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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 7 speech." 44 Thus, the compromise of Central Hudson was, in reality, no compromise at all since it satisfied neither Justice Blackmun nor Justice Rehnquist. Furthermore, by neglecting to explore why commercial speech deserves protection in favor of showing how that protection should be applied, the Supreme Court and the lower courts were left with a test that could be manipulated to come to whatever result a judge or court desired. 45 Justice Rehnquist did just that when he drafted an opinion on a commercial speech case in 1986. Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico:Legislature’s Reasoning Can Satisfy the Fourth Prong At issue in Posadas was a Puerto Rico statute that prohibited casino gambling advertising aimed at residents of Puerto Rico. 46 Advertising aimed at tourists was not restricted. Justice Rehnquist, writing for the five person majority, upheld the prohibition after applying the Central Hudson test. 47 The court granted great deference to the Puerto Rico legislature’s assertion that the restriction directly advanced a substantial government interest. 48 In applying the fourth prong, Justice Rehnquist took an even sharper turn away from the spirit of Central Hudson and more towards his own commercial speech bent. The appellants argued that demand for gambling could have been reduced just as easily by requiring casino operators to include disclaimers designed to discourage gambling by residents, as opposed to a ban on promotional commercial speech. 49 The Court perfunctorily disposed of this argument stating simply that "it is up to the legislature to decide whether or not such a ’counterspeech’ policy would be as effective in reducing the demand for casino gambling as a restriction on advertising." 50 However, this same type of argument was the one the Court itself used six years earlier when it said that the goal of energy conservation could be just as easily encouraged by simply forcing the utility to provide information about the efficiency and expense of the offered service. 51 Even more damaging was the statement Justice Rehnquist made in dicta saying that since Puerto Rico had the power to prohibit casino gambling altogether, it also had

Authors: Hollerbach, Karie.
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ICA 1-10808 7
speech."
44
Thus, the compromise of Central Hudson was, in reality, no compromise at all
since it satisfied neither Justice Blackmun nor Justice Rehnquist. Furthermore, by
neglecting to explore why commercial speech deserves protection in favor of showing
how that protection should be applied, the Supreme Court and the lower courts were left
with a test that could be manipulated to come to whatever result a judge or court
desired.
45
Justice Rehnquist did just that when he drafted an opinion on a commercial
speech case in 1986.

Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico:
Legislature’s Reasoning Can Satisfy the Fourth Prong
At issue in Posadas was a Puerto Rico statute that prohibited casino gambling
advertising aimed at residents of Puerto Rico.
46
Advertising aimed at tourists was not
restricted. Justice Rehnquist, writing for the five person majority, upheld the prohibition
after applying the Central Hudson test.
47
The court granted great deference to the Puerto
Rico legislature’s assertion that the restriction directly advanced a substantial government
interest.
48
In applying the fourth prong, Justice Rehnquist took an even sharper turn away
from the spirit of Central Hudson and more towards his own commercial speech bent.
The appellants argued that demand for gambling could have been reduced just as easily
by requiring casino operators to include disclaimers designed to discourage gambling by
residents, as opposed to a ban on promotional commercial speech.
49
The Court
perfunctorily disposed of this argument stating simply that "it is up to the legislature to
decide whether or not such a ’counterspeech’ policy would be as effective in reducing the
demand for casino gambling as a restriction on advertising."
50
However, this same type
of argument was the one the Court itself used six years earlier when it said that the goal
of energy conservation could be just as easily encouraged by simply forcing the utility to
provide information about the efficiency and expense of the offered service.
51
Even more damaging was the statement Justice Rehnquist made in dicta saying
that since Puerto Rico had the power to prohibit casino gambling altogether, it also had


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