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在美国宪法的视域下,政治言论因其所具有的社会公益性而得到第一修正案的绝对保护。与之相比,仇恨言论、情色言论等则被视为“低价值言论”而只能受到有限的保护,商业言论作为一种商业活动的附属产物亦在此列。然而,以1960年代民权运动兴起和本世纪初保守主义回潮为背景,美国最高法院内部先后两次出现了应赋予商业言论以绝对保护的呼声。对商业言论给予绝对保护,本意是为了更加平等地保护多元的价值立场,从而促进社会公益。但是,由于商业言论与经济活动具有天然的亲缘性,金钱对言论效力的影响就很难得到有效的限制,进而加剧了价值立场的不平等。更重要的是,最高法院在自由与保守两极之间不断摇摆,司法决断逐渐侵蚀民主政治,广大美国民众日益沦为政治生活中“沉默的大多数”。
From the perspective of the U.S. Constitution, political speech is absolutely protected by the First Amendment because of its social welfare. In contrast, hate speech, erotic speech, etc. are viewed as “low value speech ” and can only be limited protection, commercial speech as a subsidiary of commercial activities are also listed. However, in the context of the rise of the civil rights movement in the 1960s and the resurgence of conservatives in the early part of this century, two successive calls for absolute protection of commercial speech have emerged within the Supreme Court of the United States. Absolute protection of commercial speech, the intention is to more equally protect the pluralistic position of value, thereby promoting social welfare. However, due to the natural affinity between commercial speech and economic activities, the influence of money on the effectiveness of speech can hardly be effectively restricted, further aggravating the inequality of the value position. More importantly, the Supreme Court is constantly swinging between the poles of freedom and conservatism, the judicial decisions gradually erode democratic politics and the majority of the American people are increasingly becoming “the silent majority” in political life.