ANA Pursues First Amendment Protection
Wendy Melillo surmises that “protecting commercial interests was not [the Founding Fathers’] primary concern” [Art & Commerce, Sept. 20]. She notes that “desire to sell a product in the marketplace is a strong enough motive to sometimes skirt the truth” and questions efforts to provide advertising with the same protection as political, religious and artistic speech.
The Association of National Advertisers believes truthful advertising should have this protection. Truthful advertising provides consumers with critical information and fosters an efficient marketplace. It also provides the economic foundation for news and entertainment media.
Citing examples of false advertising, Ms. Melillo states, “Journalists, by contrast, have a responsibility to tell the truth under the First Amendment– and there are penalties for lying.”
Whatever responsibilities journalists have, advertisers have legal duties to tell the truth. Failure to do so can lead to the wrath of the Federal Trade Commission, the Attorneys General and to civil lawsuits.
By contrast, demagogues, cult leaders and schlock artists face no such restrictions. At a minimum, shouldn’t truthful, nondeceptive advertising have equal First Amendment protection to this type of expression?
Ms. Melillo notes that “maybe I have a fear of persuasion. I’m keenly aware that self-interest is at the core of any sale.” But can we trust citizens with the freedom to decide whom to elect, and then treat them as incapable of the persuasive power of advertising when they decide what to eat, drink or drive? Democracy is based on respect of the citizen, and that should be as true in the commercial sphere as in the spheres of religion, art or politics.
A useful rule of thumb is that human beings, when they have something to sell, will portray it in a positive light. Consumers expect this and are incredibly savvy about separating wheat from chaff when they see an
ad. Perhaps the real issue is that Ms. Melillo stretches the definition of “false, misleading and deceptive” to ads that exaggerate and use hyperbole. Most advertisers, however, know the difference between copy that sells and copy that lies. If they don’t, the government forcefully will remind them.
Now it’s time to take the overdue step and provide full First Amendment protection to truthful advertising!
Daniel L. Jaffe
Executive vice president
ANA, New York