현대 미국에서의 상업적 언론 ( commercial speech ) 의 보호 = The Protection of Commercial Speech since Virginia State Board of Pharmacy V. Virginia Citizens Consumer Council Inc. ( 1970 년대 - 1990 년대 )

다국어 초록 (Multilingual Abstract)

The history of commercial speech in the US can be divided into four periods. The first was a colonial period when America was politically and legally ruled by England. During that period, freedom of speech developed under the influence of England, and was related to the independence movement. The press motivated the independence movement and especially commercial advertising was the source of revenue. During the second period, the US Constitution was framed and freedom of speech was stipulated on the First Amendment. Speech was not divided into commercial and non-commercial speech and the former was afforded full protection by the First Amendment. The third period was the time when the Great Depression occurred and the New Deal Policy was born. As hostility to unfettered capitalism grew, states increasingly upheld commercial speech restrictions as a valid exercise of the expanding police power over commerce. During that period, commercial speech was considered as a commercial activity rather than speech and strict restriction on commercial speech was allowed. During the fourth period, in Virginia Pharmacy, the Court held that commercial speech must be protected as speech by the First Amendment. However, even after Virginia Pharmacy, courts had not agreed on the extent of protection of commercial speech. Central Hudson presented a four part balancing test and applied an intermediate level test to commercial speech. Posadas deferred to the legislative intent and held restriction of commercial speech as constitutional. The ambivalence of commercial speech in courts seemed to be resolved in 44 Liquormart. In 44 Liquormart, the Court applied a heightened scrutiny similar to the standard employed for non-commercial speech. However, later in Greater New Orleans, the Court affirmed full protection for commercial speech, but did not completely abandon the Central Hudson test. Thus, the position of courts with respect to commercial speech is still controversial. Nevertheless, it can be expected that commercial speech will be protected as much as non-commercial speech.