Brandishing the First Amendment
Commercial Expression in America
Publication Year: 2012
Published by: University of Michigan Press
Title Page, Copyright, Dedication
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This book is the result of many years of research, writing, talking, and thinking about its topic. Some of the arguments and some of the text throughout the book have appeared previously, in a somewhat different form, in my...
Introduction: The Problem of Commercial Expression
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In 2009 Advertising Age reported that advertising and marketing were taking a “beating” in Washington.1 Several legislative proposals that would either directly or indirectly threaten to put more limits on the industry were receiving serious attention in Washington...
Part I: Foundational Concepts
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1. Commercial and Corporate Speech
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Prior to the twentieth century neither the courts nor most commentators appeared to believe the First Amendment had much bearing on commercial communications. Although, as legal historian David Rabban1 has noted, there is substantial evidence...
2. The Scope of Commercial Expression
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The Supreme Court has never clearly defined “commercial speech,” but if we define it as all promotional or marketing speech by a for-pro‹t entity, we find that it takes many forms and is much larger than simply advertising. This chapter provides...
3. Why Protect Speech? Four Fundamental Interests
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The quest for a comprehensive theory to explain the First Amendment’s scope and purpose has been a popular activity of twentieth-century legal and political thinkers. As soon as we begin talking about theories of the First Amendment, it seems clear that we also...
Part II: Autonomy and Truth
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4. Autonomy as a Human Interest
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The first value Thomas Emerson thought the First Amendment should protect was what he called “self-fulfillment.”1 According to Emerson, “self fulfillment” encompassed many concepts that, while not synonymous, substantially overlap: autonomy...
5. Brands, Information, and Consumer “Education"
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We live in a world of brands. The brand has morphed from being a means to identify a specific source for goods to one of the dominant metaphors of the age.1 We are encouraged to think of everything in terms of a brand— churches2 and institutions...
6. Advertising and Manipulation
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In the last chapter, I explored the question of the informational content of advertising and found that far from being informational, what advertisers mean by “information” is more like conditioning. I looked at the ways in which advertising and marketing are intended...
7. Tough Love Paternalism
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When it comes to restrictions on advertising designed to account for the exploitation of known cognitive limitations, even regulation’s friends, such as Thaler and Sunstein, are likely to rather quickly concede that such interventions are...
8. The Corporate Person
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The idea of the “corporate speaker” is, for many people, inextricable from the legal and intellectual construction of the corporate person. There may be other grounds on which to extend First Amendment protection to commercial speakers, but this is the one that seems...
Part III: Democracy and Stability
9. Commercial Democracy
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Individual interests in autonomy and self-expression and in the production of information are not the only interests the First Amendment is said to protect. They are, however, the ones particularly focused on the rights and interests of the individual—whether as speaker...
10. Commercial Expression and Economic Instability
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In the summer of 2008, the American economy appeared to be in free fall. Although it has rallied somewhat, it is not clear that more such economic shocks are not in our future. That summer appeared to bring a day of reckoning that some had long feared was coming...
11. Commercial Expression and Environmental Instability
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The final concern that Emerson identified as a reason to protect freedom of expression was that such protection acted as a safety value to promote social stability. As with the interest in promoting truth or democratic participation, social stability is a goal that reflects...
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In the wake of the Supreme Court’s dismissal of the Nike v. Kasky case, it was still possible to imagine, even if it was not likely, that the Court might draw back from the path it was on to extend more protection for commercial speech. After...
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Page Count: 320
Publication Year: 2012