Brandishing the First Amendment: Commercial Expression in America

2. The Scope of Commercial Expression

chapter 2 The Scope of Commercial Expression Under a free enterprise system commercial propaganda by any and every means is absolutely indispensable. —Aldous Huxley, Brave New World Revisited The Supreme Court has never clearly de‹ned “commercial speech,” but if we de‹ne it as all promotional or marketing speech by a for-pro‹t entity, we ‹nd that it takes many forms and is much larger than simply advertising. This chapter provides an overview of the myriad forms that commercial expression can take, along with some observations about their social rami‹cations. It is by no means an exhaustive review, however, since the creativity of marketing professionals appears to be truly inexhaustible, with new marketing techniques dreamed up every day. Marketing, the quintessential commercial expression, takes on a dizzying array of forms, but its two most important general categories are advertising and public relations. Although they are distinct industries, the communication they produce is less distinctively one or the other, and the chief marketing of‹cers of major corporations use all of the tools of both disciplines to promote their enterprises. The proliferation of devices by which marketing can occur and the number of media platforms on which it can occur have given rise to the conviction that a ‹rm’s marketing will be more successful if all of these efforts are coordinated. This practice is called integrated marketing communications (IMC). According to Terence Shimp, author of a popular textbook on IMC, “Current marketing philosophy holds 31 that integration is absolutely imperative for success.”1 The signi‹cance of this comment for the commercial speech doctrine is that it emphasizes that the purpose of all commercial expression is promotion, including the sorts of press releases made by Nike about its labor practices. And it suggests that the format in which promotional speech is delivered does not affect its promotional character and therefore should be irrelevant for constitutional purposes.2 Advertising Advertising is the most familiar form of commercial expression. It is what many people think of when they think of the commercial speech doctrine. Advertising has been de‹ned as a “form of either mass communication or direct -to-consumer communication that is non-personal and is paid for by the various business ‹rms, nonpro‹t organizations, and individuals who are in some way identi‹ed in the advertising message and who hope to inform or persuade members of a particular audience.”3 It can take many forms: billboards , print, television, radio, Internet, cable, direct mail, word of mouth (i.e., paid word of mouth), and others. Although the Virginia Pharmacy Court described advertising as “information about who is producing and selling what product, for what reason, and at what price,”4 anyone living in the modern world knows that, in practice , advertising contains both much more and often much less than simple information about who is selling what, where, and for how much. It creates an image for the product, often relying on emotional appeals, symbols, celebrity endorsements, music, and/or stirring visuals to do so. In addition, it is often intended to evoke responses that are not deliberative. Advertisers explicitly intend to create emotional reactions that will translate into sales. This is perhaps most true in the process of creating and then maintaining a brand identity. According to one author, “Just like people, brands even have their own unique personalities.”5 But since brands are not people, those “personalities ” are created through commercial communication, which is not just about the product or service; it is about the brand—that ephemeral thing “imbued with an insane and spiraling amalgam of religious, mystical and even messianic possibilities.”6 32 / brandishing the first amendment Brand and Image Advertising As Shimp remarks, “We live in a world of brands.”7 Brands serve to differentiate (whether on a real or an illusory basis) among otherwise identical goods. Brands are or can be convenient symbols to convey information to consumers about the producer/manufacturer and, typically, to comment on the quality of the experience or product, thereby reducing what economists call “search costs.”8 Brands can help consumers save time and avoid unpleasant surprises. They are “a covenant with the consumer whereby the mere mention of the name triggers expectations about what the brand will deliver in terms of quality, convenience, status, and other critical buying considerations .”9 Of course, by sticking to familiar brands, consumers might also miss better options...