Freedom Of Commercial Speech Of America

In the United States, freedom of speech protected by the First Amendment is diverse, such as political speech, commercial speech, defamation speech, hatred speech, symbolic speech, religious expression and so on. Many scholars consider commercial speech is an expression related solely to the economic interests of the speaker, thus it has low value. The nature of commercial speech—to promote the sale of goods and services determines that only when it is in line with the principle of truthfulness, it is eligible to the protection of the First Amendment. With the development of society, the value system, the regulation system and the judicial review standards of commercial speech freedom are more clear and specific. It can expand and deepen the essential right of speech. Since it is entitled to constitutional protection, it has a claim to safekeeping from unwarranted intrusion.On the basis of measuring commercial speech and other lawful rights and interests, this paper explores embodiment of its constitutional value and researches the scope of its rights, behavior boundaries, administrative rules, and judicial review standards. By systematic research and reorganization of commercial speech freedom in America, this paper intends to provide some guidance for Chinese government to regulate illegal, false or misleading advertising and protect truthful and lawful commercial speech. The paper consists of seven parts besides the introduction and the conclusion.Chapter1lists the development of commercial speech freedom in America. This paper includes the development stage of commercial speech to four stages:not subject to constitutional protection, enjoy a limited measure of protection, entitled to the protection of the First Amendment as a whole and higher degree of constitutional protection. This paper concludes there are three theories to distinguish commercial speech:the main purpose theory, the content-based view and comprehensive factors theory. Under the systemic regulation of the government, strong balance of consumer's organization and self-government of the advertising, Commercial speech freedom now enjoys high measure of constitutional protection. There are much confusion between the pros and cons of whether commercial speech freedom should be protected by the First Amendment in theorists and the bar. This paper will oppose views summarized as theories of the political democracy, the judicial originalism, the profit motive, the nature of corporate and misleading advertisements. Through refuting the above theories, we can see it is reasonable for commercial speech to be protected by the First Amendment.Chapter2demonstrates the theoretical basis of commercial speech freedom. It promotes the economic development and freedom of ideas-market. As an important element in nation's economic system, it promotes the free flow of truthful information of goods and services, enriches the economic market, and provides consumers with more choices. It also promotes achievement of public interest and autonomy of the individual. In summary, commercial speech has an important constitutional value.Chapter3focuses on how the US Court to keep balance among commercial speech freedom and public interest, others'and adolescents' rights. It by no means sacrifices one right to meet the other but to analysis case by case. We should take two aspects into consideration. First, it should protect citizens' commercial speech freedom against government illegal restriction in name of community interests. Second, it should also enable the Government to perform its functions to maintain public interests, such as public health, public order and safety, public morality and so on. Minors are incapable of rational judgment, so children's advertising should adopt special rules. Effective measure is to keep bad or improper commercial speech out of children's reach.Commercial speech being entitled to the constitutional protection, its regulation system should consist of general principles and special principles. Chapter4describes the general principle, abstracted from freedom of speech that should be applied to commercial speech. One is principle of prior review prohibition. Exemption from prior review dose not mean exemption from all following issues. Advertiser should be responsible for consequences caused by illegal, false or misleading information. This is a protection rather than a violation of commercial speech. The other is principle of public places. Public place is an important channel of commercial speech freedom. This paper divides public places into traditional public places such as streets and parks, public places in the modern sense and temporary public places. When regulating commercial speech, the Government should take into consideration the traditional and current usage of public places and whether a private property has played a public function. In application the second principle may be subject to the "time, place and manner" rule, but such restriction should not violate the First Amendment.Chapter5studies the special regulations. To protect truthful and lawful commercial speech, the court takes a four-step test,(1) the speech must concern a legal activity and must not be misleading,(2) there must be a substantial governmental interest to be achieved by the restriction,(3) the restriction must be narrowly drawn to advance that interest, and (4) the restriction must be no more extensive than necessary to meet that interest. But it is not a perfect test, its application often results in distinct decisions in similar cases. So the administration must follow three coherent principles:principles of legality, proportionality and purposiveness. But if an advertisement implies false message or omits necessary information, which may constitute substantial injures to consumers, it would be punished heavily. Three measures are taken to govern the terms of advertising:prior proof measure, mandatory information disclosure and overstatement prohibition.Chapter6discusses commercial speech freedom under some specific media. Such medias as radio, telephone, television and the Internet expand speech area, but they also constitute a challenge to the traditional commercial speech. These medias are more invasive and ubiquitous, so they need more government's intervention as to serve the public interest, convenience and needs.Chapter7discusses about the development of commercial speech freedom in China. Commercial speech freedom in China is different from U.S. in the status of constitutional provisions, legal system, the traditional legal culture and the strength to promote the development of law. To remove the defects in legislative, executive and judicial domains and establish system of commercial speech freedom in China, on the negative aspect, we must try not to interfere with the truthful and lawful commercial speech; and on the positive aspect, we must eliminate the adverse conditions for its normal operation and protect the public interest.