The trappings of Ron Collins’ office at George Washington Law Center do not suggest the inner sanctum of a law professor. There’s Bob Dylan memorabilia, a portrait of philoso" data-categories = "" data-popup = "" data-ads = "Yes" data-company = "[]" data-outstream = "yes" >

Picking his spots By Alan Pell Crawfor

The trappings of Ron Collins’ office at George Washington Law Center do not suggest the inner sanctum of a law professor. There’s Bob Dylan memorabilia, a portrait of philoso

But a law professor Collins is, and a brainy one at that. Having turned his wide-ranging and skeptical intellect toward advertising, Collins is convinced the industry is being ill-served by its own advocates. In Supreme Court decisions, especially, he claims admen are being sold a bill of goods.
This is not surprising since Collins–a founder of the Center for the Study of Commercialism– believes Americans are always palming off shoddy wares on one another. The attribution of base motives notwithstanding, he offers an intriguing rebuttal to recent industry claims.
“When the Court upheld North Carolina’s ban on Virginia lottery ads in Edge Broadcasting, the industry professed shock,” Collins says.
“But the only reason the decision surprised anybody was the industry hype after the Discovery decision (in which the Supreme Court overturned a ban on newsracks for the distribution of shoppers). But Discovery was misread, too.”
Collins insists there’s a consistency in these cases–and in almost everything the Court has done regarding commercial speech. He believes advertisers have no reason to be corkfused about whether their ads will receive constitutional protection as long as they can pass this two-pronged test: “First, is the product or service being advertised unrelated to a substantial social problem? Second, does the ad provide some real measure of factual information to the consumer?”
Advertisers who meet both standards will be protected, Collins says, and they may be shielded even if they meet only one. “Alcohol, while legal, is related to a substantial social problem, which everybody admits,” he explains. “But an ad for that product which contains a high degree of factual information may well be protected. An ad that is pure image might have a problem, though.” Such strictures, Collins admits with a sly grin, can make it “difficult” to market beer in this hedonistic culture. “Advertisers would be better served if their advocates in the legal profession talked straight with them on this stuff and said, ‘This is the reality. Now in light of that reality, here’s what will and what will not be protected.’ Then they can design ads accordingly.” The Edge decision, mysterious to some, was no mystery to Collins. Gambling is a societal ill and is widely recognized as such. The court has upheld restrictions on gambling ads before (in Posadas in 1986) and it would do so again. “Edge was Posadas II,” Collins notes. “The industry has tried to argue that Posadas has been repudiated, but in Edge it was reaffirmed.”
Collins calls it “disingenuous” to warn that restrictions on gambling ads will lead to bans on alcohol and tobacco ads and then to fatty foods and other legal products. “They talk about ‘slippery slopes’ and the First Amendment,” he notes, “but Congress already has restricted ads for chewing tobacco. Yet the industry has yet to take a tobacco case to the Supreme Court because everybody knows they’d lose.”
Steven Shiffrin, a professor of law at Cornell University who is also on the CSC board, agrees with Collins. “There’s a specific reference to the ban on cigarette advertising on TV in the Edge decision,” Shiffrin notes. “If the industry is as serious about the First Amendment as they say, they’d challenge that ban.”
Shiffrin also dismisses talk of outlawing ads for fatty foods. “Only when we determine that people are killing themselves by eating marshmallows the way they kill themselves with nicotine will ads for marshmallows be banned–and rightly so,” Shffrin says.
To suggest, as some do, that commercial speech should be afforded the same protection as political speech is also misleading, Collins and Shiffrin say. “Commercial speech is afforded a lower place in the hierarchy of constitutional protection and always has been,” Shiffrin notes.
“The fight of political dissent is more important under the Constitution than the right of hawking goods,” Collins insists. “And if those who are most vociferous about the First Amendment these days were the First Amendment absolutists they pretend to be, they’d challenge the restriction on chewing tobacco ads.”
As long as advertisers keep their eyes on one basic fact, they need not worry themselves unduly over the Court or the Constitution. “The Court has always protected speech that helps make consumers become more informed decision makers,” Collins contends. “As long as you do that in your ads, you’ll probably have no trouble with constitutionality.”
Whether Dylan agrees is not known.
Copyright Adweek L.P. (1993)