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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 2 traces the changing First Amendment status of commercial speech through its key Supreme Court decisions. Part II examines the European Court’s key commercial speech decisions. Part III compares and contrasts the commercial speech doctrines of both judicial bodies and proposes that the Supreme Court should take notice of the fact that the European Court first established why commercial speech should be protected by Article 10 (1) before it ever considered the appropriate test to be used in determining if a violation of Article 10 (1) had occurred. This fact has strongly contributed to the consistent commercial speech doctrine coming from the European Court case law. Part I: The Changing Status of Commercial Speech in the U.S. Throughout much of the twentieth century, the Supreme Court viewed commercial speech as an unprotected category beyond the scope of the First Amendment. 4 It was not until 1976 that the Court changed its mind and granted some degree of protection to commercial speech. 5 But, even then, the Court only established what could be considered an intermediate level of First Amendment protection. Commercial speech was sandwiched between unprotected categories, such as libel and obscenity, and fully protected categories with longer and more distinguished constitutional histories, such as political or scientific speech. 6 In 1980, the Court decided to provide a four-prong test to determine the constitutionality of all commercial speech restrictions. 7 Under the test, a court is to consider four points: 1) whether the speech concerns a lawful activity and is not misleading; 2) whether the interest asserted by the government is substantial; 3) whether the regulation directly advances the asserted interest; 4) whether the regulation is "not more extensive than is necessary to achieve that interest." 8 The Central Hudson test has been applied in nineteen Supreme Court commercial speech cases in the last twenty-two years. 9 The test should have eased the way toward a more consistent treatment of commercial speech. Each one of the nineteen cases

Authors: Hollerbach, Karie.
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ICA 1-10808 2
traces the changing First Amendment status of commercial speech through its key
Supreme Court decisions. Part II examines the European Court’s key commercial speech
decisions. Part III compares and contrasts the commercial speech doctrines of both
judicial bodies and proposes that the Supreme Court should take notice of the fact that the
European Court first established why commercial speech should be protected by Article
10 (1) before it ever considered the appropriate test to be used in determining if a
violation of Article 10 (1) had occurred. This fact has strongly contributed to the
consistent commercial speech doctrine coming from the European Court case law.
Part I: The Changing Status of Commercial Speech in the U.S.
Throughout much of the twentieth century, the Supreme Court viewed
commercial speech as an unprotected category beyond the scope of the First
Amendment.
4
It was not until 1976 that the Court changed its mind and granted some
degree of protection to commercial speech.
5
But, even then, the Court only established
what could be considered an intermediate level of First Amendment protection.
Commercial speech was sandwiched between unprotected categories, such as libel and
obscenity, and fully protected categories with longer and more distinguished
constitutional histories, such as political or scientific speech.
6
In 1980, the Court decided
to provide a four-prong test to determine the constitutionality of all commercial speech
restrictions.
7
Under the test, a court is to consider four points: 1) whether the speech
concerns a lawful activity and is not misleading; 2) whether the interest asserted by the
government is substantial; 3) whether the regulation directly advances the asserted
interest; 4) whether the regulation is "not more extensive than is necessary to achieve that
interest."
8
The Central Hudson test has been applied in nineteen Supreme Court commercial
speech cases in the last twenty-two years.
9
The test should have eased the way toward a
more consistent treatment of commercial speech. Each one of the nineteen cases


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