Selling Words

Free Speech in a Commercial Culture

R. George Wright

• Publisher: NYU Press
• Year: 1997
• ISBN:
  9780814795033
• Topic: Law
• Subtopic: Commercial Law
• Index: Law

All of us grumble, from time to time, about the ever-increasing commercialization of American life. Whether in the form of overt corporate sponsorship--as evidenced by the "branding" of every major sporting event--or the less conspicuous role of commercial interests in the funding of the arts, America's corporations are a ubiquitous presence.

While debates rage over the televising of liquor ads and the degree to which Joe Camel encourages adolescent smoking, of far greater concern, R. George Wright argues, should be the passivity with which we accept excessive commercialization. For many, the spread of commercialization by any means other than fraud or deception today seems merely a reflection of the capitalist pursuit of well-being. Yet owning and spending, for the middle- class consumers Wright discusses, is at best only weakly related to their happiness.

In recent years, corporate America has shrewdly sought shelter from reasonable regulation by embracing the First Amendment. Focusing on such flashpoint issues as the Internet, tobacco advertising, and intentionally controversial ads, and exposing the dangerous elephantiasis of our commercial culture, Selling Words serves up a forceful warning about the perils of conflating commerce with First Amendment rights.

chapter one
Commercial Speech in Context

These . . . advertised wares . . . were his symbols and proofs of excellence; at first the signs, then the substitutes, for joy and passion and wisdom.

Consider a typical car commercial, one emphasizing high performance or attractive lease terms. Were it not for the ad producers’ technical artistry, the odd disclaimers and qualifications would stand out: This stunt was performed by a professional driver on a closed track. Always wear your safety belt. Do not attempt this at home. Or the stream of lease terms and conditions such as required down payments, interest rates, and total payments is delivered so quickly as to call into question whether the seller really wishes us to dwell on such matters.

Not all these disclosures are made by the seller voluntarily. The government, usually at the federal level, may have pressured or simply legally required the industry to incorporate such declarations into their commercials. How can the government do this? A car is not a bogus cancer cure. Certainly not all the regulated commercials can be claimed to be coercive, fraudulent, or deceptive. What happened to freedom of speech?

The government either is prohibiting the seller from saying what it wants to say, in its own way, or is requiring the seller to say what it does not want to say. Isn’t free speech restricted in either case? Just as the government can’t prevent us from saying what we believe, so it can’t put words in our mouth. The government can’t force us to salute the flag, recite a party platform, or, presumably, even sign our e-mail. Thousands have fought and died to establish these principles. Aren’t similar principles at stake, to a similar degree and in similar ways, in car ads and in commercial advertising in general?

We expect the government to have the constitutional authority to regulate the production and sale of goods and services. The government can impound dangerous drugs and bar them from sale. But shouldn’t we draw the line at regulation of speech? We expect mandatory recalls of dangerous drugs, but why should the government be allowed to regulate speech touting drugs that are not dangerous? Isn’t that paternalism in the realm of thought? Surely we cannot say that speech touting commercial products is not important or is of little interest to us.

Some products are more controversial, and more dangerous, than others. Tobacco and alcohol products are examples. Nonetheless, these products are legally available for sale to adults. Why should adults’ choices of what product to buy be any more subject to regulation than adults’ choices of which political ideology to “buy”? Let us begin by considering the broader issue of commercial speech and culture.

We live in a remarkably commercialized culture, one that has constantly been changing but, for the moment, whose commercialization seems inevitable. Our culture does contain noncommercial elements, and some of our ways of living are less commercialized than others. Nonetheless, we can deny the cultural predominance of commercialism only in the way that a fish might deny the significance of water.

We need not focus on a single precise meaning of the idea of commercialism for all contexts. The boundary between the commercial and the noncommercial is often, though certainly not always, clear. The United States Supreme Court itself has been inconsistent in defining commercial speech, but to no great loss. Typically, our intuitions about what is more and less commercialized are adequate. Distinctions in kind and of degree usually are easy to make. However paradoxical it might seem, we even can often agree that some commercial purchases are less commercial than others and that the degree of commercialism varies among product categories. For instance, buying a copy of the Hindu Upanishads is in a sense a commercial transaction, but it may also be much more.

The importance of particular cultural institutions is not always mirrored by their degree of federal constitutional protection. Generally, we value institutions such as housing, employment, recreation, education, families, and friendship opportunities. But either these institutions are not specifically mentioned in the Constitution, or they are protected in only limited ways. The Constitution does, however, explicitly protect speech, and so we might simply consider commercial speech to be a subset of speech in general.

