Many years ago I wrongly argued that truthful prescription drug advertising deserved First Amendment protection. I did not then know that the commercial speech doctrine would be tortured to protect the advertising of tobacco. It is hard to believe that the merchants of death and suffering deserve constitutional protection for the hawking of their harmful products.
Commercial advertising was outside the protection of the First Amendment for almost two hundred years before the Court changed course. It was outside the protection primarily because despite specious arguments to the contrary, commercial advertising taken as a whole is non-political. Proposing commercial transactions generally is not asking for political conduct. But despite the intention and content of individual advertisements, commercial advertising taken as a whole has negative political effects of constitutional dimension.
The Constitution is a mixture of Lockean Liberalism and Civic Republicanism. It endorses rights as a part of moral reality, but the nature of those rights depends upon their purpose or purposes. The Constitution’s Civic Republicanism assumes a certain kind of citizen – a citizen with a good measure of concern for fellow citizens and a concern for the common good. No legitimate political community can thrive without the kind of cultural glue such citizens provide. A culture of mass advertising runs against those civic concerns. A culture of mass advertising promotes self-interested materialism and hedonism, not fellow feeling and concern for the common good. As the voice of capitalism, commercial advertising pushes against the kind of virtues needed in a political community. As the prominent neo-conservative, Irving Kristol once said, those virtues include “a sense of distributive justice, a fund of shared moral values, and a common vision of the good life sufficiently attractive and powerful to transcend the knowledge that each individual’s life ends only in death.” (See here). It was precisely because commercial advertising undercut those virtues that Kristol could muster only “two cheers for capitalism.”
Commercial advertising manipulates persons to believe that the flourishing of their lives depends upon Crest, Nike, an Audi or whatever. People, of course, can ordinarily buy products as they choose, but the notion that protecting advertising in favor of those products as a First Amendment concern is far-fetched.
This does not mean that individuals cannot advocate hedonism and corruption without constitutional protection. But commercial advertising, to borrow an observation of Cass Sunstein, is neither taken nor received as a political or cultural communication. Even if an individual advertisement were so crafted, it is not the function of courts to decide on an ad hoc basis which rare ad is political and which is not. And we should not forget, as Ed Baker stressed, commercial advertising is now the product of profit driven corporations embedded in a market. Those advertiseements are for the most part dictated by the market – far removed from the human liberty we experience in what Habermas calls the life world.
The framers of the Constitution thought that the protection of human liberty depended on a culture where the citizens’ me-first attitudes were qualified by a measure of commitment to the common good. We now live in a time where our representatives are prepared to let the poor live without adequate food, clothing, shelter, medical care, and employment. When our people are daily immersed in a sea of commercial advertising, we should not be surprised that self-serving hedonism becomes a powerful part of the culture.
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