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Advertiser, regulate thyself By Andrew Jaff

At a time when the First Amendment rights of advertising are getting battered for the sins of cigarette and alcohol abuse, along come a couple of law professors with a b

Professors Ronald K.L. Collins of George Washington University National Law Center and David M. Skover of the University of Puget Sound School of Law see little social, intellectual or political value in modern advertising. They accuse it of becoming manipulative and laden with symbols and images that effectively tie into psychic–but not necessarily real–needs of the consumer. As such, they feel marketing communications directed by the forces of American capitalism have destroyed the essence of a “citizen-democracy” and replaced it with a “consumer democracy” which they see as supplanting the “age of reason” with the “age of self.”
“Broadly speaking, today the ‘general will’ has become the will to buy,” they write in the March issue of the Texas Law Review. “The common good has become common goods; liberty from monarchical tyranny has become liberty for market choices; and the public forum has become the shopping mall. Civic republican norms of equality anchored in notions of mutual obligation run adrift in a sea of commercialism that equates equality with ‘keeping up with the Joneses.'”
Gone is the informational content of advertising which traditionally drove jurists to grant it constitutional protection. “Today’s mass advertising often has less to do with products than lifestyles, less to do with facts than image, and less to do with reason than romance,” they write.
Having stripped advertising of its patina of value as an educator, a conveyor of truthful information, the professors would hand it over to government for regulation or worse. “All of these consequences of commercial communication might prompt us to reconsider the structure of the traditional First Amendment analysis,” they conclude. “To restructure the First Amendment so as to permit some governmental regulation of corporate advertising messages is to set the legal guarantee against the commercial culture.”
Do we really need legal protections from our own culture? Assuming the arguable truth that it is advertising which makes people smoke themselves to death . . . or ghetto kids buy $175 sneakers they really can’t afford . . . or graying columnists drink more bourbon than is good for them, do we need government to step in and legislate away the creative allure of such ads? Isn’t this cultural tyranny through a back door?
Of course much of what Collins and Skover say is true–advertising is image laden, it does dwell in the murky realm of “psychographics,” and some advertising today is worthless blather heavy with copy points and forgettable images. But beware of jumping to any conclusions here, professors. Even in noncommercial speech, you need to protect the silly and blasphemous in order to assure freedom for the provocative and contrarian ideas that overturn corrupt, old orders.
“It’s a fundamental of First Amendment theory that neither government nor judges have the aesthetic sensibility to make choices as to what’s valuable and what’s not,” says advertising law specialist Richard Kurnit of the New York law firm Frankfurt, Garbus, Klein & Selz. “Whenever you start regulating creativity and communication, you’re into a realm where people have widely different notions of what’s valuable and what’s tasteless. The whole premise of our form of government is that you should keep government out of such judgments.”
Burt Neuborne of the New York University School of Law says that up to now the Supreme Court has rejected views similar to those of Collins and Skover, but cautions that if advertisers do not use good judgment, the urge to protect will evaporate. “An enormous amount of advertising today doesn’t fulfill its responsibility that should rest on the shoulders of people who enjoy constitutional protection,” he says. For that reason, the industry should do more to raise its standards and try to drive out that which is misleading, untruthful or downright tasteless and irresponsible. “Eventually the political pressure to regulate will become overwhelming,” Neuborne warns, “and even the courts will buckle. Advertising should take this threat seriously. The industry shouldn’t roll over and play dead about government regulation. But it ought to take to heart some of the criticisms of scholars like Collins and Skover and look at the morality and responsibility of advertising practices.”
Note: For copies of the March issue of the Texas Law Review, which has a series of six articles on the issue of First Amendment protections of advertising, contact Fred. B. Rothman & Co., 10368 West Centennial Road, Littleton, Colo. 80123. Phone: (800) 457-1986. $7 each plus $2 for shipping.
Copyright Adweek L.P. (1993)