Convention on Human Rights, is really a jurisprudence phenomenon of the 1980s and 1990s. 84 The European Court dealt with only two substantive cases from 1959, the year it began operation, through 1967. 85 It rendered only 17 substantive decisions in its first 18 years of judicial work. 86 The road to Strasbourg, France, where the Court is located, was a long one. According to a 1994 Council of Europe report, it took an average of five years for a case to be determined by the Court. 87 The application process was lengthy and involved, and a petitioner had to first exhaust the legal remedies of the member State. A petitioner could then apply to the European Commission of Human Rights which reviewed the application for admissibility. 88 The application could be rejected as inadmissible or accepted by the Commission which would then attempt to settle the dispute amicably. If settlement became impossible, only then would the Commission make a recommendation to the European Court to review the petitioner’s claim. In 1998, Protocol No. 11 89 took effect and replaced the European Commission and European Court with a single European Court with full-time judges. The European Court became the largest full-time international tribunal in the world with a jurisdiction that includes over 800 million people 90 and a case load in the hundreds 91 . Case admissibility

Authors: Hollerbach, Karie.
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ICA 1-10808 12
Justice O’Connor’s opinion written for the Court.
81
The opinions filed ran the gamut
from Justice Kennedy who maintained that the Court was not required to consider
whether Central Hudson should be retained
82
to Justice Thomas who argued for the
establishment of a strict scrutiny standard for commercial speech
83
, much like what
Justice Blackmun had called for in Virginia Pharmacy. Twenty-one years after the
establishment of the legal standard for commercial speech restriction, the Court appears
to be no more satisfied with the standard and the test than it was upon its initial adoption.
Part II: Commercial Speech Warrants Article 10 Protection
The European Court of Human Rights, though established in the early 1950s as
the international tribunal charged with the interpretation and application of the European
Convention on Human Rights, is really a jurisprudence phenomenon of the 1980s and
1990s.
84
The European Court dealt with only two substantive cases from 1959, the year it
began operation, through 1967.
85
It rendered only 17 substantive decisions in its first 18
years of judicial work.
86
The road to Strasbourg, France, where the Court is located, was
a long one. According to a 1994 Council of Europe report, it took an average of five
years for a case to be determined by the Court.
87
The application process was lengthy and
involved, and a petitioner had to first exhaust the legal remedies of the member State. A
petitioner could then apply to the European Commission of Human Rights which
reviewed the application for admissibility.
88
The application could be rejected as
inadmissible or accepted by the Commission which would then attempt to settle the
dispute amicably. If settlement became impossible, only then would the Commission
make a recommendation to the European Court to review the petitioner’s claim.
In 1998, Protocol No. 11
89
took effect and replaced the European Commission and
European Court with a single European Court with full-time judges. The European Court
became the largest full-time international tribunal in the world with a jurisdiction that
includes over 800 million people
90
and a case load in the hundreds
91
. Case admissibility


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