Brandishing the First Amendment: Commercial Expression in America

Conclusion

Conclusion [A] nation built for shopping cannot possibly endure as a democracy. —Mark Crispin Miller, introduction to 2007 reissue of Vance Packard’s The Hidden Persuaders 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 Citizens United and Sorrell v. IMS Health,1 that prospect seems less likely than ever. To the contrary, the rhetoric in these cases suggests that increased protection for commercial speech is almost inevitable. If that happens, it will seriously impair Congress’s ability to regulate commerce. And if ever there was a time when it appeared that regulation of commerce was absolutely essential, that time is now. There are undoubtedly many lessons to be learned from the massive business failures and scandals of recent years, but surely one of them is that unfettered commercial speech can be extremely destabilizing to the economy. It may go some way toward explaining the degree to which the American economy is dependent on high levels of consumption, debt, and a low savings rate, factors that may make the country more vulnerable to phenomena like ‹nancial bubbles and uneven, dramatic market corrections. As set out in the preceding chapters, the problems of unrestrained commercial expression go far beyond the dangers of ‹nancial instability. They are present in all, or virtually all, of the most pressing issues facing not just the United States but the world today—how to reconcile concern for the environment with economic development and stability, how to protect human 223 health and well-being, how to defend democratic government from the encroachments of powerful and essentially stateless nondemocratic institutions. If government lacks the ability to impose legitimate checks on how businesses promote their products and services, it would seem to pose grave dangers to the general welfare on many levels, particularly public health.2 Protection for freedom of speech under the First Amendment does not mean now, nor has it ever meant, absolute protection from consequences for all utterances. If that were the case, fraud, bribery, defamation, libel, conspiracy , and many other speech acts would not be a basis for prosecution; the enforcement of contracts might be impossible. So, some restrictions on speech are permissible; the question is, which ones? Given the evidence, constitutional protection for truthful commercial speech is the outer limit for what ought to be protected under the First Amendment with respect to commercial expression. This is consistent with the justi‹cations under which protection was granted in the ‹rst place by the Virginia Pharmacy Court—the informational value of truthful commercial speech and the respect for autonomy of the individual consumer, which entails not shielding consumers from the truth. However, that does not mean accepting a loose de‹nition of what constitutes “information,” nor does it mean that the government ought to be powerless to control the style of presentation or manipulative techniques. Aspects of advertising that are designed to manipulate more than inform ought to be subject to regulation. The large, for-pro‹t corporation has historically been a demonstrably unreliable source of information even with appropriate governmental controls (and often despite them). Moreover, the de‹nition of “commercial speech” should include any speech by a for-pro‹t corporation. Full protection for commercial speech is not mandated by the Constitution, and corporations are not speakers just like any other speaker. Neither logic nor historical practice dictates that a corporation must be treated like a human being. A “corporation” is a legal entity that takes its character and purpose from the law that creates it. Just as it has “no body to kick or soul to be damned,” it has no “self” to be expressed . Such entities do not have “intentions” or “purposes” beyond the pro‹t-centered ones provided for under the laws governing their creation. This renders all speech by for-pro‹t corporations inherently “commercial” by de‹nition. 224 / brandishing the first amendment It is not illegitimate to distinguish between for-pro‹t and not-for-pro‹t entities. The latter are often formed precisely to amplify the voices of their membership on a particular topic. Likewise, unions are representative organizations . But for-pro‹t corporations are not representative organizations. They represent capital, not people. Not all human interests...