미국에서의 인터넷 상업광고에 대한 헌법적 규제
A study on the Constitutional justification in U.S.A. of the Commercial Advertisement on Internet
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Recently, advertising on internet has been expanded. Advertisement raises several constitutional issues including protection of speech, degree of regulation and so on. Most these issues may be based on how much commercial speech can be protected under constitutional law. so, the 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. Finally, it is need to concentrate our interest on not the character of mass media or the method of advertising but the truth of speech when we decide the constitutional protection of the commercial advertisement.
Abstract
Recently, advertising on internet has been expanded. Advertisement raises several constitutional issues including protection of speech, degree of regulation and so on. Most these issues may be based on how much commercial speech can be protected under constitutional law. so, the 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. Finally, it is need to concentrate our interest on not the character of mass media or the method of advertising but the truth of speech when we decide the constitutional protection of the commercial advertisement.
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