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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 3 represented an opportunity to further clarify and refine the test. Instead of developing clear rules, however, the Court has inconsistently applied the test from granting the state great deference in the evidentiary standard necessary to restrict commercial speech in 1986, 10 to establishing strict rules that make it more difficult for states to restrict commercial speech in 1993. 11 The Court’s conceptual consistency regarding the commercial speech doctrine has wavered in both its assessment and application of intermediate First Amendment protection. The following cases outline the progression of the commercial speech doctrine and demonstrate what a long and winding road the Court has taken. Valentine v. Chrestensen: No Protection for Commercial Speech In 1942, the Court decided its first commercial speech case in less than two weeks, 12 without citing precedent, historical evidence, or policy considerations. The Court said, that while it had unequivocally held that the streets could be used for communicating information and disseminating opinion and that the state could regulate the activity without unduly burdening those wishing to communicate, the Constitution imposed no such restraint on government in respect to purely commercial advertising. 13 Chrestensen, the owner of a former Navy submarine, distributed advertising handbills in New York City advertising tours for a fee. He was warned that handbill distribution violated the city's Sanitary Code, but he was also told that he could freely distribute handbills with information on a public protest. 14 Chrestensen then printed a two-sided handbill with an advertisement for submarine rides on one side and a protest against the City Dock Department on the other side. 15 He was subsequently arrested and convicted of a violation of the city's Sanitary Code. The Supreme Court unanimously held that Chrestensen's right to distribute the handbills was not protected. 16 In the Court's mind, despite the mixture of political speech and commercial advertisement, Chrestensen was merely "pursuing a gainful occupation." 17 The Court never mentioned the First

Authors: Hollerbach, Karie.
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ICA 1-10808 3
represented an opportunity to further clarify and refine the test. Instead of developing
clear rules, however, the Court has inconsistently applied the test from granting the state
great deference in the evidentiary standard necessary to restrict commercial speech in
1986,
10
to establishing strict rules that make it more difficult for states to restrict
commercial speech in 1993.
11
The Court’s conceptual consistency regarding the
commercial speech doctrine has wavered in both its assessment and application of
intermediate First Amendment protection. The following cases outline the progression of
the commercial speech doctrine and demonstrate what a long and winding road the Court
has taken.
Valentine v. Chrestensen: No Protection for Commercial Speech
In 1942, the Court decided its first commercial speech case in less than two
weeks,
12
without citing precedent, historical evidence, or policy considerations. The
Court said, that while it had unequivocally held that the streets could be used for
communicating information and disseminating opinion and that the state could regulate
the activity without unduly burdening those wishing to communicate, the Constitution
imposed no such restraint on government in respect to purely commercial advertising.
13
Chrestensen, the owner of a former Navy submarine, distributed advertising
handbills in New York City advertising tours for a fee. He was warned that handbill
distribution violated the city's Sanitary Code, but he was also told that he could freely
distribute handbills with information on a public protest.
14
Chrestensen then printed a
two-sided handbill with an advertisement for submarine rides on one side and a protest
against the City Dock Department on the other side.
15
He was subsequently arrested and
convicted of a violation of the city's Sanitary Code. The Supreme Court unanimously
held that Chrestensen's right to distribute the handbills was not protected.
16
In the Court's
mind, despite the mixture of political speech and commercial advertisement, Chrestensen
was merely "pursuing a gainful occupation."
17
The Court never mentioned the First


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