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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 6 Central Hudson Gas & Electric Corp. v. Public Service Comm’n of N.Y.:Providing a First Amendment Analysis Framework for Commercial Speech In Central Hudson, the Court formulated a four-prong test to determine if a state’s restriction on commercial speech was constitutional. 35 In order for commercial speech to be suppressed: the speech must relate to a lawful activity and not be misleading, the restriction must assert a substantial government interest, the restriction must directly advance that asserted interest, and the restriction can be no more extensive than necessary. 36 According to the Court, "the First Amendment’s concern for commercial speech is based on the informational function of advertising." 37 The case involved a Public Service Commission regulation that prohibited all public utility advertising promoting the use of electricity. 38 The Commission justified the ban on the grounds that promoting energy use would contradict the national policy of encouraging energy conservation. 39 In applying the test, the Court found that the case passed all but the fourth prong. The state failed to show "that a more limited restriction on the content of promotional advertising would not serve adequately the State’s interests." 40 The state also did not demonstrate that alternative means would not have been equally effective at furthering the energy conservation policy and the regulation suppressed more speech than was necessary to advance the state’s interests. 41 Justice Blackmun agreed with the Court’s conclusion, but did not bless its reasoning. He felt the test represented an unnecessary departure from the approach he had articulated in Virginia Pharmacy. 42 Like noncommercial speech, restrictions on commercial speech should be subject to strict scrutiny, unless the restriction is designed only to prevent the dissemination of false or misleading information or the speech involved concerns subject matter the "the State cannot or has not regulated or outlawed directly." 43 In a lengthy dissent, Justice Rehnquist reiterated themes similar to those in his Virginia Pharmacy dissent, saying that the Court had adopted a "broad interventionist role" and had "failed to give due deference to the subordinate position of commercial

Authors: Hollerbach, Karie.
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ICA 1-10808 6
Central Hudson Gas & Electric Corp. v. Public Service Comm’n of N.Y.:
Providing a First Amendment Analysis Framework for Commercial Speech
In Central Hudson, the Court formulated a four-prong test to determine if a state’s
restriction on commercial speech was constitutional.
35
In order for commercial speech to
be suppressed: the speech must relate to a lawful activity and not be misleading, the
restriction must assert a substantial government interest, the restriction must directly
advance that asserted interest, and the restriction can be no more extensive than
necessary.
36
According to the Court, "the First Amendment’s concern for commercial
speech is based on the informational function of advertising."
37
The case involved a Public Service Commission regulation that prohibited all
public utility advertising promoting the use of electricity.
38
The Commission justified the
ban on the grounds that promoting energy use would contradict the national policy of
encouraging energy conservation.
39
In applying the test, the Court found that the case
passed all but the fourth prong. The state failed to show "that a more limited restriction
on the content of promotional advertising would not serve adequately the State’s
interests."
40
The state also did not demonstrate that alternative means would not have
been equally effective at furthering the energy conservation policy and the regulation
suppressed more speech than was necessary to advance the state’s interests.
41
Justice Blackmun agreed with the Court’s conclusion, but did not bless its
reasoning. He felt the test represented an unnecessary departure from the approach he
had articulated in Virginia Pharmacy.
42
Like noncommercial speech, restrictions on
commercial speech should be subject to strict scrutiny, unless the restriction is designed
only to prevent the dissemination of false or misleading information or the speech
involved concerns subject matter the "the State cannot or has not regulated or outlawed
directly."
43
In a lengthy dissent, Justice Rehnquist reiterated themes similar to those in
his Virginia Pharmacy dissent, saying that the Court had adopted a "broad interventionist
role" and had "failed to give due deference to the subordinate position of commercial


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