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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 5 receiving commercial information in order to make intelligent and well-informed decisions. 27 This interest is so strong that "advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price." 28 Despite these justifications, the Court did not say that commercial speech is entirely free from government regulation. Thus, the state may regulate commercial speech with a time, place, or manner restriction with a freer hand than in other speech contexts. 29 Commercial speech was different from other forms of speech due to what the Court called "commonsense differences" between it and speech closer to the "core" of First Amendment values. 30 These "commonsense differences" included the "greater hardiness" and "greater objectivity" of commercial speech which "make it less necessary to tolerate inaccurate statements for fear of silencing the speaker." 31 Thus, the state is permitted to take greater steps to prevent false or misleading commercial speech than it is for other forms of speech. 32 The Board’s arguments for the price ban did not survive scrutiny because, in the Court’s view, they were paternalistic measures whose primary purpose was to keep consumers "in the dark." 33 The one dissent, Justice Rehnquist, postured the view that while the Court’s decision might be sound as a matter of public policy, that the matter was really a determination best suited for the state legislature of Virginia. 34 The opinions of Justice Blackmun and Rehnquist represented two polar views of commercial speech. Under the Blackmun view, commercial speech should receive full First Amendment protection unless the speech is misleading, false, or concerning an unlawful activity. Under the Rehnquist view, commercial speech should never receive constitutional protection because it is just commercial activity, best regulated by the state legislatures since it is really economic regulation, not speech regulation. The Court attempted a compromise of these views four years later.

Authors: Hollerbach, Karie.
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ICA 1-10808 5
receiving commercial information in order to make intelligent and well-informed
decisions.
27
This interest is so strong that "advertising, however tasteless and excessive it
sometimes may seem, is nonetheless dissemination of information as to who is producing
and selling what product, for what reason, and at what price."
28
Despite these justifications, the Court did not say that commercial speech is
entirely free from government regulation. Thus, the state may regulate commercial
speech with a time, place, or manner restriction with a freer hand than in other speech
contexts.
29
Commercial speech was different from other forms of speech due to what the
Court called "commonsense differences" between it and speech closer to the "core" of
First Amendment values.
30
These "commonsense differences" included the "greater
hardiness" and "greater objectivity" of commercial speech which "make it less necessary
to tolerate inaccurate statements for fear of silencing the speaker."
31
Thus, the state is
permitted to take greater steps to prevent false or misleading commercial speech than it is
for other forms of speech.
32
The Board’s arguments for the price ban did not survive scrutiny because, in the
Court’s view, they were paternalistic measures whose primary purpose was to keep
consumers "in the dark."
33
The one dissent, Justice Rehnquist, postured the view that
while the Court’s decision might be sound as a matter of public policy, that the matter was
really a determination best suited for the state legislature of Virginia.
34
The opinions of
Justice Blackmun and Rehnquist represented two polar views of commercial speech.
Under the Blackmun view, commercial speech should receive full First Amendment
protection unless the speech is misleading, false, or concerning an unlawful activity.
Under the Rehnquist view, commercial speech should never receive constitutional
protection because it is just commercial activity, best regulated by the state legislatures
since it is really economic regulation, not speech regulation. The Court attempted a
compromise of these views four years later.


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