Until recently, the Supreme Court did not treat the government’s regulation of commercial speech as different from its overall regulation of business activities, but that has now changed dramatically. Among other reasons, the Supreme Court has noticed or has been willing to admit that many of us care more passionately about our choices among competing brands of automobiles, running shoes, pharmaceuticals, hamburgers, antacids, malt liquors, and cigarettes than about the major political candidates for elective office or about which scientific or aesthetic theory is best.

The Supreme Court’s initial embrace of commercial speech did not, however, equate the constitutional status of commercial speech with that of political, artistic, or scientific speech. That is, the Court was willing to distinguish false, deceptive, or misleading commercial speech from commercial speech without these attributes and to refuse to give protection to the former. Plainly, the Court would not tolerate government regulation of “misleading” political speech. But even commercial speech that was not false, deceptive, or misleading received at least slightly less constitutional protection than did, say, political speech.

In the past few years, the Supreme Court’s treatment of non-misleading commercial speech has not been readily predictable or consistent. If there has been a discernible trend beyond the Court’s fits and starts, backtracking, and ambiguities, it has been in the direction of greater constitutional protection for commercial speech not thought deceptive or misleading, at least not in any narrow or direct way. Showing merely that the government regulation of such speech can be said to be broadly reasonable is not now sufficient to save the regulation.

It seems fair to say that the Court is less likely to reduce significantly than to maintain or expand its protection of commercial speech, especially commercial speech that is not deemed misleading. It is possible that the Court will cease, in practice if not in theory, to offer less constitutional protection to commercial than to political speech.

We might not find troubling the trend toward increasing protection for commercial speech, especially when such speech is not considered deceptive. What’s wrong with rigorous constitutional protection for such speech? Why shouldn’t we welcome—and at least ratify if not extend—such constitutional protection?

This book seeks to answer that question and to provoke others to offer better answers. In brief, the costs and conflicts in the basic values at stake in commercial speech cases are much more serious than the Supreme Court has so far recognized. I am not arguing for elitism, or for a “high” culture as opposed to a “low” culture. Instead, I appeal to broadly shared values. We should not assume that we once lived in a golden age of pristine noncommercialism, but we also should not merely rationalize what appears to be inevitable. We should not suppose that the unwashed masses are helpless before the subtle manipulations of contemporary advertising; we are, as a people, too experienced, too distracted, or too cynical for that.

We should not be surprised if a commercialized society affords whatever protection to commercial speech seems necessary, whether that protection is at the level of the federal Constitution or of other sorts of legal protection, or at a broader cultural level. It may be that to some degree, these forms of protection are interchangeable. And certainly, many factors affect the degree of a society’s commercialization other than its legal or constitutional regime. But it seems unlikely that the degree of constitutional protection for commercial speech really makes no difference to the greater society, even over the long term.

Thus it is not surprising that a commercialized society eventually extends to commercial speech a constitutional protection beyond requiring a demonstration of merely the reasonableness of the regulation. This seems even less surprising if the society as a whole is leaning toward increasing commercialization and commercial influence and if the government regulatory apparatus has also expanded in scope and power over roughly the same time.

Our best understanding of freedom of speech may emphasize instead the need to protect the speech of the outcast and the relatively powerless. It is clear that constitutional rights are often won not through political weakness, need, or logic but through political and economic strength. Commercial elements are generally capable of lobbying and litigating on behalf of their own interests, and the rise of the New Deal regulatory state provided them with incentives and opportunities to do so. Often, though certainly not always, the overall commercial interest has been to avoid or reduce the government’s restriction of commercial speech, however much some commercial groups might profit from restrictions on commercial speech.

Currently, an odd coalition of social and ideological forces favors the rigorous constitutional protection of commercial speech. But there is really no convincing reason to believe that in our cultural context, rigorous protection for commercial speech promotes the overall freedom and well-being of the public. In our culture, reducing the current degree of constitutional protection of commercial speech would, in general, enhance both freedom and well-being in the long term, but not because some commercial speech is false or narrowly deceptive or misleading. Rather, beyond a certain degree of cultural pervasiveness, commercial speech tends to undermine freedom, autonomy, and well-being.

