Brandishing the First Amendment: Commercial Expression in America

9. Commercial Democracy

chapter 9 Commercial Democracy Which way will capital vote? —Economist, July 19, 2008 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 or listener. But many observers, like Thomas Emerson, believe that the First Amendment is also intended to promote collective interests. As Emerson put it, “Maintenance of a system of free expression is necessary . . . (3) as a method of securing participation by the members of the society in social, including political, decision-making, and (4) . . . as a means of maintaining the balance between stability and change in the society.”1 I propose that a closer study of the actual operation of commercial expression suggests that neither of these values is advanced by greater protection for commercial expression. In this chapter, I address the problem of the in›uence of commercial expression and commercial interests in the democratic process. Commercial in›uence in politics is harmful in a number of ways. First, as noted earlier, the corporate form allows for the accumulation of wealth in a manner that means that corporations have ampli‹ed voices. This makes the claim that corporations’ voices need to be heard or that they need equal time particularly galling, because the truth is that the largest 165 corporations already enjoy a virtual monopoly on access to the mainstream media. Moreover, corporations themselves are not democratic institutions . The decision-making process within corporations by which priorities are set and money is spent on speech efforts is not a democratic one. Indeed, as pointed out in the preceding chapter, it is even questionable whether management is responsive to the constituents it is supposed to serve—the shareholders. However, management is certainly not at all accountable to the public at large unless the law requires it to be. In addition , to the extent that corporate decision making (e.g., to resist health care reform) may have enormous social consequences that the public is unable to remedy directly by voting, corporate in›uence seems antidemocratic and troubling. Second, marketing mindsets and techniques have so thoroughly in‹ltrated the political sphere that many of the participants are no longer able to tell the difference between what is real and what “works,” and sometimes display a rather shocking disregard for facts. Perhaps politicians and governors have, from time immemorial (certainly since Niccolo Machiavelli wrote The Prince), been chie›y concerned with appearances and “manufacturing consent.”2 Nevertheless, the in‹ltration into politics of extremely sophisticated manipulation techniques that were developed in connection with marketing and marketing research seems particularly troubling. This is the world envisioned by Aldous Huxley in his novel Brave New World. Edward Bernays argued that democracy was unworkable without propaganda. He thought that commercial interests would and should play an important role in the “invisible government” that made democracy work. The problem now may be, can democracy survive its in›uence? Equal Time As objectionable, on many fronts, as advertising may often be, perhaps no area of commercial expression, as I have broadly de‹ned it, is as troubling as speech that takes place in contexts that are clearly political. It is here that misdirection in the argument about corporations as political participants is most apparent. Many of commercial speech’s defenders suggest that distinguishing between the levels of protection on the basis of the identity of the 166 / brandishing the first amendment speaker when that speaker is a nonhuman entity is a form of invidious discrimination and that there is nothing about the corporate status of the speaker that invalidates or undermines the legitimacy of its contribution. These claims echo the ›ights of rhetoric along the same lines in the Supreme Court’s Citizens United decision. They make it sound as if commercial speakers have dif‹culty having their voices heard, when nothing could be farther from the truth. Corporate in›uence in the legislative process through lobbying and other forms of political speech is so pervasive as to constitute an unfair distortion of the democratic process. Corporate money ›oods into the political process every day, arguably distorting the priorities of elected representatives. Perhaps more insidiously, marketing mentality dominates politics so thoroughly that politicians use the same polling ‹rms, the same consultants, and the same techniques that many marketers feel comfortable...