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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 23 Commercial speech restrictions for unfair and competitive advantage advertising have been repeatedly afforded a wide margin while restrictions for objective and truthful advertising have been repeatedly afforded a much narrower margin. In this sense, the European Court has adopted a standard in line with the strict scrutiny approach, much like the position advocated by Justice Blackmun in Virginia State Board of Pharmacy. Contrast the European Court’s views and actions with those of the Supreme Court. Commercial speech advocates in the United States complain about the inconsistent application and evidentiary standard used with the Central Hudson test. Yet, how can a legal test reliably work if the judicial body enforcing the test cannot reliably articulate the standard behind the test? The greatest lesson that the United States Supreme Court could learn from the European Court of Human Rights is that the Court must first explore and address why commercial speech is deserving of First Amendment protection. Then, the Court should articulate the level of protection commercial speech should enjoy going forward. Only then can a legal test for commercial speech restrictions be applied with any consistency. The Court must first know why and when First Amendment protection is granted to commercial speech before deciding if a specific circumstance warrants such protection. A clearer articulation of the standard of review does not conflict with the principle of state decisis, nor does it circumvent or dispose of existing case law in the commercial speech arena. The Supreme Court’s history of wrestling with the why and when aspects of commercial speech regulation has been long and checkered as was shown in Part I. With the establishment of the Central Hudson test, the Court took a step toward clarifying its position. Yet, because it did not fully explore why commercial speech even merits First Amendment protection, the Court made itself vulnerable to the pre-dispositions of every justice who writes the majority opinion for a commercial speech case. The Central Hudson test has proven to be very flexible in application, which is not really the mark of a respected legal test as this flexibility has eroded its reliability. The best course of action

Authors: Hollerbach, Karie.
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ICA 1-10808 23
Commercial speech restrictions for unfair and competitive advantage advertising have
been repeatedly afforded a wide margin while restrictions for objective and truthful
advertising have been repeatedly afforded a much narrower margin. In this sense, the
European Court has adopted a standard in line with the strict scrutiny approach, much like
the position advocated by Justice Blackmun in Virginia State Board of Pharmacy.
Contrast the European Court’s views and actions with those of the Supreme
Court. Commercial speech advocates in the United States complain about the
inconsistent application and evidentiary standard used with the Central Hudson test. Yet,
how can a legal test reliably work if the judicial body enforcing the test cannot reliably
articulate the standard behind the test? The greatest lesson that the United States
Supreme Court could learn from the European Court of Human Rights is that the Court
must first explore and address why commercial speech is deserving of First Amendment
protection. Then, the Court should articulate the level of protection commercial speech
should enjoy going forward. Only then can a legal test for commercial speech restrictions
be applied with any consistency. The Court must first know why and when First
Amendment protection is granted to commercial speech before deciding if a specific
circumstance warrants such protection. A clearer articulation of the standard of review
does not conflict with the principle of state decisis, nor does it circumvent or dispose of
existing case law in the commercial speech arena.
The Supreme Court’s history of wrestling with the why and when aspects of
commercial speech regulation has been long and checkered as was shown in Part I. With
the establishment of the Central Hudson test, the Court took a step toward clarifying its
position. Yet, because it did not fully explore why commercial speech even merits First
Amendment protection, the Court made itself vulnerable to the pre-dispositions of every
justice who writes the majority opinion for a commercial speech case. The Central
Hudson test has proven to be very flexible in application, which is not really the mark of
a respected legal test as this flexibility has eroded its reliability. The best course of action


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