Commercial Free Speech – A Critical Reconsideration

Abstract

In this article we argue that, in the interests of protecting rights of political free speech, it is of central importance that the distinction between such speech and commercial free speech is maintained. The article combines a clear focus on the commercial speech doctrine as developed (using a categorisation approach) by the US Supreme Court with a review of the proportionality approach used in Canada and the European Union (EU). It was in the US that commercial speech was first protected and the case law there related to this area is both extensive and detailed. That jurisprudence continues to exert a substantial influence internationally. The case law in the EU and Canada is also significant not least because it offers an important alternative mode of reasoning when claims for constitutional protection for commercial speech are advanced These are the two dominant analytical methods deployed, internationally, to address the issue of the constitutional protection of commercial speech. Due to the unfortunate but manifest incoherence of the US commercial speech doctrine, as it has evolved, the US approach should not, now, be followed in Hong Kong. The Canadian and EU alternative approaches, however, offer a more coherent framework for reviewing when, and to what extent, commercial speech may deserve protection. Ultimately we take the view that, in the case of Hong Kong, it makes sense for the courts to develop their own view (drawing on relevant international jurisprudence) on the degree to which commercial speech may attract constitutional protection. Courts elsewhere in Asia (and beyond) should also carefully consider their own best way forward in addressing this important issue.