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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 14 for each and every community, regardless of distinctions in cultures and traditions. 101 When the margin of appreciation applied in Article 10 cases is examined, the scope of the margin changes depending on the legitimate aim of the restriction, the type of expression being restricted, and the legal doctrines used by the European Court to evaluate the necessity of the restriction. 102 This fluctuation of the margin of appreciation is a natural outgrowth of the fact that the Convention document is one of standards, as opposed to detailed rules. The language of the Convention is open, and its structure gives the European Court significant opportunities for interpretive choices. 103 The Court’s task is one of supervisory jurisdiction. 104 It is not designed to take the place of competent national authorities but “rather to review under Article 10 the decisions they [national authorities] delivered pursuant to their power of appreciation.” 105 Cases before the European Court regarding restrictions on commercial speech have been divided in terms of the margin of appreciation applied. Member States are afforded a wide margin in the restriction of misleading or unfair competitive advertising and a much narrower margin in the restriction of objective and truthful advertising. 106 Yet, commercial expression has received Article 10 protection, beginning with the very first case to consider it. Barthold v. F.R.G.: Is Advertising a Protected Expression Under Article 10? Barthold, a veterinary surgeon in Hamburg, Germany, gave an interview to a Hamburg newspaper journalist regarding his support of after-hours veterinary services being offered in the city. 107 He was quoted in a newspaper article about this topic, and his photograph accompanied the story. Other veterinarians saw the story and complained to the Pro Honore business association that Barthold had specifically sought publicity for his own veterinary clinic by recounting examples of his experiences with people needing veterinary care at night and on the weekends. 108 This publicity from the newspaper article, according to the association, violated the Rules of Professional Conduct that stated it was contrary to the ethics of the profession to publicly advertise one’s veterinary

Authors: Hollerbach, Karie.
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ICA 1-10808 14
for each and every community, regardless of distinctions in cultures and traditions.
101
When the margin of appreciation applied in Article 10 cases is examined, the scope of the
margin changes depending on the legitimate aim of the restriction, the type of expression
being restricted, and the legal doctrines used by the European Court to evaluate the
necessity of the restriction.
102
This fluctuation of the margin of appreciation is a natural
outgrowth of the fact that the Convention document is one of standards, as opposed to
detailed rules. The language of the Convention is open, and its structure gives the
European Court significant opportunities for interpretive choices.
103
The Court’s task is
one of supervisory jurisdiction.
104
It is not designed to take the place of competent
national authorities but “rather to review under Article 10 the decisions they [national
authorities] delivered pursuant to their power of appreciation.”
105
Cases before the European Court regarding restrictions on commercial speech
have been divided in terms of the margin of appreciation applied. Member States are
afforded a wide margin in the restriction of misleading or unfair competitive advertising
and a much narrower margin in the restriction of objective and truthful advertising.
106
Yet, commercial expression has received Article 10 protection, beginning with the very
first case to consider it.
Barthold v. F.R.G.: Is Advertising a Protected Expression Under Article 10?
Barthold, a veterinary surgeon in Hamburg, Germany, gave an interview to a
Hamburg newspaper journalist regarding his support of after-hours veterinary services
being offered in the city.
107
He was quoted in a newspaper article about this topic, and his
photograph accompanied the story. Other veterinarians saw the story and complained to
the Pro Honore business association that Barthold had specifically sought publicity for his
own veterinary clinic by recounting examples of his experiences with people needing
veterinary care at night and on the weekends.
108
This publicity from the newspaper
article, according to the association, violated the Rules of Professional Conduct that
stated it was contrary to the ethics of the profession to publicly advertise one’s veterinary


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