However much we might prefer to pretend otherwise, our contemporary culture offers no meaningful institutional challenge to the deep and pervasive influence of commercialism and commercial speech. No cultural institution is currently both able and inclined to offer a meaningfully scaled “counterspeech” to the broad intended or unintended “message” of commercial speech in its various forms. Any reasonable regulation of commercial speech may be based on a narrower, particularized justification, such as promoting conservation, nutrition education, the knowledgeable purchase of securities, health, or the safety of the consumer or third parties. But any such reasonable regulation also tends, if only in a minimal and indirect way, to contribute in broader ways to the citizens’ overall freedom, autonomy, and well-being.

The reasonable regulation of even nondeceptive commercial speech implicitly questions the proper role of commercialism and commercial speech in our culture. This does not mean that the government itself can be relied on to counterbalance the influence of commercialism. Nor does it mean that questioning the cultural sovereignty of commercialism by itself effectively validates real alternatives to commercialism. Rather, the reasonable regulation of commercial speech is merely one step in a complex process of legitimizing and facilitating free choices of either commercial or less commercial styles of life, consistent with democracy, the free speech clause, and the rest of the Constitution.

The Supreme Court’s expansion of constitutional protection for commercial speech has been controversial. Commentators, in fact, are divided on whether or precisely how to extend constitutional protection to commercial speech. Unfortunately, this debate has usually been poorly structured, with the commentators often falling into definitional traps. Typically they begin with either a broad or a narrow range of purposes and values underlying the free speech clause. They then characterize wider conceptions of the values underlying freedom of speech in such a way as to encompass commercial speech within the scope of protected speech. At the same time, they construe narrower understandings of the values underlying free speech in such a way as to exclude commercial speech. The problem, of course, is that whether one ends up protecting commercial speech depends almost exclusively on well-worn and perhaps interminable debates over the scope of the purposes underlying the free speech clause.

This trap can be avoided, though, if by adopting a larger cultural focus, we can accept a broadly inclusive view of the reasons for protecting free speech while still concluding that the restrictions of commercial speech need only be reasonable in order to pass constitutional muster. The idea is to show that a relatively restrictive approach to commercial speech need not rest on either unappealing values or a narrow construal of the reasons for protecting free speech in the first place. We can and should accept an expansive, accommodating view of the values served by free speech and, on that basis, limit the Court’s current protection for commercial speech.

Let us begin our analysis with a bit of folklore that seems almost culturally universal. Many of us grasp this insight at some time or another, and the sages commonly confirm it for us. Simply put, we believe that the relationship between acquiring market-produced goods and services and achieving the sort of happiness or well-being we most desire is, at best, dubious.

This insight antedates the anxieties of postindustrialism. We find essentially this thesis in the Discourses of Epictetus and in the Analects of Confucius. Similar themes are echoed by Jean-Jacques Rousseau in the Discourse on the Origin of Inequality, by Henry Thoreau in Walden, by Thoreau’s colleague Ralph Waldo Emerson, and by the poet William Wordsworth. Karl Marx explored similar ideas in his Economic and Philosophical Manuscripts.

It is possible to dismiss each of these writers as somehow outside the mainstream. Epictetus was a Stoic given to asceticism. Confucius was denied familiarity with the miracles of modern industrial productivity. Rousseau, Thoreau, Emerson, and Wordsworth were at least vaguely Romantic figures, inclined toward the cult of the natural. Marx’s attitude toward capitalism divided civilizations.

But a hasty dismissal of these writers is unwarranted. Their strictures reflect moments of common experience. Rousseau, for example, convincingly notes that we convert former luxuries into “negative” necessities whose absence creates a sense of deprivation and unhappiness but whose presence has largely lost the power to please. Our inevitable, and often rapid, psychological adjustment to the possession of most goods means that we derive only minimal satisfaction from them while at the same time becoming vulnerable to losing them, or to the fear of losing them. Rousseau thus recognizes a certain treadmill-like, or vaguely addictive, quality in many consumer purchases.

The process that Rousseau describes does not apply only to commercial goods and services. Even though a promotion at work, for example, is not a tangible good or service, we may expect to be permanently happier if it is given to us. The promotion may in fact bring with it a sense of euphoria, followed by an upward adjustment in our expectations, thereby leaving us no better off.

Even though it may seem true at first, it is ultimately wrong to assume that getting what we want never makes us happier over the long term. This assumption may apply to commercial goods and services—does a heart transplant count?—and even to most noncommercial desires, including a promotion at work. Suppose, however, we want a stable, loving relationship on which we can rely without reservation. If we are happier as a result of creating such a relationship, should we assume that our happiness will be only temporary? Is the happiness of a deep, mature friendship really as transient as that derived from a coveted toy? Can’t it be self-renewing, or at least decay more slowly than the happiness obtained from acquiring commercial goods?

