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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 22 one half of the judges are renewed every three years, with the total number of judges equal to that of the number of Contracting States, which is currently forty one. 158 Judges sit on the European Court in an individual capacity and do not represent any member State. 159 This fact, taken into account with the absence of a formal stare decisis principle, also eases the way for the European Court to perfect its interpretation and application of Article 10. It would be difficult for a Supreme Court justice to concede that he or she had reconsidered his or her written decisions on the commercial speech doctrine and the Central Hudson test and now wanted to formulate a new standard. 160 Common Ground Exists Between the Tests, But Not the Standards The written tests used by both judicial bodies to evaluate commercial speech restrictions can be seen in Table 1. Both the Supreme Court and the European Court of Human Rights use multi-step evaluations where a negative response to one of the questions results in a dismissal of the commercial speech restriction. Thus, the application method of how both judicial bodies evaluate commercial speech restrictions is remarkably similar. Both courts consider the legitimacy of the restriction as well as the necessity of the restriction as the most prudent manner to pursue the stated aim. The Supreme Court also considers the legality of the activity that is the object of the commercial speech whereas the European Court considers whether or not the commercial speech restriction is prescribed by law. Where the two courts differ, however, is in their standards regarding if and when commercial speech should ever be restricted or regulated. The margin of appreciation is the tool by which the European Court strikes its balance. The test for expression restriction, found in Article 10(2), remains the same, but the margin can change to accommodate or reject a restriction depending upon the legitimate aim of the restriction, the type of expression being restricted, and the doctrines used to evaluate the necessity of the restriction. The European Court has been consistent in the commercial speech cases it has decided due to the fact that its motivation for regulation has also been consistent.

Authors: Hollerbach, Karie.
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ICA 1-10808 22
one half of the judges are renewed every three years, with the total number of judges
equal to that of the number of Contracting States, which is currently forty one.
158
Judges
sit on the European Court in an individual capacity and do not represent any member
State.
159
This fact, taken into account with the absence of a formal stare decisis principle,
also eases the way for the European Court to perfect its interpretation and application of
Article 10. It would be difficult for a Supreme Court justice to concede that he or she had
reconsidered his or her written decisions on the commercial speech doctrine and the
Central Hudson test and now wanted to formulate a new standard.
160
Common Ground Exists Between the Tests, But Not the Standards
The written tests used by both judicial bodies to evaluate commercial speech
restrictions can be seen in Table 1. Both the Supreme Court and the European Court of
Human Rights use multi-step evaluations where a negative response to one of the
questions results in a dismissal of the commercial speech restriction. Thus, the
application method of how both judicial bodies evaluate commercial speech restrictions is
remarkably similar. Both courts consider the legitimacy of the restriction as well as the
necessity of the restriction as the most prudent manner to pursue the stated aim. The
Supreme Court also considers the legality of the activity that is the object of the
commercial speech whereas the European Court considers whether or not the commercial
speech restriction is prescribed by law.
Where the two courts differ, however, is in their standards regarding if and when
commercial speech should ever be restricted or regulated. The margin of appreciation is
the tool by which the European Court strikes its balance. The test for expression
restriction, found in Article 10(2), remains the same, but the margin can change to
accommodate or reject a restriction depending upon the legitimate aim of the restriction,
the type of expression being restricted, and the doctrines used to evaluate the necessity of
the restriction. The European Court has been consistent in the commercial speech cases it
has decided due to the fact that its motivation for regulation has also been consistent.


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