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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 8 the lesser power of banning its advertisement. 52 He concluded that because the government could have enacted a wholesale prohibition of the underlying conduct it is therefore permissible for the government to take the less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising. 53 It would have been a hollow victory for casino operators to gain recognition of their First Amendment right to advertise their casinos to Puerto Rico residents, only to then force the legislature into banning casino gambling by residents altogether. 54 From Posadas to 44 Liquormart: An Unpredictable Review Standard What emerged from both Central Hudson and Posadas was a sense that the Court was searching for a clear standard to apply to commercial speech. This was most likely due to the fact that the Court was split over whether commercial speech is closer to simple economic activity (Justice Rehnquist’s view) or to core First Amendment values (Justice Blackmun’s view). This produced an almost unpredictable standard of review for the third and fourth prongs of the Central Hudson test. A less than stable review standard correspondingly produced inconsistent assessment and application of the test. The Court attempted to resolve the confusion over the fourth prong in Board of Trustees of State University of New York v. Fox. 55 The Court significantly weakened the requirement that a restriction on commercial speech be no more extensive than necessary to achieve the government’s asserted interest. 56 Justice Scalia explained that the fit need "not be necessarily perfect, but reasonable; one that represents not necessarily the single best disposition but one whose scope is ’in proportion to the interest served.’ " 57 The Court explained that while the state did not have to use the least restrictive means to achieve its stated goal, the means/ends fit must nevertheless be "narrowly tailored." 58 Thus, within the same case, the Court seemed to equate a reasonableness standard with a narrowly tailored standard. In Cincinnati v. Discovery Network, Inc. 59 and Edenfield v. Fane, 60 a majority of the Court seemed to be giving commercial speech increased protection again. Justice

Authors: Hollerbach, Karie.
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ICA 1-10808 8
the lesser power of banning its advertisement.
52
He concluded that because the
government could have enacted a wholesale prohibition of the underlying conduct it is
therefore permissible for the government to take the less intrusive step of allowing the
conduct, but reducing the demand through restrictions on advertising.
53
It would have
been a hollow victory for casino operators to gain recognition of their First Amendment
right to advertise their casinos to Puerto Rico residents, only to then force the legislature
into banning casino gambling by residents altogether.
54
From Posadas to 44 Liquormart: An Unpredictable Review Standard
What emerged from both Central Hudson and Posadas was a sense that the Court
was searching for a clear standard to apply to commercial speech. This was most likely
due to the fact that the Court was split over whether commercial speech is closer to
simple economic activity (Justice Rehnquist’s view) or to core First Amendment values
(Justice Blackmun’s view). This produced an almost unpredictable standard of review for
the third and fourth prongs of the Central Hudson test. A less than stable review standard
correspondingly produced inconsistent assessment and application of the test.
The Court attempted to resolve the confusion over the fourth prong in Board of
Trustees of State University of New York v. Fox.
55
The Court significantly weakened the
requirement that a restriction on commercial speech be no more extensive than necessary
to achieve the government’s asserted interest.
56
Justice Scalia explained that the fit need
"not be necessarily perfect, but reasonable; one that represents not necessarily the single
best disposition but one whose scope is ’in proportion to the interest served.’ "
57
The
Court explained that while the state did not have to use the least restrictive means to
achieve its stated goal, the means/ends fit must nevertheless be "narrowly tailored."
58
Thus, within the same case, the Court seemed to equate a reasonableness standard with a
narrowly tailored standard.
In
Cincinnati v. Discovery Network, Inc.
59
and Edenfield v. Fane,
60
a majority of
the Court seemed to be giving commercial speech increased protection again. Justice


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