Art & Commerce: Special Interest




Advertisers want the same First Amendment protection accorded noncommercial speech. They argue that ads for clothes, cars and even liquor deserve a seat at the table where political, religious and artistic expression reside. Indeed, marketers claim they are no different from their brethren in print and broadcast media.
Purists like myself find it difficult to believe that a group of youthful revelers swigging beer on a boat–the controversial Beck’s spot that drew the wrath of the Federal Trade Commission–is what the Founding Fathers envisioned when they wrote the Bill of Rights.
I can hear the complaints now. No fair picking on such a controversial spot. OK. What about the new Mercedes-Benz USA “Magic” spots created by Merkley Newman Harty, New York? A toothy smile on the Mona Lisa seems as out of place as the implication that “the Mercedes experience” will make life magical. Frankly, it’s the subliminal implications that bother me.
Advertising’s direct attempt to persuade consumers that a car is something more than it is doesn’t seem like a truthful endeavor. Are women really going to have calmer children if they drive a Nissan Quest minivan, considered the “peacemaker” because of its extra room? Are men going to get lucky if they use Brut antiperspirant, which promises he’ll stay dry while “she gets wet?”
“Truthful, nonmisleading commercial speech” is the kind the American Advertising Federation, the Association of National Advertisers and other groups claim is worthy of First Amendment protection.
Consider ANA’s argument in a brief to the Supreme Court about the recent Greater New Orleans Broadcasting Association v. United States case, which addressed federal restrictions on casino ads:
“Commerce is a dignified human endeavor, no less than the pursuit of art, science or politics. ANA’s members and their employees are rightly proud of the products and services they offer to the public Government should not be allowed to prevent them from speaking truthfully through advertising.”
Those are persuasive words in the current climate of less government regulation. Still, the desire to sell a product in the marketplace is a strong enough motive to sometimes skirt the truth. Telling the public your medicine is more effective at relieving back pain than other over-the-counter analgesics, when it isn’t, is a lie. The Better Business Bureau, which reviews some claims and revises or pulls the more egregious ones, can’t catch everything. Nor can the FTC.
Such examples make the public leery. Journalists, by contrast, have a responsibility to tell the truth under the First Amendment–and there are penalties for lying. Remember The Washington Post’s chagrin following the Janet Cooke fiasco? The damage done to the prestigious paper–not to mention Cooke–was, and is, enormous.
Maybe I have a fear of persuasion. I’m keenly aware that self-interest is at the core of any sale. Do I think advertising is to blame for all of society’s ills? No. Do I find advertising useful at times? Yes. I can’t speak for the Founding Fathers, although the ANA has no such qualms. But I can surmise that protecting commercial self-interest was not their primary concern.
Wendy Melillo is Adweek’s Washington D.C. Bureau Chief.