We also cannot attribute this argument to Rousseau’s idiosyncratic views, as we might also have cited Erasmus, Montaigne, or Durkheim. Immanuel Kant, no less than Rousseau or Henry David Thoreau, argues in his Lectures on Ethics that as our wealth and purchasing power increase, so do our wants and that the act of “satisfying” those wants is ultimately illusory, in that our appetite for more is quickly sharpened.

Marx was, of course, deeply interested in the possibility of noncommodified standards for human relationships. This idea, along with his interest in various forms of authenticity and alienation, was developed by later writers under the ambiguous rubric of “commodity fetishism.” In an informal sense, commodity fetishism refers to excessive dependence on the ownership or market exchange of objects and services in the pursuit of self-respect or happiness. In this nontechnical sense, commodity fetishism means expanding the sphere of market exchange in ways that eventually impede the fullest and highest development of one’s personality.

It is possible—if not true by definition—that market exchanges tend to maximize the wealth of the transacting parties. Market exchange is commonly thought to presume, embody, or maximize freedom in some sense and thereby to remove the necessity of government restriction of the voluntary exchange of non-misleading commercial information.

None of these arguments shows, however, that restraints on commercial speech undermine well-being or freedom in the fullest sense. The commodity fetishism theorists rightly observe that market theory does not establish that freedom and well-being are maximized when markets convert the broad range of different kinds of social relationships into market-based relationships. Freedom and happiness may well not be maximized when the logic of market exchange affects the nature and quality of nonmarket relationships by making them seem peripheral or ineligible.

Attempting to satisfy social needs—including those often fulfilled by friends or family—through commodity exchange may not so much maximize our wealth as convert us into different if not incommensurable people—who seek beneficial economic exchanges at the expense of worthier and more fulfilling goals. That is, we may not be better off but, instead, worse in all but a narrowly pecuniary sense. Perhaps it is impossible to avoid our culture’s gradual shift in emphasis from production—initially driven in part by otherworldly considerations—to the immediacy of consumption. Production requires consumption, of course, and increasing production requires that the act of consumption be legitimate and unstigmatized. But we are not necessarily made freer or happier by commercializing our lives, even if all our choices are voluntary and not narrowly coerced.

Through its eventual pervasiveness, commodification is largely self-justifying. Commodification as a lifestyle of persons and societies is a matter of degree and proceeds almost imperceptibly. But once commodification becomes sufficiently widespread, any substantial departure from exchange as the primary vehicle of satisfying human needs comes to seem unnatural, risky, sentimental, outdated, confused, alien, lonely, deviant, utopian, sacrificial, or simply inconceivable. Once commodification is sufficiently ubiquitous, it assumes an entrenched, loosely monopolistic character and may even reduce our ability to imagine, pursue, or appreciate other ways of living.

This entrenching process takes place even if the logic of the market fails to maximize human fulfillment. Writers such as Thorstein Veblen, R. H. Tawney, John Maynard Keynes, and John Kenneth Galbraith have variously argued that the modern emphasis on fulfillment through consumption has been less successful than the economic textbooks might lead us to imagine. We can test this view not only by introspection and reflection but also by social science, especially survey evidence.

Adam Smith, a writer usually sensitive to the virtues of markets, concluded:

Wealth and greatness are mere trinkets of frivolous utility, no more adapted for procuring ease of body or tranquility of mind than the tweezer-cases of the lover of toys; and like them too, more troublesome to the person who carries them about with him than all the advantages they can afford him are commodious.¹

We may fairly conclude that doubts about the relationship between consumption and happiness are not confined to those least sympathetic to the market economy.

Let us now consider some of the evidence regarding the relationship between consumption and well-being. Our well-being or happiness—insofar as it is affected by consumption—depends not only on our own lifestyle choices but also on those of others. We might, for example, be happy with what we might call a consumptive lifestyle for ourselves, but only if many other people choose another lifestyle. We may individually benefit in certain ways if most of us focus on consumption, but these effects may not necessarily predominate. Perhaps we all will demand the same goods, for which there may be no good substitutes, thus driving up their prices faster than the expansion of supply or the economies of scale can reduce them. This is not to argue what is likely, only what is possible, and it is possible that most of us will suf...