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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 9 Stevens emphasized in Cincinnati that the government has the burden of proving the fit between means and ends, and returned to the Central Hudson view that a court may speculate as to alternative means that a government might use in lieu of restriction of speech. 61 Justice Kennedy, in an 8-1 opinion in Edenfield, attempted to dampen Fox’s blow and mitigate the effect of Posadas by requiring that a government "seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." 62 Both Justices Stevens and Kennedy articulated a self-fulfillment theory to support their decisions. According to Justice Kennedy, "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish." 63 In United States v. Edge Broadcasting Co., 64 the Court retreated from its more exacting standard that the governmental action directly advance its asserted interest. The Court also attempted to resurrect Posadas by employing Justice Rehnquist’s greater includes the lesser logic (referring to a state’s ability to control an activity also meaning that it could control the advertising.) 65 In Rubin v. Coors Brewing Co., 66 the Court found no credible evidence supporting the government’s argument that the disclosure of alcohol content would promote strength wars among beer brewers. The Court stressed the unconstitutionality of the statute by addressing the fourth prong of the Central Hudson test, and finding that several less intrusive restrictions were available, all of which would have advanced the government’s interest. 67 As these cases demonstrate, the Central Hudson test has been applied inconsistently and has yielded little certainty to commercial speech litigants, especially in regards to the third and fourth prong. Unless confronted with an identical fact pattern from a previously decided case, there had become virtually no way to accurately predict a case’s outcome before the court.

Authors: Hollerbach, Karie.
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ICA 1-10808 9
Stevens emphasized in Cincinnati that the government has the burden of proving the fit
between means and ends, and returned to the Central Hudson view that a court may
speculate as to alternative means that a government might use in lieu of restriction of
speech.
61
Justice Kennedy, in an 8-1 opinion in Edenfield, attempted to dampen Fox’s
blow and mitigate the effect of Posadas by requiring that a government "seeking to
sustain a restriction on commercial speech must demonstrate that the harms it recites are
real and that its restriction will in fact alleviate them to a material degree."
62
Both
Justices Stevens and Kennedy articulated a self-fulfillment theory to support their
decisions. According to Justice Kennedy, "The commercial marketplace, like other
spheres of our social and cultural life, provides a forum where ideas and information
flourish."
63
In United States v. Edge Broadcasting Co.,
64
the Court retreated from its more
exacting standard that the governmental action directly advance its asserted interest. The
Court also attempted to resurrect Posadas by employing Justice Rehnquist’s greater
includes the lesser logic (referring to a state’s ability to control an activity also meaning
that it could control the advertising.)
65
In Rubin v. Coors Brewing Co.,
66
the Court found
no credible evidence supporting the government’s argument that the disclosure of alcohol
content would promote strength wars among beer brewers. The Court stressed the
unconstitutionality of the statute by addressing the fourth prong of the Central Hudson
test, and finding that several less intrusive restrictions were available, all of which would
have advanced the government’s interest.
67
As these cases demonstrate, the Central Hudson test has been applied
inconsistently and has yielded little certainty to commercial speech litigants, especially in
regards to the third and fourth prong. Unless confronted with an identical fact pattern
from a previously decided case, there had become virtually no way to accurately predict a
case’s outcome before the court.


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