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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 13 became the responsibility of three full-time judges, and petitioners could now apply to the Court directly after exhausting all State legal remedies. 92 Today, if a case is accepted, a seven-judge panel examines the qualities of a case. 93 If a case raises serious Convention protocol interpretation or application issues, it can be referred to the Grand Chamber to be considered by seventeen judges 94 . Article 10 is but one of the eighteen articles found in Section I of the Convention. 95 It pledges the right to freedom of expression, the right to hold opinions, and the right to receive and impart information and ideas without interference by public authority and regardless of frontiers. 96 Any conditions or restrictions placed on freedom of expression must meet the tests outlined in paragraph two of Article 10. 97 Restrictions must be prescribed by law and pursue a legitimate aim. Restrictions must also be shown to be necessary in a democratic society. If any one of these three conditions is not fulfilled, the restriction will be regarded by the European Court as a violation of Article 10. The European Court’s case law has demonstrated that a restriction prescribed by law must be both accessible and precise. Citizens must have “an indication that is adequate in the circumstances of the legal rules applicable to a given case.” 98 Precision is achieved when a restriction is formulated in such a manner that a citizen is able, even if it takes appropriate counsel, to determine the consequences a given action may involve, at least to a level that is reasonable given the circumstances of the situation. 99 Legitimate aims are outlined specifically in Article 10(2). The final criterion is the necessity test. Every restriction on communication must be proportionate to the legitimate aim being pursued. 100 The European Court, in enforcing Article 10, relies first and foremost on the doctrine of the margin of appreciation when deciding the merits of a case. The margin of appreciation can be described as the interpretational tool used by the European Court to draw the line between what is an issue for each community to decide and what is an issue that is fundamental to the application of human rights and, thus, requires the same answer

Authors: Hollerbach, Karie.
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ICA 1-10808 13
became the responsibility of three full-time judges, and petitioners could now apply to the
Court directly after exhausting all State legal remedies.
92
Today, if a case is accepted, a
seven-judge panel examines the qualities of a case.
93
If a case raises serious Convention
protocol interpretation or application issues, it can be referred to the Grand Chamber to
be considered by seventeen judges
94
.
Article 10 is but one of the eighteen articles found in Section I of the
Convention.
95
It pledges the right to freedom of expression, the right to hold opinions,
and the right to receive and impart information and ideas without interference by public
authority and regardless of frontiers.
96
Any conditions or restrictions placed on freedom
of expression must meet the tests outlined in paragraph two of Article 10.
97
Restrictions
must be prescribed by law and pursue a legitimate aim. Restrictions must also be shown
to be necessary in a democratic society. If any one of these three conditions is not
fulfilled, the restriction will be regarded by the European Court as a violation of Article
10. The European Court’s case law has demonstrated that a restriction prescribed by law
must be both accessible and precise. Citizens must have “an indication that is adequate in
the circumstances of the legal rules applicable to a given case.”
98
Precision is achieved
when a restriction is formulated in such a manner that a citizen is able, even if it takes
appropriate counsel, to determine the consequences a given action may involve, at least to
a level that is reasonable given the circumstances of the situation.
99
Legitimate aims are
outlined specifically in Article 10(2). The final criterion is the necessity test. Every
restriction on communication must be proportionate to the legitimate aim being
pursued.
100
The European Court, in enforcing Article 10, relies first and foremost on the
doctrine of the margin of appreciation when deciding the merits of a case. The margin of
appreciation can be described as the interpretational tool used by the European Court to
draw the line between what is an issue for each community to decide and what is an issue
that is fundamental to the application of human rights and, thus, requires the same answer


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