November 28, 2012

The best commercial of 2012, or, “who’s afraid of commercial speech?”

By The best commercial of 2012, or, “who’s afraid of commercial speech?”

A few days ago, AdWeek named this the best commercial of 2012.

For about half a century now, the Supreme Court has allowed government to restrict the expressive rights of business owners under the theory of “commercial speech.” The idea is that this is a special kind of speech which can be more stringently regulated than other kinds of speech, such as political speech. There are all sorts of problems with this idea—for example, the Court has come up with different, contradictory tests for deciding what kinds of restrictions of free speech are allowed or not. And, of course, the Constitution itself makes no distinction between commercial and non-commercial speech. That distinction only appeared in the 1940s, when the rights of business owners were at a particularly low ebb, and it has served ever since as an excuse for silencing business owners who should have every right to participate in public debate.

Most notoriously, in Nike v. Kasky, the California Supreme Court allowed the state to censor the Nike Corporation when it tried to defend itself from charges that it relied on “sweat shop” labor. Even though Nike was engaged in a public debate on political matters, the court said that the business was engaged in “commercial speech,” and that meant the government could restrict Nike in ways that are off limits when other people speak about other kinds of politics.

But there’s an even more basic problem with the “commercial speech” theory: where do you draw the line between commercial and non-commercial speech? The courts have never been able to come up with a satisfactory definition. Although it’s said to be speech that “proposes a commercial transaction,” that definition doesn’t really work very well at all. In their classic article, Who’s Afraid of Commercial Speech, Judge Alex Kozinski and Prof. Stuart Banner used the example of a famous Diet Pepsi commercial from the 1980s to show that television spots—which would seem to be quintessential examples of commercial speech—are actually “thirty-second minidrama[s] that can stand on [their] own as a piece of film. At no point do any of the actors advocate that television viewers go out and buy Diet Pepsi, no one mentions any of Diet Pepsi’s qualities, and the commercial does not disclose the price of Diet Pepsi or where it can be obtained.” Yet if a soda commercial isn’t commercial speech, what is?

The Guardian advertisement above is an even better example. Eerily echoing the title of Kozinski and Banner’s article, this clever ad features a modern take on the Big Bad Wolf blowing down the house of the three little pigs. Yet this commercial, which AdWeek calls a “mix of craft and storytelling,” does not simply propose a commercial transaction. It never actually instructs viewers to buy The Guardian; indeed, many of the services it depicts are provided free of charge on the Internet. The courts claim that there’s a “‘commonsense’ distinction between speech proposing a commercial transaction…and other varieties of speech,” but when you look at a commercial like this, you can see how that distinction breaks down. I defy anyone to say whether this advertisement is commercial speech or not, under any of the existing criteria that the courts have devised, or any other criteria we choose to fashion today. Under the Kasky decision, it’s clearly commercial speech—but under cases like United States v. Paramount Pictures, it’s clearly fully-protected free speech. (That’s the decision in which the Court said that movies are free speech; it had earlier said that movies deserve no First Amendment protection…because they’re just a commercial product!) Like the Diet Pepsi ad, the Guardian ad is really just a short film depicting the way that the newspaper contributes to public debate. It’s a video tribute, ironically enough, to freedom of speech—and under today’s confusing tangle of precedent, it could easily be classified as “commercial speech” and thus subject to government censorship, simply because The Guardian had a financial motive for producing it!

The distinction between commercial and non-commercial speech never made much sense to begin with. The difference rests on the content of the speech—which is supposed to be off-limits, since government isn’t supposed to treat speech differently based on its content—or it rests on the financial motive of the speaker, which is also not supposed to be relevant to whether speech deserves protection. The difference in treatment finds no basis in the text of the Constitution, and it contradicts our constitutional heritage, since the founders believed commercial advertising and business transactions deserved the same constitutional protections as other kinds of expression. But in today’s world, in which expression is often itself the product, and in which advertising is often more about expressing a lifestyle or a general aesthetic impression than about a plain invitation to buy or sell, the attempt to draw a line between kinds of speech that are respected and those that are relegated to second-class status really makes no sense. Everyone’s speech deserves constitutional respect, whether they be political activists, business owners, or combinations of those two.

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