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Freedom of Commercial Expression : Law - Roger A. Shiner

Freedom of Commercial Expression



Published: 1st December 2003
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The U.S. Supreme Court extended constitutional protection to commercial expression or speech in 1976. The European Court of Human Rights and the Supreme Court of Canada subsequently did likewise. Historically, however, as Chief Justice Rehnquist memorably remarked in dissenting from the 1976 decision, freedom of expression relates to public decision-making as to political, social, and other public issues, rather than the decision of a particular individual as to whether to purchase one or another kind of shampoo. For all that, courts are now granting constitutional protection to the commercial advertising of organizations such as tobacco manufacturers, breweries, and discount liquor stores.
In this book, Roger Shiner subjects to critical examination the history of and reasoning behind the extension to commercial expression of the principles of freedom of expression. He examines the institutional history of freedom of commercial expression as a constitutional doctrine, and argues that the history is one of ad hoc, not logical, development. In examining the arguments used in support of freedom of commercial expression, he shows that even from within the borders of liberal democratic theory, constitutional protection for commercial expression is not philosophically justified. Commercial corporations cannot possess an original autonomy right to free expression. Moreover, the claim that there is a hearers' right to receive commercial expression which advertisers may borrow is invalid. Freedom of commercial expression does not fit the best available models for hearers' rights. Regulation of commercial expression is not paternalistic. The free flow of commercial information is not automatically a good, and in any case commercial expression rarely in fact involves information.

`Review from other book by this author `For a brilliant presentation and appraisal of all moves in this debate, and of the underlying movements in thought, look no further than Roger Shiner's Norm and Nature, a quite splendid book ... scholarly acumen, practical insight, lucid style, and pointed wit.'' Neil MacCormick, Times Literary Supplement 28/04/1993 ``Norm and Nature makes a substantial and valuable contribution to contemporary theorizing about the nature of law. It exposes new dimensions of the debates between positivists and their opponents and explores these with some precision, often in an absorbing and provocative way ... there is a wealth of careful and subtle reasoning in this book which deserves attention from legal theorists simply on its own merits, and which will be of special interest to positivists because it raises doubts about how comprehensive and illuminating a positivist account of law can be.'' Canadian Philosophical Reviews `'His fascinating book, Norm and Nature: The Movements of Legal Thought, argues that there is deep significance to a feeling that every undergraduate must have had in first considering the modern classics of legal theory: that there is something good to be said on each side ... There is much that is worth considering here and much of value in his deft reconstruction of the arguments of the various sides ... most challenging for present purposes is his metajurisprudential thesis: Is it sound?'' Leslie Green, York University, Toronto, American Political Science Review, Vol. 88, No. 1, March 1994 ``fascinating book'' American Political Science Review

1: Introduction The Contingencies of Institutional History 2: Commercial Speech in the United States 1900-76 3: Commercial Expression in the United States 1976 - 2002 4: Commercial Expression in Canada 5: Commercial Expression in Europe 6: Conclusion Theoretical Interlude 7: The Conceptual Background 8: The Importance of Theory Determined 0he Arguments Assessed 9: Original Autonomy Rights 10: Hearers' Rights 11: Commercial Expression and the self-realization value 12: Autonomy, Paternalism, and Commercial Expression 13: The Free Flow of Commercial Information 14: Lifestyle Advertising and the Public Good 15: Retrospect and Prospect

ISBN: 9780198262619
ISBN-10: 0198262612
Series: Law
Audience: Professional
Format: Hardcover
Language: English
Number Of Pages: 380
Published: 1st December 2003
Publisher: Oxford University Press
Country of Publication: GB
Dimensions (cm): 23.5 x 15.88  x 2.54
Weight (kg): 0.68