美國憲法상 商業的 言論의 槪念과 憲法的 保護

In 1976, the United States Supreme Court reversed its longstanding conclusion that the Constitution imposes no restraint on government regulation of purely commercial advertising. The announcement spawned what has since become known as commercial speech doctrine, a notoriously unstable and contentious domain of First Amendment jurisprudence. No other realm of First Amendment law has proved as divisive. Some adamantly support the Court's original position depriving commercial speech of constitutional protection, whereas others are unable to discern any philosophical or historical basis for asserting that ‘commercial speech’ is of lower value than ‘noncommercial speech.’ Although Commercial speech doctrine is now almost a quarter of a century old, yet it has never systematically queried its own justifications and implications So, our purpose in this Article is to demonstrate the major outlines of contemporary commercial speech doctrine. Specificly, We believe it can be explained by reference to a roughly Meiklejohnian perspective, so that the Central Hudson test which has became a general test for determining the constitutionality of regulations of commercial speech can in fact be subject to principled revision. This revision would require the test both to articulate which government purposes are acceptable and which are not, and to specify which impacts on commercial speech are acceptable and which are not. It would also require that the misleading requirement be employed only in a restricted way that refers to the structural relationship between consumers and speakers. Such revision would not, however, precipitate a total reconstruction of the contemporary doctrinal framework of commercial speech. It would preserve the distinction between commercial speech and public discourse, and it would explain why the latter has always received different and greater constitutional protections than the former. If these advantages are attractive to a majority of the Court, commercial speech doctrine, as we now know it, may just survive its present vicissitudes.