For years, FCC has prohibited public broadcasters from showing paid advertisements by for-profit entities or political candidates. So when Minority TV—a non-profit channel out of San Francisco—aired advertisements for Korean Air, Gingko Biloba Tea, and the like, FCC scrambled to silence them (and fine them $10,000.) Minority TV sought refuge under the First Amendment, but the Ninth Circuit upheld the advertising bans after applying intermediate scrutiny. Minority TV is now asking the United States Supreme Court to take up this case and subject the infringements on speech to strict scrutiny.
Today, Pacific Legal Foundation filed a brief supporting Minority TV’s petition. We argue that it’s time for the Court to give full First Amendment protection to all types of speech, whether that speech is purportedly “commercial” or “non-commercial” in nature. The Supreme Court has certainly edged that direction in recent years, first in Citizens United v. FEC, where the Court held that government couldn’t suppress speech merely because it’s expressed through a corporate body, and later in Sorrell v. IMS Health, Inc, which held that content-based restrictions on commercial speech are subject to strict judicial scrutiny. We argue that there’s no constitutional basis for the divergent treatment of commercial and non-commercial speech.
Moreover, new types of advertising are blurring the line between commercial and non-commercial speech—making it more difficult for courts to determine which level of scrutiny they must apply. Movies, for example, often include product placement—traditionally thought of as advertising pure and simple. But writers and directors are using embedded advertisements in new and more expressive ways. In Minority Report, the filmmakers used product placement to critique the institution of advertising itself. And many writers and directors could not express themselves in the first place if they weren’t able to use this type of paid advertising to defray the high costs of making a movie.
It is becoming more and more difficult to categorize commercials as crude advertising that deserves less First Amendment protection. Companies now often speak out about social problems and tie their products to the solution. Chipotle’s commercials look less like commercials than mini-educational films about food production—Chipotle has even produced a satirical mini-series on Netflix devoted to this topic. Chipotle’s commercial “The Scarecrow” is a four minute commentary on what it views as the lamentable state of modern food. Set to Fiona Apple’s haunting rendition of “Pure Imagination,” the animated film shows chickens being pumped full of a solution that causes them to double in size, as well as shaking cows crated in small boxes. The title character replaces his cookie-cutter lunches with fresh made creations that strongly resemble Chipotle burrito bowls. But the word “Chipotle” only appears once, at the very end. If a court decided this film was “just a commercial,” it would relegate it to lower level of judicial scrutiny in spite of its many expressive qualities.
The same can be said of The Guardian’s fabulous depiction of the Three Little Pigs. I won’t spoil the ending—you can watch for yourself below—but the “commercial” touches on the value of free speech, fair reporting, social media, economic policy and even the right of criminals to be presumed innocent until proven guilty. According to Supreme Court precedent, the ad deserves less First Amendment protection because the point is to sell a newspaper.
Between product placements, editorializing commercials, and new forms of speech like search engine results, URLs, user-generated ads, and company-run weblogs, fitting speech into the crude categories of “commercial” and “non-commercial” has become not only more difficult, but nonsensical. We hope our brief will convince the Court to fulfill the promise of the First Amendment and strictly scrutinize all abridgments of speech.