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One hand clapping: the choice of Ruth Bader Ginsburg was greeted with little fanfare, but advertisers may eventually cheer her selection to the Supreme Court By Alan Pell Crawfor

She was–or so Time claimed–a 20-

But there is reason to believe that the Supreme Court’s next Associate Justice deserves a heartier reception–at least from the advertising community. True, she has no record on commercial speech cases. Her writings and lectures don’t provide much in the way of insight, either.
A specialist in the arcane lore of comparative law, Ginsburg has been a cautious jurist, distinguished chiefly for prudent judgment and drab decency. With one exception, her record is remarkable for its lack of enthusiasms.
That exception, however, is women’s issues, and when it comes to these matters, this otherwise bookish establishmentarian becomes a natural rights visionary and a crusader of heroic dimensions. Here her sense of the possibilities of the law, rather than its strictures and limitations, takes hold. Here her imagination takes flight. Here her convictions are solid and compromise is unlikely.
What has any of this to do with advertising? Quite possibly everything. As general counsel to the Women’s Rights Project of the American Civil Liberties Union, she opposed warning labels on alcohol products that are gender-specific–i.e., those that lectured females on the perils of boozing while pregnant. “Her position on labeling is encouraging,” says Dan Jaffe, vice president of the Association of National Advertisers. “She’s also been opposed to restricting ads that target women as vulnerable, and we think that is reason for optimism, too.”
Ginsburg’s feminist zeal should make her responsive to issues of importance to advertisers for other reasons, as well. Every time she will have to ponder a dispute involving commercial speech, she will invariably bump up against Bigelow v. Virginia. This 1975 case is of immense importance to both advertisers and abortion rights activists, though for very different reasons.
In it, the Supreme Court overturned the Old Dominion’s ban of a controversial newspaper ad, so advertisers value the case as a landmark ruling that commercial speech merits constitutional protection. Feminists hail the decision because the ad in question touted abortion services–a fact that is unlikely to escape Judge Ginsburg’s notice.
At the very least, she is no Byron White. This in itself gives ad industry lobbyists in the capital cause for glee. It was Whizzer who wrote the majority opinion in the third commercial speech case heard this year, U.S.v. Edge Broadcasting, handed down in late June. The court’s 7-2 ruling upheld the FCC’s decision to prohibit a North Carolina radio station from broadcasting Virginia lottery ads. That decision, while disappointing to the industry, is not the setback some claim, for several reasons.
For starters, nobody really expected advertisers to win the case. The courts historically have deferred to the anti-gambling statutes of the states, and this court in particular took great pains to decide the case on narrowly argued grounds which will have little bearing on future commercial speech cases.
More than that, five of the seven Justices who formed the majority took pains to separate themselves from the position staked out years ago by Chief Justice Rehnquist in the dreaded Posadas decision and echoed this time out by White. In Posadas the court upheld Puerto Rico’s ban on casino ads on the notion that as long as an activity can be regulated then speech about that activity can be regulated, too.
“In one sense, this isn’t a crushing defeat at all,” says David Versfelt, an attorney with the New York firm of Donovan Leisure Newton & Irvine and general counsel to the 4A’s. “The only justices who bought Rehnquist’s notion, propounded in Posadas that the ‘greater implies the lesser,’ were Rehnquist and White. Everybody else, meaning seven of the nine justices, made it obvious that they don’t accept that idea at all, and ruled as they did for other reasons altogether. The majority of the court, who couldn’t agree on almost any other aspect of the case, distanced themselves from Posadas–and that is good news.”
The other good news, of course, is that only one of those justices remains on the court. White retired on June 28 and, unless something unforeseen happens during the confirmation hearings, he will be replaced before summer’s end by Ginsburg. Nobody at this time can say exactly how she’ll perform, but every indication is she’ll join the court’s so-called “mushy middle.” For advertisers, mush never looked so good.
Copyright Adweek L.P. (1993)